Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd
[2005] NNTTA 6
•8 March 2005
NATIONAL NATIVE TITLE TRIBUNAL
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, [2005] NNTTA 6 (8 March 2005)
Application No: WO04/43
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Linda Champion on behalf of the Central West Goldfields People – WC99/29
(native title party)
-and-
The State of Western Australia (Government party)
-and-
Internickel Australia Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 8 March 2005
Catchwords: Native title – future act – proposed grant of exploration licence –expedited procedure objection application – direct interference with carrying on of community or social activities unlikely – interference with sites of particular significance unlikely – major disturbance to land unlikely – act attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth) ss 29, 151(2), 237
Mining Act 1978 (WA) ss 63, 66
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18
Cases:Cheinmora v StrikerResources NL (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Re Tjupan Peoples [1996] NNTTA 40; (1996) 134 FLR 462
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Ms Jennifer Stuckey-Clarke
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO03/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC
Representative of the
native title party: Ms Elizabeth Sambo
Counsel for the
Government party: Mr Trevor Creewel & Ms Karen Dougall, State Solicitor’s Office
Representative of the
Government party: Mr Clyde Lannan, Department of Industry & Resources
Representative of the
grantee party: Mr Shannon McMahon
REASONS FOR DETERMINATION
Background
On 11 February 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E30/269 (‘the proposed licence’) to Internickel Australia Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiation required by s 31 of the Act).
On 19 April 2004 Linda Champion, a named applicant and representative of the Central West Goldfields People (‘the native title party’) lodged an expedited procedure objection application with the Tribunal, relying on all three limbs of s 237 of the Act. The native title party’s application for a determination of native title (WC99/29) was entered on the Register of Native Title Claims from 4 October 1999.
The area, location and extent to which the proposed licence overlaps the registered native title claim is as follows:
E30/269 - 17.86 square kilometres, 101 kilometres west of Menzies in the Shire of Menzies; 100%.
Conduct of the Inquiry
On 29 April 2004, the Tribunal made Directions for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure is attracted.
The Government party complied with the Directions on 17 September 2004. No material relevant to the inquiry was submitted by or on behalf of the native title party by the due date of 24 September 2004.
On 22 October 2004 I convened a Listing Hearing during which Ms Elizabeth Sambo, representing the native title party, indicated that her personal circumstances had prevented her from submitting contentions and evidence on behalf of the native title party in accordance with the date set.
During this Listing Hearing, the grantee party advised it was awaiting the lodgement of the native title party's contentions and evidence before considering lodging their own. The grantee party also advised it had already executed a Regional Standard Heritage Agreement (‘RHSA’), on which it chose to rely. This RHSA had been forwarded to the Goldfields Land & Sea Council (‘the GLSC’) the Native Title Representative Body (‘NTRB’) for the area in January 2004 and had also been signed on 25 June 2004 by Victor Cooper and Dorothy Dimer, two of the eight named applicants on the Central West Goldfields Claim. In response, Ms Sambo indicated that the terms of the RHSA had not been endorsed by all of the named applicants. Given that the Tribunal was to facilitate discussions between the members of the Central West claim group on 29 October 2004 to see whether the RSHA could be modified to make it acceptable to them, the grantee and Government parties were prepared to allow time for the native title party to consider whether it would adopt a modified version of the RHSA.
On 5 November 2004 I convened an Adjourned Listing Hearing at which I was advised that the native title party had decided not to endorse a modified RSHA and had approved its own Central West Alternative Heritage Agreement (‘CWAHA’). As it was now clear that this matter was unlikely to be resolved by agreement, I issued amended Directions, requiring native title party compliance by 19 November 2004, with grantee party compliance to follow on 26 November 2004. I also directed that the CWAHA be forwarded to the grantee party for its consideration.
On 19 November 2004 the native title party complied with the amended Directions. On 29 November 2004 the grantee party advised the Tribunal that it would rely on the submission made previously by the Government party.
On 1 December 2004, the Government Party submitted amended contentions to replace those of 17 September 2004. I accepted these amendments and allowed further time for parties to inspect that evidence and make further submissions if they chose. No further submissions were received from any party.
