Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd

[2005] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, [2005] NNTTA 35 (30 May 2005)

Application No:        WO04/389

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-

Maincoast 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:  30 May 2005

Catchwords:             Native title – future act – proposed grant of prospecting licences –expedited procedure objection application – application for confidentiality direction (suppression order) refused – 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:Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18

Acts Interpretation Act 1901 (Cth) s 36(2)

Federal Court of Australia Act 1976 (Cth) ss 17(4), 50

Native Title Act 1993 (Cth) ss 77, 109(2), 148(b), 151(2), 154, 155, 162(2), 237

Mining Act 1978 (WA) s 46

Cases:Ben Ward & Others on behalf of the Miriuwung Gajerrong Peoples v Western Australia & Ors, WAG 6001/1995, 11 April 1997 (unreported)

Cheinmora v StrikerResources NL (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391

Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner

Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/197, [2005] NNTTA 24 (12 April 2005), Hon C J Sumner

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 on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

Little v Oriole Resources Pty Ltd [2005] FCA 506 (29 April 2005)

ReIrruntyju-Papulankutja Community/Western Australia/ Broadmeadow Pty Ltd, NNTT WO95/7, [1995] NNTTA 20 (6 October 1995); (1996) 1 AILR 222

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Western Australia v Ward & Others [1997] 585 FCA (8 July 1997); (1997) 76 FCR 492; 145 ALR 512

Yallourn Energy Pty Ltd v Bull [1999] NNTTA 237; (1999) 170 FLR 369

Representative of the

native title party:             Ms Elizabeth Sambo

Representative of the

Government party:         Mr Clyde Lannan, Department of Industry & Resources

Representative of the
grantee party:                 Mr Nathan McMahon, Cazaly Resources Limited

REASONS FOR DETERMINATION

Background

1. On 25 August 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘NTA’) of its intention to grant prospecting licences P15/4582 and P15/4583 (‘the proposed licences’) to Maincoast Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grants attracted the expedited procedure (that is, are future acts which can be done without the normal negotiations required by s 31 of the NTA).

2. On 30 December 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 NTA. 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.

3. An issue arose in relation to whether the objection was received within the statutory period of four months from the s 29 notification day. The deemed closing date taking into account the weekend and public holidays was 29 December 2005 (s 36(2) Acts Interpretation Act 1901 (Cth)). Although an attempt was made to collect Tribunal mail on 29 December 2004, no Australian Post mail was delivered to or otherwise reached the Tribunal on 29 December 2004. On 30 December 2004 the mail for both days was received by the Tribunal together. For this reason there was some uncertainty whether the objection would have been received by the Tribunal within time. The Tribunal decided not to take a strict and technical approach to the deemed closing date and considered it likely, given the post mark of 24 December 2004, that the objection would have been delivered on 29 December 2004, if Australia Post had provided the mail for delivery. The objector was given the benefit of the doubt regarding the day the objection was first able to be delivered and it was therefore accepted (s 77). When the parties were notified of the receipt of the objection their attention was drawn to this issue. No party challenged the acceptance decision and the Tribunal therefore has jurisdiction to deal with the objection.

4. The proposed licences are located in the Shire of Coolgardie and are overlapped 100% by the registered claim of the native title party.  Area and location are as follows:

• P15/4582 - 133.01 hectares, 23 kilometres south westerly of Kambalda

• P15/4583 - 135.93 hectares, 22 kilometres north westerly of Widgemooltha

1. In addition the Widji registered native title claimant group (WC98/27) entirely overlaps the proposed licences and has the status of a native title party.

2. On 19 September 2004 the Widji native title party also lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences (WO04/258).  The application was dismissed at a hearing on 24 March 2005 on the grounds that the native title party had failed within a reasonable time to proceed with the objection and to comply with a direction of the Tribunal (s 148(b)).  Reasons for the dismissal were published on 30 May 2005.

