Linda Champion on behalf of the Central West Goldfields People/Western Australia/Mark Kent
[2005] NNTTA 5
•28 February 2005
NATIONAL NATIVE TITLE TRIBUNAL
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Mark Kent, [2005] NNTTA 5 (28 February 2005)
Application No: WO04/84
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-
Mark Kent (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 28 February 2005
Catchwords: Native title – future act – proposed grant of amalgamation into an 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 26(1)(c)(ii), 29, 109(3), 148(b), 151(2), 237
Mining Act 1978 (WA) ss 24, 63, 66, 67A
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 62
Cases:Cheinmora v Striker (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, [1997] NNTTA 167 (27 October 1997), 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
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398
Walley vWestern Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [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: 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 Mark Kent
REASONS FOR DETERMINATION
Background
On 24 March 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant an amalgamation application (AMSC04/34) into exploration licence E77/1062 (‘the proposed amalgamation’) to Mark Kent (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered that 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 31 May 2005 Linda Champion, a named applicant and representative of the Central West Goldfields People (‘the native title party’) made an expedited procedure objection application to 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 amalgamation overlaps the registered native title claim of the Central West Goldfields People is as follows:
18.28 hectares, located 37 kilometres easterly of Southern Cross in the Shire of Yilgarn, overlap 100%. Exploration licence E77/1062 currently covers 861.53 hectares, all within the Central West Goldfields claim area.
Conduct of the inquiry
In accordance with its normal Procedures under the Right to Negotiate Scheme, on 15 June 2004, 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. The directions also allowed a four month period from the s 29 objection closing date for parties to negotiate or finalise agreement over the grant of the tenement via the expedited procedure process. However, at an adjourned Preliminary Conference held on 13 July 2004 (the first conference at which the grantee party was represented), Mr Kent stated that he was not prepared to enter into an agreement with the native title party and wished to proceed directly to inquiry. Accordingly directions were amended to hasten the dates for compliance.
At a Listing Hearing convened by me on 22 October 2004, the Tribunal heard from Ms Elizabeth Sambo, representative of the native title party, that personal circumstances had precluded the timely provision of contentions and evidence. The Government and grantee parties indicated a preparedness to allow further time in the circumstances, and the grantee also advised a willingness to consider execution of a heritage agreement with the native title party. Accordingly I directed that a s 150 conference be held to facilitate negotiations between the parties. At an adjourned Listing hearing, held on 5 November 2004, Mr Kent advised that he was not prepared to enter into the Central West Goldfields proposed heritage agreement which had been sent to him by the native title party. As a consequence, I reset directions for the Inquiry, requiring native title party compliance on or before 3 December 2004, and subsequently provided a further extension of time for the provision of affidavit evidence on or before 7 January 2005.
The Government party has provided contentions and evidence. The grantee party has not provided any formal contentions or evidence and must be taken to rely on those of the Government party. The native title party has provided a signed Statement of Contentions and an additional written statement from Ms Elizabeth Sambo provided during the preliminary proceedings but no other supporting evidence. Because the Tribunal’s directions require the production of both contentions and evidence by the parties, a possible argument exists that the native title party has not complied with the directions as no evidence as such had been provided and that the objection should be dismissed pursuant to s 148(b) of the Act. Neither of the other parties sought such an order and in the circumstances of this case I am prepared to consider the matter by treating as evidence of Ms Sambo’s written contentions, which have been signed by her and which she is authorised by the claim group to make. It is reasonable to assume that evidence in the form of a sworn affidavit would not have contained any information additional to that set out in the contentions. In adopting this approach I have had regard to s 109(3) of the Act which provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence but whether this approach will be appropriate in other matters will need to be considered on a case by case basis.
Ms Sambo has requested that the objection be heard on country. The Government and grantee parties have submitted that the matter should be dealt with on the papers and I am satisfied that there is nothing peculiar to this matter which dictates a departure from the usual practice of dealing with the matter on the papers. I can adequately deal with the matter in that 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]-[33]). An amalgamation into an existing exploration licence is subject to those same conditions and I adopt those findings for the purposes of this inquiry.