On the same date, the Government party requested the determination for this matter be adjourned until such a time as the reasons for my decision in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (‘Linda Champion’) were published on the basis that issues relating to the Government party’s RSHA would be considered in that matter and provide some precedent value for the conduct of future expedited procedure matters involving them. On 3 December 2004 at a further adjourned Listing Hearing parties agreed to the Government party’s request.
During this hearing, the grantee party advised it had considered the CWAHA but was not prepared to enter into it as the terms were unacceptable. I therefore directed that on or before 10 December 2004, the grantee party serve a copy of the partially executed RHSA on the Tribunal and Ms Sambo. I also directed that by 10 December 2004 the Government party lodge further submissions outlining the history, policy and procedures relating to the RHSA. I allowed the native title and grantee parties until 15 December 2004 to lodge any further submissions in response to the Government party’s additional material.
On 31 January 2005, additional contentions were received from the native title party.
All parties agreed this matter can be dealt with by the Tribunal on the papers and I am satisfied I can adequately deal with the matter in this way in accordance with s 151(2) of the Act.
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley vWestern Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[35]). I adopt those findings for the purposes of this inquiry. The Mining Act has recently been amended including in relation to exploration licences. The amendments come into effect on 30 March 2005 but do not apply to exploration licences applied for or granted prior to that date. Whether these amendments will be relevant to future expedited procedure inquiries will need to be considered after the amendments come into effect.
The Regional Standard Heritage Agreement (RSHA)
Throughout the preliminary proceedings the grantee party maintained that it had followed the Government party’s procedures relating to the RSHA and because it had been executed by two of the eight persons named as part of the Central West Goldfields applicant and registered native title claimant, the agreement was binding. Ms Sambo submitted that the persons who had signed did not have the authority of the claim group to enter into the agreement and that the GLSC (to whom the RSHA had been sent) no longer represented the Central West Goldfields claim group at the time the signatures were obtained. It appears that the two signatures were obtained by the GLSC. In these circumstances I cannot treat the RSHA as a binding agreement between the native title party and grantee party which can be taken into account in determining this matter. The RSHA can only be considered relevant in the way set out in Linda Champion (at [29]-[35]). In short, the RSHA is evidence of the grantee party’s intention regarding the protection of sites of significance and of a preparedness to enter into an agreement for a heritage survey but is not a binding agreement.
Evidence in relation to the proposed act
The Government party documentation reveals 100% of the area of land subject to the proposed licence to be unallocated Crown land.
There are neither Aboriginal communities nor sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) within or in the immediate vicinity of the proposed licence.
According to the mapping documentation supplied by the Government party Exploration Licences 30/230, 30/240 and 30/256 appear adjacent to the proposed licence to the west and south with small overlaps. Tribunal data indicates no objections have been received in relation these licences. Vacant Crown Land abuts the proposed licence to the north and east.
The quick appraisal documentation from Tengraph shows a history of limited exploration and interest in the area of the proposed licence and that adjacent to it. The quick appraisal for the proposed licence lists ten dead tenements overlapping the proposed licence. Of that number, five tenement applications are said to have been ‘withdrawn’ and one ‘forfeited’, leaving a total of four ‘surrendered’ tenements. Two Mineral Claims were granted in 1970 and 1971 and surrendered in 1972; and two Exploration Licences were granted in 1993 and surrendered in 1998. The three overlapping Exploration Licences (E30/230, E30/240 and E30/256) with small overlaps notified under s 29 in 1999, 2000 and 2003 are said to be ‘live’, two of which are held by the grantee party. None of these three currently overlapping exploration licences overlap the proposed licence by more than 5%.
With respect to areas adjacent to the proposed licence area the quick appraisal for E30/230 shows 14 Mineral Claims ‘surrendered’ in 1971 and 1972 after no more than three and a half years of grant. These overlapped E30/230 at no more than 2%. The appraisal also shows two Exploration Licences granted in 1993 and 'surrendered' in 1998 which overlapped E30/230 at 95.2% and 4.8%. The quick appraisal for E30/240 shows 41 Mineral Claims were ‘surrendered’ in 1971 and 1972 after no more than three and a half years of grant. These overlapped E30/240 at no more than 1%. It also shows one Exploration Licence granted in 1993 and ‘surrendered’ in 1999 which overlapped 36.6% of E30/240. The quick appraisal for E30/256 shows that one Mineral Claim was granted in 1972, ‘surrendered’ in 1973 and overlapped at 1%. One Exploration Licence, which overlapped 100%, was granted in 1993 and ‘surrendered’ in 1998. No live tenements overlap E30/230, E30/240 and E30/256.