Conduct of the inquiry

1. On 17 February 2005, in accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions were in the usual form which, if the parties consent, allow a four month period from the s 29 closing date for objections for parties to negotiate or finalise agreement over the grant of the tenement, usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage. Government party compliance was due on 18 April 2005 and native title party compliance on 26 April 2005. At the preliminary conference convened on 1 March 2005, the grantee party representative, Mr Nathan McMahon, advised that a Regional Standard Heritage Agreement (‘RSHA’) for the Goldfields region had been executed and forwarded to the Goldfields Land and Sea Council, the regional native title representative body. Mr McMahon indicated that the grantee was not prepared to consider any other agreements and requested that the matter be determined by the Tribunal as soon as practicable. At the request of the grantee party, and with the support of all other parties, directions were amended to align with the associated Widji objection (WO04/258) requiring native title party compliance by 12 April 2005. During the Listing Hearing of 15 April 2005, I approved a further extension to the native title party to enable it to provide affidavit evidence in support of its statement of contentions on or before 29 April 2005.

2. Contentions and evidence from the Government party and the native title party have now been submitted. The grantee party has sought to rely on contentions submitted by the Government party. I am satisfied that I can adequately deal with the matter on the papers in accordance with s 151(2) of the NTA.

Legal principles

1. Section 237 of the NTA 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.’

1. 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 exploration and prospecting licences 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.

Evidence in relation to the proposed act

1. The proposed licences are to be granted only over vacant crown land.  There are neither Aboriginal communities nor sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) on or in the immediate vicinity of the proposed licences.

2. The mapping documentation provided by the Government party shows extensive exploration interest in the area of the proposed licences and that adjacent to it, and Tengraph Quick Appraisals show one pending and one live exploration licence, one live prospecting licence and one pending mining lease overlapping or abutting the subject area.  In addition, the list of dead tenements evidences a number of mineral titles active between 1988 and 2003, as well as six mineral claims for which the ‘death’ date is recorded as 1982.  It is clear that the entire area has been subject to considerable exploration and mining activity and there is continued interest in the area.

3. In addition to the objection lodged by the Widji native title party in relation to these proposed licences, a further seven objections have been lodged between 1998 and 2003 in relation to tenements overlapping or abutting the area subject to this objection. Of these, three were resolved by withdrawal of the objection, three by withdrawal of the associated tenement applications (and subsequent dismissal pursuant to s 148(a) of the NTA), and one objection (WO01/601) was not accepted on the grounds that the objector was not authorised to represent the native title party. No determination that the expedited procedure is not attracted was made.

4. The grant of the proposed licences will be subject to the standard endorsement and conditions applicable to all prospecting licences in Western Australia as previously set out in Leonne Velickovic on behalf of Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/61, [2005] NNTTA 11 (19 March 2005), Hon C J Sumner at [16].

5. The Government party will also impose the following condition on the grant of the proposed licences (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 a [24], [33]-[34]):

   ‘The Licensee, if so requested in writing by the Central West Goldfields People, the applicants in Federal Court application no. WAG 65 of 1998 (WC99/29), such request being sent by pre-paid post to reach the Licensee’s address, c/o Symonds Hodgkinson, PO Box 966, Canning Bridge WA 6153, 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.’

6. In support of its contentions the native title party has submitted an affidavit of Elizabeth Sambo, sworn in Kalgoorlie on 19 April 2005, which she requested be kept confidential.  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.

7. The contentions and evidence filed by the native title party are similar to those provided in other objections made by them with the exception of the proposed licence numbers and some material relating to sites.  The case of Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43, [2005] NNTTA 6 (8 March 2005), Hon C J Sumner (‘Internickel’) is such an example where the affidavit (quoted at [31]) and contentions filed are in almost identical terms to those filed in this matter. 

Request for a confidentiality direction

1. The request for confidentiality was subsequently clarified in discussions with Ms Sambo by the Tribunal’s Case Manager (Ms Sara Burke).  Ms Sambo’s position is that the affidavit can be made available to other parties to the objection to help them understand Central West Goldfields native title party’s concerns.  The affidavits are seen as a method of teaching parties about Indigenous culture and customary concerns, which is part of an ongoing education process.  Ms Sambo further requested that the affidavits not be quoted in full in arbitral determinations, nor made available for public access outside of the inquiry process.  No further basis for maintenance of confidentiality was provided.

2. The Government party’s response to this submission was:

   ‘Whilst the State has no issue with confidential information being kept within the forum of the expedited procedure inquiry process, the State also considers that the Tribunal Member should not be constrained from being able to refer to particulars contained within such affidavits if those particulars are integral to the determination outcome.

   … the State is of the view that there would need to be some compelling reasons or evidence to justify a departure from the regular determination process.’