My findings based on this history of the previous grant of mining and exploration tenements is that there has been intermittent exploration activity but no sustained mining or exploration over the area of the proposed licence or in the near vicinity.
The grant of the proposed licence will be subject to the endorsements and conditions set out hereunder:
‘EXPLORATION LICENCE No. 30/269
ENDORSEMENTS1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act, 1972.
2. The grant of this licence does not include the land subject of prior Exploration Licence 30/230, 30/240 and 30/256. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulation 1981 entitled "Transitional provisions relating to Geocentric Datum of Australia".
CONDITIONS
1. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.
2. All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Industry and Resources (DoIR). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Office, DoIR.
3. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4. Unless the written approval of the Environmental Office, DoIR is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.’
Endorsement 1 and Conditions 1-4 inclusive are standard clauses applicable to the grant of all exploration titles. The additional endorsement applies to the proposed licence in recognition of the overlapping Exploration Licences.
In addition to these endorsements and conditions the Government party draws attention to s 63 of the Mining Act 1978 (WA), which lists the conditions to be complied with by the grantee relating to making good disturbance to land and prevention of damage to property and livestock. The Government party contends that should the proposed licence be granted the requirement for compliance with these conditions ensures the act is not likely to interfere with the carrying on of community and social activities (s 237(a)) by the native title party in relation to the area of land concerned.
In relation to s 237(b) of the Act, the Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act, to which the grantee party’s attention is drawn upon grant of the proposed licence, would protect areas or sites of particular significance from interference. In addition it is said the grantee party has executed a Standard Heritage Agreement, between the grantee party and the Objector (i.e. the RSHA) in the form appended to Government party contentions. As discussed above the RSHA has not been agreed to by the native title party.
The Government party also relies on a document entitled “Guidelines for Consultation with Indigenous People by Mineral Explorers” (July 2004), which are distributed by the Tenure and Native Title Branch of the Department of Industry and Resources to all applicants for mining and exploration tenements. These Guidelines summarise the relevant provisions of the following Acts as they relate to mining and Aboriginal heritage: Aboriginal Heritage Act 1972 (WA); Aboriginal Affairs Planning Authority Act 1972 (WA); Aboriginal Communities Act 1979 (WA); Mining Act 1978 (WA); Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); and Native Title Act 1993 (Cth). The Guidelines also clarify State Government policy with respect to the protection of Aboriginal heritage, and the resulting consultation and survey process. Their effect has been recently considered in Linda Champion (at [69]-[71]) when the Tribunal confirmed that the combined effect of the Aboriginal Heritage Act 1972 (WA) and Guidelines was, in most cases, to make interference with sites of particular significance unlikely.
On 21 February 2005 the Government party advised that the following additional condition will be imposed on the grant of the proposed licence in this matter:
‘The Licensee, if so requested in writing by the Central West People, the applicants in Federal Court application no. WAG65/98 (WC99/029), such request being sent by pre-paid post to reach the Licensee’s address (c/o McMahon Mining Title Services Pty Lts, PO Box 8638, Perth Business Centre, Perth WA 6849) not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Central West Goldfields People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Goldfields Land and Sea Council in respect of the area covered by this licence.’
Grantee party submissions
The grantee party submitted a copy of the RHSA, referred to above, executed by the grantee party and subsequently on 25 June 2005 by Dorothy Dimer and Victor Cooper, two of the eight named applicants.At the Listing Hearing of 3 December 2004, Mr Shannon McMahon, representing the grantee party, stated the grantee intended to comply with the provisions of the Aboriginal Heritage Act and the RHSA.
Native title party contentions and evidence
The native title party’s contentions assert that the grant of the proposed licence will impact on all three limbs of s 237 of the Act for the following reasons:
Members of the native title party visit the "chain of interconnected water-sources" including Johnson Rocks (and associated Johnson Soak) and Hospital Rocks (and associated Government Well) and "other such sites on the rocky areas either within or in close proximity" to the proposed licence to hunt and gather traditional foods, bush medicines and materials to manufacture traditional tools and implements. “The grant of the tenement will result in large areas of their traditional lands there being closed off to the Objectors while exploration and associated activities are being carried out.”
Intensive exploration will destroy food “sometimes beyond regrowth” and cause the evacuation of wild game.
Use of the area by elders to educate younger native title party members in the traditional methods of hunting and gathering will be curtailed or prevented.
The "destruction of part or all of the spirituality of the land" that will occur as a result of the grant will cause the spiritual link to the land to “be diminished and commence to disintegrate, as has happened historically to other Aboriginal communities that have lost their link with the land”. The native title party contends that this impact will be “substantial in nature”.
The provisions of the Aboriginal Heritage Act apply only to registered sites and "cannot afford protection to areas or sites on the land whose presence is not known to the Grantee Party".
Section 62 of the Aboriginal Heritage Act provides “an escape route for parties intent on not abiding by the spirit of the Act” (this section provides that “… it is a defence for the person charged to prove that he did not know and could not reasonably be expected to have known, that the place or object to which the charge relates was a place or object to which this Act applies.”). The native title party considers the intentions of any grantee party not willing to consult with the native title party regarding heritage “suspect”.
The grantee party has not entered into the heritage agreement proposed by the native title party.
The rights conferred by the grant of the proposed licence (s 66 Mining Act) are likely to involve a major disturbance of the land, the definition of which is "a culturally weighted assessment". Disturbance to a rocky outcrop may be viewed as "minor from the viewpoint of the general community”. However, such disturbance could be "a serious and major matter" for the native title party and any Aboriginal people associated "if the outcrop in question was established in the Creative Era by the Dreaming ancestors..."
The rights conferred by the grant of the proposed licence (s 66 Mining Act) constitute major disturbance of the ground “even from the viewpoint of the general community”.
These contentions are supported by evidence contained in an affidavit of Elizabeth Sambo sworn in Coolgardie on 18 November 2004 as follows:
‘I, ELIZABETH SAMBO, of PO Box 21, Coolgardie, in the State of Western Australia, Native Title Applicant, being duly sworn make oath and say as follows:
1. That I am an Applicant for a determination of native title in relation to the area of land and waters affected by the application of the Grantee Party for Exploration Licence E30/269.
2. Aboriginal traditional religion, whose practices and doctrines I and my family follow is a land-based religion, that is, its shrines, holy places and places associated with our ancestors are part of the land and are often not marked or obvious to people not of our religion or of our beliefs.
3. Aboriginal religion distinguishes between the roles, duties and obligations of men and women. That is not to say that one is inferior to the other or less important than the other. Both men and women have a role in the Aboriginal religion and in carrying on the traditions of the creation time with is called in English the Dreaming. Both men and women share certain holy places on the land, but both men and women also have their own special holy places.
4. The senior women of each Aboriginal group have the duty of maintaining the spirituality of the land and of seeing that this spirituality is passed on undamaged to the next generation. Along with my mother Mrs Linda Champion, and my aunt, Mrs Dorothy Dimer, I am a senior woman of the Central West people.
5. Damage to holy places on the land will take from, or sometimes destroy, the spirituality that is in the land, If that happens then the senior women of the group in whose land the damage has occurred have failed in their duty to maintain the spirituality of the land and to pass that on undamaged to the next generation.
6. Some of the shrines and holy places on the land are specific to the group in whose lands they are located, that is, they refer only to ancestral or Dreaming persons or spirits who are associated only with that particular area. If damage occurs to these holy places which the senior women of the group had it in their power to prevent, then we believe that misfortune, illness and unexpected death will occur within the group. The blame for these occurrences will rest with those people who could and should have prevented the damage in the first place.