3. The grantee party provided no submissions in relation to the request for confidentiality.

4. The relevant provisions of the Native Title Act 1993 (Cth) which empower the Tribunal to make directions to maintain the confidentiality of proceedings are as follows:

‘154  Hearings to be held in public except in special circumstances

Public hearings

(1)Subject to subsection (3), a hearing must be held in public.

Participation by telephone etc.

(2)If, when a hearing is in public, a person participates by a means allowed under section 153, the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the hearing is preserved.

Private hearings

(3)The Tribunal may, on its own initiative or on the application of a party, if it is satisfied that it is appropriate to do so, direct that a hearing, or part of a hearing, be held in private and give directions as to the persons who may be present.

Concerns of Aboriginal peoples or Torres Strait Islanders

(4)In determining if a hearing or part of a hearing is to be held in private, the Tribunal must have due regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

155  Tribunal may prohibit disclosure of evidence

The Tribunal may direct that:

(a)any evidence given before it; or

(b)the contents of any document produced to it;

must not be disclosed, or must not be disclosed except in such manner, and to such persons, as the Tribunal specifies. This section does not limit the Tribunal’s powers under section 154.’

Further s 109(2) provides that the Tribunal in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders but not so as to prejudice unduly any party to any proceedings that may be involved.

1. The current standard directions, given in preparation for expedited procedure objection inquiries, have been issued since 1995 and alert the parties to the confidentiality issue and provide for confidential information to be submitted to the Tribunal in a separate sealed envelope with details of the document supplied and the manner in which it is proposed that the Tribunal can use the information.

2. The Tribunal (and Federal Court) have enunciated principles applicable to the making of confidentiality directions or suppression orders (see cases cited in para 7.7: ‘Receipt of restricted evidence’, Guide to future act decision made under the Commonwealth right
   to negotiate scheme, NNTT, 28 February 2005 (Web site reference: >

   In Western Australia v Ward & Others [1997] 585 FCA (8 July 1997); (1997) 76 FCR 492; 145 ALR 512 (‘Ward’) the Full Federal Court demonstrated that the Court can go to considerable lengths to meet the customary concerns of Indigenous people by restricting the hearing of certain evidence to persons of a particular gender and by only permitting counsel and anthropologists of the same gender to be present during a hearing and for transcript only to be disseminated to persons of the same gender. The orders were made based on the traditional laws and customs of the claimant group relating to which persons may speak of and be privy to certain matters. The orders restricting publication of evidence were made pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) and were deemed necessary ‘to prevent prejudice to the administration of justice’. Section 17(4) of that Act empowers the court to order the exclusion of the public from proceedings if the presence of the public or particular persons ‘would be contrary to the interests of justice’. The Court held that policy considerations based on the public interest in open justice and procedural fairness to all parties must be balanced against the consequences for the administration of justice if, for instance, Indigenous people were forced into a position of either giving evidence in a manner which was contrary to their customary law or declining to give evidence and see their claim perhaps irretrievably weakened.

3. Although the statutory framework under the NTA is somewhat different the Tribunal has held that it can in general apply the principles set out in Ward (Yallourn Energy Pty Ltd v Bull [1999] NNTTA 237; (1999) 170 FLR 369 at [17]). Based on the provisions of the NTA the Tribunal accepts that the general rule is that right to negotiate inquiries are to be held in public and that there is no restriction on the evidence being publicly available unless there are special circumstances justifying confidentiality (Yallourn Energy at [12]).