7. Some of the shrines and holy places on the land deal with ancestral or Dreaming spirits or persons who travelled extensively throughout the country and crossed and re-crossed the traditional lands of many different Aboriginal groups. It is a fact of Aboriginal religion that the people in whose traditional lands shrines or holy places associated with ancestral or Dreaming spirits or persons of this nature are located are held responsible by all other peoples associated with that particular Dreaming throughout the country for the protection from damage of those shrines and holy places. This is a duty that the people from each specific tract of traditional country cannot avoid. If damage occurs to these holy places which the senior women of the particular group in question had it in their power to prevent, then we believe that misfortune, illness and unexpected death will occur within the community of all persons associated with that Dreaming. The blame for these occurrences will rest with those people who could and should have prevented the damage in the first place. Traditional punishments will probably be levelled against them.
8. The Government of Western Australia has enacted the Aboriginal Heritage Act in order to, amongst other things, assist the traditional Aboriginal people of Western Australia in fulfilling their obligations to protect shrines and holy places on their land and also on the lands of their neighbours, should a threat be posed against shrines and holy places associated with a Dreaming that passes through the traditional lands of several different groups. However, the Department of Indigenous Affairs and Aboriginal Cultural Material Committee that administer the legislation can only act to protect places that they know about. A great many shrines and holy places, probably the majority of them in Western Australia, have never been registered for protection with that Department or Committee because nobody has ever had cause to carry out that registration, either because the relevant Aboriginal people were never asked about a particular area within their traditional lands, or because there was no reason to register such places, as there was no threat to them. Therefore, the fact that there are no listings in the Register of Aboriginal Sites for sites in a particular area is not indicative of the presence or absence of such places. Rather it is indicative of the fact that nobody has previously inspected that particular area for such sites. That is, it is indicative of a failing or shortcoming in the database rather than of a level of certainty that such sites do not exist in any given area.
9. E30/269 is located in close proximity to the Evanston-Menzies Road. That road follows a chain of traditional Aboriginal waterr-sources that were created in the Dreaming and are of high spiritual significance to my people in accordance with our traditions. The water which travels under the ground represents a spiritual force that keeps my people alive. Destroy it and you destroy my people. Some of these spiritual sites, such as Johnson Rocks and Hospital Rocks, which are close to the tenement in question, are mapped and their presence is recorded. Many are not and could be destroyed by mineral exploration carried out without first consulting Aboriginal people traditional to the area.
10. People from traditional Aboriginal communities throughout the Great Victoria Desert also hold me, and the other senior women from the Central West group, responsible for the protection from damage of shrines and holy places associated with the Dreaming in our traditional lands. If any of these shrines or holy places is damaged, then we will be held responsible for the damage and for the misfortune, illness and perhaps death that will follow.
11. E30/269 is over eight kilometres long north-south and over three kilometres across at its widest point. It is located in close proximity to the Evanston-Menzies Road and to Johnson Rocks and Hospital Rocks. It either encloses or is in close proximity to a rock outcrop where my father dug a soak to gain access to the spiritual force of the waters beneath. I visit that site often with my fammily. None of our elders is a skilled map-reader. Also, with only poor quality maps supplied by the National Native Title Tribunal and Department of Industry and Resources, it is simply impossible to relate my traditional knowledge of the country there to the pieces of paper I have been given.
12. The Central West people, in recognition of the traditional importance of the country in which E30/269 is situated, requested that a full Aboriginal heritage survey of the lease in question should be carried out in order that any sites identified can be protected from destruction. The Company can then carry on its exploration and mining. To that end, the Central West people provided the Applicant with a standard Central West Heritage Agreement. The Central West people indicated that this could be modified where amendments are agreed upon.
13. The Applicant has nominated the Goldfields Land Council Standard Heritage Agreement, which is used by clients of the GLC. The Central West people are not represented by the GLC, and the agreement nominated by the GLSC has no standing with the Central West people.
14. Any unrecorded Aboriginal sites in E20/269 are in danger of destruction by exploration and mining activities. If any shrines or holy places associated with the Dreaming are destroyed, then the blame for that destruction will be placed against the senior women of the Central West people by other traditional Aboriginal persons. The senior women of the Central West people will be held to have failed in their traditional duty of nurturing the spirituality of the land and in passing that land on to the next generation with its spirituality intact. To avoid this happening, it is necessary for the leases in question to be visited by the Central West people in the company of a qualified anthropologist acceptable to the Aboriginal people, in order to demarcate and delineate the sites in question. The work should be carried out under prescribed conditions that are based upon the Central West people’s Aboriginal heritage protocol, are clearly understood by all parties, and can be utilised by all parties for all future activities of the Company in the traditional lands of the Central West people.
15. In brief, therefore, the traditional religious life of the Central West people will be put under threat by the grant of E30/269 without a full Aboriginal heritage survey being first of all carried out over the leases. In addition, the community life of the Central West people will be adversely affected should damage to shrines or holy places associated with the Dreaming occur, as people throughout the Great Victoria Desert will hold them responsible for the ills that will occur following such damage. It is therefore the duty of the Central West people to pursue to the end all avenues open to them to ensure that such damage does not occur.
16. In addition, for as long as living memory and probably for many generations before that, it has been the custom of the Central West people to visit the area in which E30/269 is located to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools there. I contend that the unrestricted grant of the exploration licence in question will interfere directly with these activities, as there will be areas of the leases that will be closed to access by my people.’
Ms Sambo is one of eight persons who collectively form the applicant for the Central West Goldfields People native title claim, and currently represents the group in future act matters. Her evidence is uncontested and I accept her statement that she is a senior woman of the Central West people, with attendant responsibilities towards the guardianship of the land with which the native title party is associated.
Additional contentions from Ms Sambo received on 31 January 2005 raise concerns in relation to Ularring Soak and Rock, Pigeon Rocks and other unnamed rocks which may exist within or in the vicinity of the proposed licence. Ularring Soak and Rock and Pigeon Rocks which on the evidence may be sites of particular significance are respectively located some 50 kilometres to the east and west of the proposed licence and are of no direct relevance. The additional contentions also refer to other rock holes in unspecified locations along the Menzies to Evanston Road and the road from Southern Cross. The Tribunal’s Geospatial Unit plotted the named areas on a map and all gazetted soaks, rocks, bores, wells and rocky outcrops in an area 70 kilometres by 60 kilometres around the area of the proposed licence. None are close to the proposed licence area although the topographical map shows a ‘rocky outcrop’ approximately 5 kilometres to the south-east of it. There is insufficient evidence from the supplementary contentions to gauge the nature of the significance of these sites to the native title party. However, I am prepared to infer that some of them at least are the same sites referred to in paras 9 and 11 of Ms Sambo’s affidavit and which are likely to be sites of particular significance (see para [45]).
Community or social activities (s 237(a))
For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party. The native title party’s contentions signed by Ms Elizabeth Sambo (para 3) say that it ‘has been the custom of the objectors to visit areas in the vicinity of the Evanston-Menzies Road and surrounds to hunt for traditional meat food and to gather traditional vegetable foods, bush medicines and material for the manufacture of traditional tools and implements’. It is then said that exploration will lead to ‘large areas’ of traditional land being closed off and that there will be evacuation of wild game and destruction of vegetable food and fruits. The contentions further say that the claimant group ‘have been accustomed to bring young group members and other children regularly to the Johnson Rocks/Hospital Rocks area for the purpose of instructing them’. The contentions then give an example of this activity by reference to Elizabeth Sambo’s brother Dennis, her mother (Linda Champion) and their uncles. This evidence suggests that this activity occurred in the past as there is no specific reference to contemporary activity of this kind.
At paragraph 11 of her affidavit, Ms Sambo describes an unidentified rocky outcrop, which may or may not be within the proposed licence, that was utilised by Ms Sambo's father and that Ms Sambo visits "often with my family". Ms Sambo asserts that her father "dug a soak to gain access to the spiritual force of the waters beneath". On the evidence it is impossible to identify the precise location of this rock although the detailed mapping done by the Tribunal does not reveal any gazetted soaks or rocky outcrops on the proposed licence area. It is possible but by no means established that the rocky outcrop referred to above is the same one as identified on the topographical map provided by the Tribunal’s Geospatial Unit some 5 kilometres to the south-east of the proposed licence area. Again, this is not on the proposed licence area.