4. Unlike the Federal Court of Australia Act there is no reference in the NTA to the interests of justice being the basis for confidentiality directions. Rather s 154(3) empowers the Tribunal to direct a private hearing ‘if satisfied that it is appropriate to do so’. Section 155 contains no specific direction as to the exercise of the discretion to suppress evidence. Section 154(4) makes it mandatory for the Tribunal to have due regard to the cultural and customary concerns of Aboriginal people and Torres Strait Islanders when deciding whether to direct a private hearing. This provision is different from the current general provisions relating to the exercise of the Tribunal’s functions. Prior to the 1998 amendments to the NTA the general provisions relating to the conduct of proceedings of the Federal Court (s 82(2)) and functions of the Tribunal (s 109(2)) under the NTA were that the cultural and customary concerns of Aboriginal people and Torres Strait Islander must be taken into account. The 1998 amendment altered these provisions to say that the Court or Tribunal may take account of such cultural and customary concerns but not so as to prejudice unduly any other party. The Ward decision was made before the 1998 amendment and s 82(2) in its mandatory form was referred to.  Whether the amendment to s 82(2) will affect the making of directions for dealing with restricted orders has not as far as I am aware come up for consideration by the Federal Court and as far as I am aware the practice sanctioned in Ward has not been modified. However, with respect to the Tribunal’s practice I consider that the specific (and mandatory) provisions in s 154(4) should be applied when considering applications for confidentiality rather than the general provisions in s 109(2). For this reason, the Ward principles remain directly relevant. Although s 154(3) talks of whether it is ‘appropriate’ to direct a private hearing I consider that the principles relating to the proper administration of justice set out in Ward provide guidance as to what is appropriate and that the balancing of interests approach used there is also applicable to Tribunal decision making. While s 155 of the NTA does not repeat s 154(3) I do not place any significance on this fact. Given the overall purpose of ss 154 and 155 they need to be read together as establishing a means for both conducting private hearings and maintaining the confidentiality of them subsequently. There would be little point in conducting a private hearing if transcript of it could be broadcast to the world. The interconnectedness of the two sections is recognised in s 155 which does not limit the powers in s 154. I confirm that, despite the different statutory provisions, it is appropriate for the Tribunal to apply the principles in Ward to the application for confidentiality directions made by Ms Sambo. 

1. As there has not been (and will not be) a hearing at which oral evidence will be taken on matters of a restricted nature, I understand Ms Sambo’s application to be that her affidavit:

• not be disclosed to anyone except the parties to these proceedings (s 155); and

• not be quoted in full in the determination.

I interpret the Government party’s submission to mean that the Tribunal should follow its normal procedures with respect to confidentiality and that any directions should be made in accordance with established principle.

1. Ward makes it clear that a mere assertion about the consequences of disclosure of evidence may not necessarily suffice to justify an order (per Hill, Sundberg JJ at FCR 500).  Branson J (at FCR 510) said there must be some evidentiary basis for the request, that is, evidence of the cultural or customary concerns or traditional law and custom which demonstrate that a direction is required.  In his original reasons for establishing guidelines for the receipt of gender restricted evidence and which was the subject of the appeal in Ward, was prepared to accept that the customary law of Aboriginal peoples relating to gender restrictions was ‘universally known’ (Ben Ward & Others on behalf of the Miriuwung Gajerrong Peoples v Western Australia & Ors, WAG 6001/1995, 11 April 1997 (unreported) Lee J (at p7)).  Taking the Federal Court’s approach into account the Tribunal has held that it can take a reasonable commonsense approach to the issue based on its experience and knowledge of Indigenous culture and law (Yallourn Energy at [18]) but it remains the case that the material which is to be restricted must be of a kind which according to Indigenous tradition, law and custom would cause concern to them or be contrary to the law and custom. Any concern must be of a cultural or customary kind. For instance, the Tribunal has found that mere tactical considerations are not valid reasons for ordering a private hearing (Yallourn Energy at [14]).

2. It is also the case that there may be some parts of an affidavit which qualify for suppression and others which do not.

3. In the present case, as Ms Sambo has not provided any specific basis for her application (I make no criticism of this, as I appreciate that she is one of the named applicants and not legally represented in the proceedings), the Tribunal will need to rely on its own knowledge and experience of the facts which justify suppression.  In coming to a decision the Tribunal is entitled to rely on past practice and its experience of the circumstances in which confidentiality orders have been sought and granted.  In Re Irruntyju-Papulankutja Community/Western Australia/Broadmeadow Pty Ltd, NNTT WO95/7, [1995] NNTTA 20 (6 October 1995); (1996) 1 AILR 222, the Tribunal (as with the Federal Court in Ward) was satisfied that according to tradition, certain evidence could not be heard by persons of the opposite gender.

4. Since then it has been extremely rare for confidentiality directions to be sought and made by the Tribunal in expedited procedure objection inquiries.  It has also been a regular practice for the Tribunal to quote verbatim from affidavits submitted by native title parties.  This has been a convenient way to ensure that the basis of the Tribunal’s determination is fully disclosed and, to date, has not been a practice objected to by native title parties (see Walley at [41] and other matters involving Wajarri Elders (WO01/486, WO02/87) and Wiluna Native Title Claimants (WO03/498).)