According to mapping documentation, the proposed licence is approximately three kilometres south of the Evanston-Menzies Road, between Johnson Rocks, Hospital Rocks and there are a number of rocky outcrops in the general vicinity. Johnson Rocks is some 15 kilometres to the west of the proposed tenement area and Hospital Rock some 10 kilometres distant to the east.
The evidence of community and social activities of the native title party is generally not specific in terms of its nature, frequency or the number of people involved. The only sworn testimony is that Ms Sambo and her family visit the rocky outcrop ‘often’ but its location is not specified. In any event it appears that any activities are not restricted entirely to the area of the proposed licence or indeed the Johnson Rocks/Hospital Rocks area. Further, the grant of the proposed licence does not confer exclusive rights of access to the grantee party. Any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wide area over which any hunting or gathering may occur. Any restriction would also be temporary.
The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]). In this case the area of the proposed licence is over unallocated Crown land so there is no question of pastoral activities having interfered with the native title party’s community and social activities. The extent of prior mining or exploration activity is also limited. Despite the lack of prior and current impact from these factors the evidence of the native title party’s current community or social activities is still quite limited. I find that there is unlikely to be any substantial direct interference with them.
With respect to the contention that the spirituality of the land will be destroyed by exploration activities, the Tribunal accepts the evidence relating to the responsibility of claimants to care for the land and that failure to do so properly will lead to fear of misfortune, illness or death. The Tribunal has dealt with similar situations in other determinations (Walley at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO03/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’
In this matter, there is not only evidence that the claimants believe that misfortune, illness or unexpected death will occur if there is damage to special places for which they have responsibility but also that traditional punishment, ‘will probably be levelled against them’. The evidence, therefore, goes beyond what was considered in Walley. The same evidence arose recently in Linda Champion at [66]. In that matter I noted that I can accept that if it could be shown that traditional punishments were in fact administered in the Goldfields area in circumstances where Aboriginal people from that area or elsewhere felt that persons with responsibility for country were not properly attending to their obligations, then this could amount to direct interference with the community and social activities of the native title party claimant group resulting from the grant of an exploration licence. The difficulty with such submissions is that exploration activity has occurred over many years in the Goldfields area but there is no evidence that traditional punishment has in fact been administered in the circumstances outlined by Ms Sambo. Ms Sambo makes a general assertion that traditional punishment will probably be imposed but gives no specific detail of whether this has in fact occurred in similar situations in the Goldfields in the past.
A further difficulty with Ms Sambo’s contentions, which also arose in with Linda Champion at [66], is that the native title party asserts that a proper heritage survey (in her view one carried out according to a CWAHA) will ensure that her responsibilities to look after the country are met. My finding in relation to s 237(b) (see below) is that sites of particular significance are not likely to be interfered with because of the regulatory regime to protect sites. This may involve the conduct of a heritage survey as part of the normal procedures but if it did not the native title party can insist on a heritage survey carried out in accordance with the RSHA because of the proposed condition which will be imposed on the grant. While there are differences between the RSHA and CWAHA, I am satisfied that both involve the conduct of surveys that will identify Aboriginal heritage including sites of particular significance to the native title party.
Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary - Cheinmora v Striker (1996) 142 ALR 21 at 34-35) significance to the native title party in accordance with their traditions. The fact no sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean there may not be sites or areas of particular significance to the native title party over the area of the proposed licence. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act 1972 (WA) protects all Aboriginal sites, whether on the Register or not.
The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal (I adopt the findings in Walley at [50]-[51]). The Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]) found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely. More recently in Linda Champion at [70]-[71] I found that the combined effect of the Government party's revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) which is sent out to each grantee of an exploration or prospecting licence and increase in penalties under the Aboriginal Heritage Act was to enhance the effectiveness of the regulatory regime for the protection of Aboriginal sites. I adopt those findings for the purpose of this inquiry. As in the past, the Tribunal will continue to have regard to whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
At paragraphs 9 and 11 of her affidavit, Ms Sambo states that the area along the Evanston Menzies Road contains waters which underlie Johnson Rocks, Hospital Rocks, the unidentified rocky outcrop utilised by Ms Sambo's father and other outcrops and that these are "spiritual sites" of high significance created in the Dreaming. This evidence is uncontested and I accept that it establishes the existence of sites of particular significance to the native title party in the area specified along the Evanston-Menzies Road. I also accept the native title party's claim that many of these sites have not been mapped or recorded. Whether any are within the area of the proposed licence is not established but there is a possibility that some may be.