5. In a recent matter in the Goldfields area (WO04/61 at [20]) the native title party’s affidavit (Leonne Velickovic at para 12) contained a description of a Dreaming story and no confidentiality orders were sought in relation to it.  This appears to be the same Dreaming storey associated with a site registered under the Aboriginal Heritage Act 1972 (WA) (ID 846 - Piira Tukurr) referred to in Leonne Velickovic on behalf of the Widji People/Western Australia/Cazaly Resources Limited, NNTT WO04/197, [2005] NNTTA 24 (12 April 2005), Hon C J Sumner (at para [12]). This site is a mythological one, is on the Permanent Register, has ‘Open’ access designation and no restrictions imposed. Informants for the site were Senior Aboriginal persons from the Goldfields area who identified the site and supplied the associated mythology. Any member of the public can obtain access to this information via the Department of Indigenous Affairs (‘DIA’) Register of Aboriginal Sites, which is readily available online via the DIA website which the Tribunal also did for the purpose of its determination in WO04/197.

6. Based on this and other experience I consider that it is not all references to Aboriginal sites or mythology which must be kept confidential.  In the present matter the contentions and evidence are substantially the same as in Internickel where no confidentiality order was made and where the affidavit of Ms Sambo was quoted in full.  For this reason it is not necessary to quote the affidavit again in full.  Nevertheless, I do not think the confidentiality order requested by Ms Sambo is justified.  Most of the affidavit contains general statements about the responsibility of the claimant for the land and sites and Dreaming stories, none of which are contested and which the Tribunal accepts.  Reference is made to the perceived deficiencies in the Aboriginal Heritage Act 1972 (WA) and the desire for an Aboriginal Heritage survey to be carried out. There are also some general statements about the practice of visiting the area for various traditional purposes. The only specific reference to a site is in para 9 of Ms Sambo’s affidavit which is in similar terms to para 9 of the affidavit filed in Internickel except for the reference to a different site.  Para 9 contains information about ‘traditional Aboriginal water sources’ and ‘spiritual sites’ which Ms Sambo says are close to the subject area and have been mapped and their presence recorded.  Whilst there is reference to a site and some detail is given, based on the experience described above I cannot see any compelling reason based on traditional law or custom or customary and cultural concerns for a confidentiality order to be made in relation to it.  The information provided is too generalised to be considered sensitive enough to make confidentiality orders.  I observe that in a number of matters (see for example Internickel (at [45])) the Tribunal has found that sites of particular significance to the native title party exist without full details of them being given (although there must still be sufficient evidence to establish the special nature of the site).

1. With respect to Ms Sambo’s request that the affidavit not be quoted verbatim in the reasons for determination, I have acceded to her request in this case but only on the basis that the evidence is recorded elsewhere in about the same form (in Internickel and other matters). Whether to quote verbatim from affidavits in future matters will be a matter for individual Tribunal Members. However, if no confidentiality direction is justified then there is no impediment to quoting evidence that is on the public record if that is required as a convenient way of making the findings clear. Even if affidavits are not directly quoted, the Tribunal’s findings would normally refer to them as the basis for any findings of fact which the Tribunal is required to make (s 162(2)). Where a confidentiality order is made, although there is no provision in the NTA to prohibit the disclosure of findings of fact the Tribunal would need to fashion its reasons in a way which made the necessary findings clear without undermining the confidentiality direction.

Community or social activities (s 237(a))

1. 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. 

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 46 and conditions to be imposed for prospecting licences detailed in Walley at [24]-[37], to contend that there is not likely to be direct interference with the carrying on of community and social activities by the native title party in relation to the area of land concerned.

3. The native title party’s statement of contentions and evidence is that hunting, gathering and educative visits to the subject area will be curtailed or even prevented as a result of the grant of the proposed licences.   However as noted in Internickel at [34], these statements lack specificity and do not reference contemporary or regular activity.  In addition, the “rocky country” referred to in contentions (para 3) is not readily identifiable from Tribunal Geospatial mapping.   Further, the grant of the proposed licences 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.