I also note the native title party’s contentions that their concerns regarding the protection of these sites can be ameliorated by the execution of a heritage agreement defining protocols for the conduct of heritage surveys. The objection application states that the objection will be withdrawn once the CWAHA is entered into and a heritage survey carried out.
I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act make it unlikely that there will be interference with any area or sites of particular significance. I am satisfied that the regulatory regime in place will ensure that interference with sites is unlikely. Ms Sambo says that a full Aboriginal heritage survey is necessary after which the grantee party would be free to carry on exploration. The grantee party has expressed its willingness to conduct a heritage survey (albeit of the kind described in the RSHA) and is mindful of its responsibilities under the Aboriginal Heritage Act to protect Aboriginal Heritage. I accept that the grantee party will consult with the native title party about these matters if the tenement is granted. As stated above, having perused both agreements, I can see no reason to suggest that Aboriginal heritage will be protected more effectively by one than the other. If, after consultation, agreement cannot be reached the native title party under the Government party’s proposed condition can insist on a survey pursuant to the RSHA (Linda Champion at [33], [35]). Most of the identified sites are not on or near the tenement area. The possibility exists that some sites of particular significance exist on the area. In both cases I am satisfied that the Government party’s regulatory regime which applies to them means that there is no real risk they will be interfered with.
Major disturbance (s 237(c))
Section 237(c) of the act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely to involve major disturbance, the meaning of which was considered in Dann v Western Australia (1997) 74 FCR 391. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.
The concerns of the native title party are set out in Ms Sambo’s affidavit and have largely been dealt with when considering ss 237(a) and 237(b). Apart from the sites of particular significance there is no direct evidence on the issue of major disturbance to land. The native title party again contends that a site survey is necessary to prevent major disturbance. For the reasons already given on s 237(b) I do not consider disturbance to land which amounts to interference with an Aboriginal site to be likely.
The native title party contends that the activities permitted by an exploration licence (s 66 of the Mining Act) constitute a major disturbance of the ground "even from the viewpoint of the general community". This generalised position has never been accepted by the Tribunal which has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place. In most cases (see for example Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia /Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), Mr John Sosso at [48]-[64] and Walley at [59]-[63]) the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so. However, this is not an inevitable finding in all cases and there have been exceptions (see Re Nyungah People [1996] NNTTA 18; (1996) 132 FLR 54; Re Tjupan Peoples [1996] NNTTA 40; (1996) 134 FLR 462; Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Ms Jennifer Stuckey-Clarke).
At paragraph 5 of the contentions, the native title party states that a permissible quantity of blasting or bulldozing, such as “ten metres by ten metres” for the construction of an exploration camp may be viewed as "minor from the viewpoint of the general community”. However, if that blasting were to occur on a granite outcrop "established in the Creative Era by the Dreaming ancestors", it would constitute major disturbance as defined by the Aboriginal community as a whole. While I accept that this would be the case and that it would probably constitute a major disturbance by reference to the broader community if such a site were involved there is no evidence that such activity is likely to result from the proposed exploration. In any event such a place is likely to be an Aboriginal site and protected in the manner described above.
In finding that there is not likely to be major disturbance to land I have also had regard to the fact that there are no Aboriginal communities in the vicinity, to the Government party’s regulatory regime in the Mining Act and conditions imposed dealing with ground disturbing activities and rehabilitation. There is no detailed evidence of any sensitive topographical, geological or environmental factors on the proposed licence area which would lead members of the Australian community generally to think that exploration activities would result in major disturbance to land.
Determination
The determination of the Tribunal is that the grant of exploration licence E30/269 to Internickel Australia Pty Ltd is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
8 March 2005
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