4. On the issue of existence of prior mining activity, the fact that objections have been made and withdrawn previously and the lack of evidence on prior detrimental affect on community and social activities in the area, I adopt the findings in Internickel (at [38]), on the basis that the contentions and evidence in that matter were very similar to those provided here.  The finding is that these factors make it less likely that there will be direct interference with the native title party’s community or social activities by the grant of the proposed licences.

5. With respect to the contentions that the spirituality of the land will be destroyed by prospecting activities and that traditional punishment will probably be levelled against those with responsibility for special places if damage occurs, I adopt the findings in Internickel (at [39] & [40]) that these factors do not make interference with the native title party’s community or social activities likely.

6. As in Internickel (at [41]) I also have regard to the fact that the native title party would withdraw the objection if a proper heritage survey was carried out (i.e. according to the Central West Alternative Heritage Agreement).  While this agreement is not acceptable to the grantee party, the Government party’s proposed condition (para [15] above) means that the native title party will be able to insist on a Regional Standard Heritage Agreement (RSHA) being entered into and survey carried out thus ensuring that Aboriginal heritage, including sites of particular significance, is identified.

7. Taking all these factors into account I find that the activities on the proposed licences 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))

1. 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 that there are no sites 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 licences. 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.

2. In relation to s 237(b) of the NTA, 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 licences) and the associated regularity regime would protect areas or sites of particular significance from interference.

3. I adopt the findings of the Tribunal in Walley (at [50]-[51]) in relation to the Government party’s regulatory regime. 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.  The Tribunal will 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.

4. Ms Sambo refers to the area of the proposed licences as being “in close proximity to Kunnanulling”, this area containing traditional water sources and rock holes of “high spiritual significance”.  This evidence is uncontested but Tribunal mapping reveals Kunanalling to be some 77 kilometres north-north-west of the proposed licences and hence of no demonstrated relevance.  A registered site known as Milbari Nidjuru (which according to the Register of Aboriginal Sites is a closed, male access only, mythological and ceremonial site) is shown to be approximately three kilometres east of the subject area.  Although the native title party contentions and evidence do not refer to this site I consider, given its nature, that it is quite possibly a site of particular significance to the native title party or at least some Aboriginal persons in the area.  However, it is sufficiently distant from the subject area for me to infer that disturbance from activities permitted upon grant of the proposed licences is unlikely.  There may be other sites of particular significance to the native title party in the area specified but I have no evidence before me to make that finding. 

5. Although no sites of particular significance which are likely to be interfered with by prospecting on the proposed licence areas have been identified, I consider, that even if present, the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act would make interference with them 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 objection application states that the objection will be withdrawn once the CWAHA is entered into and a heritage survey carried out.  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. 

6. I have previously considered the issue of the relevance of the RSHA and the Government party’s proposed condition in expedited procedure inquiries (Linda Champion (at [29]-[35])).  The situation with respect to the RSHA and the Government party’s proposed condition is similar to that case and I adopt those findings here.  I accept that the grantee party will consult with the native title party about these matters if the tenements are 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]).  I am satisfied that the Government party’s regulatory regime which applies to them means that there is no real risk that any sites of particular significance will be interfered with.

Major disturbance (s 237(c))

1. Section 237(c) of the NTA 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.

2. The native title party’s contentions and evidence on this point are also similar to those provided in Internickel and in Linda Champion.  They contend that the activities permitted by the grant of a prospecting licence would constitute major disturbance to land ‘even from the view point of the general community’.  Both the Linda Champion and Internickel matters involved exploration licences but the activities permitted and regulatory regime are generally the same for the both categories of licence except that prospecting is less intrusive in that the quantity of material which can be removed is 500 tonnes instead of 1000 tonnes.  I adopt the findings in Internickel (at [50]-[52]), which are similar to those in Linda Champion (at [77]-[79]), to find in this matter that there is unlikely to be major disturbance to land.

3. Although now subject of appeal, I note that since the conclusion of contentions and evidence in this matter the Federal Court has endorsed the Tribunal’s approach to the issues raised by s 237(c) (Little v Oriole Resources Pty Ltd [2005] FCA 506 (29 April 2005)).

Determination

1. The determination of the Tribunal is that the grant of prospecting licences P15/4582 and P15/4583 to Maincoast Pty Ltd is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President

30 May 2005