The proposed act
The Government party proposes that the area of land designated AMSC04/34 be amalgamated into current exploration licence E77/1062, held by Mr Kent. At the time of Mr Kent’s application for E77/1062 on 5 January 2001, the area of the proposed amalgamation was subject to three active special prospecting licences (P77/3289 to P77/3291 inclusive) and accordingly was not available for grant. Section 67A of the Mining Act provides for a holder of an exploration licence to apply to amalgamate a secondary tenement which is one defined as a ‘mining tenement (other than a retention licence) situated wholly within the boundaries (whether or not any of those boundaries are common boundaries) of the land the subject of the exploration licence’. Government party documents indicate that P77/3289 to P77/3291 inclusive were forfeited on 11 June 2002, thereby making them available for amalgamation into E77/1062 upon the grant of that licence on 10 February 2004.
The future act (i.e. an act which affects native title) in this case is the variation of a right to mine (s 26(1)(c)(ii)) being the grant of the proposed amalgamation over 18.28 hectares. The grant does not affect native title over the area of the already granted exploration licence (see Gregory and Kelvin Garlett/Western Australia/Sipa Exploration NL, [1997] NNTTA 167 (27 October 1997), Hon C J Sumner).
Government party documentation reveals the area of land subject to the grant of the proposed amalgamation to be entirely Crown Reserve 41936, vested in the National Parks and Nature Conservation Authority for the purpose of the conservation of flora and fauna which covers and extends well beyond E77/1062 and is known as Yellowdine Nature Reserve.
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 amalgamation area.
Department of Industry and Resources (‘DoIR’) Tengraph data records a number of ‘dead’ mineral claims within two kilometres of the proposed amalgamation, and two ‘dead’ mining leases. Dead mining lease M77/1034 was applied for by the grantee party in this matter, the application subsequently being withdrawn on 24 July 2002. However, only one exploration licence overlaps the subject area (E77/536 – surrendered on 30 October 2000) in addition to the three special prospecting licences referenced in para [10] above. It is apparent from the DoIR Tengraph records and other evidence that there has been considerable mining activity in the general vicinity of E77/1062.
Tribunal data shows that objection applications by the Ballardong and Central West Goldfields native title parties were lodged in relation to P77/3289 to P77/3291 inclusive, the Ballardong objection (WO00/18) being withdrawn without agreement being reached and that of the Central West Goldfields People (WO00/57) being withdrawn following agreement. Two Ballardong objections were also lodged in relation to E77/1062, however one of these (WO03/143) was dismissed pursuant to s 148(a) of the Act after I found that the objector was not properly authorised by the native title party to lodge the objection, and the other (WO04/433) was withdrawn after the Native Title Representative Body cited lack of resources to sustain the objection. In these circumstances I can infer from the lodgement of these objections that native title claimant groups in the locality of the subject land do have concerns regarding the granting of tenements without agreements to protect their cultural heritage.
Once granted, the proposed amalgamation area will be subject to the same endorsements and conditions applicable to E77/1062 within which it is incorporated. These endorsement and conditions are applicable as of 10 February 2004 (the date of the grant of that licence) and are set out hereunder:
‘EXPLORATION LICENCE No. 77/1062
ENDORSEMENTS1. The Licensee’s attention is drawn to the provisions of;
·the Aboriginal Heritage Act, 1972;
·the Conservation and Land Management Act, 1984, and the Regulations thereunder;
·the Bush Fires Act, 1954, and the Regulations thereunder; and
·the Wildlife Conservation Act, 1950, as amended, and the Regulations thereunder (excepting the Regulations 46 a,b,c,d,g,i,l and o insofar as non-compliance occurs as an unavoidable incident or reasonable consequence in the performance of the approved exploration program.)
2. The grant of this licence does not include the land the subject of prior Exploration Licence 77/1041. 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 Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
3. The grant of this licence not inferring automatic approval to mine or the subsequent grant of a mining lease in accordance with Section 75 of the Mining Act.
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 programme.
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.
Consent to mine on Conservation of Flora and Fauna Reserve 41936 granted subject to:
5. Prior to accessing the reserve the licensee consulting with and ensuring that, where required by the Regional/District Manager, Department of Conservation and Land Management (CALM), all vehicles, machinery and equipment entering the area are cleaned down to remove soil and plant propagules and adhering to such conditions specified by the Regional/District Manager, CALM, for the prevention of the spread of soil borne diseases.
6. Access to and from and the movement of vehicles and personnel being restricted to ground or seasonal conditions and routes approved by the Regional/District Manager, CALM.
7. The Regional/District Manager, CALM, being supplied with an itinerary and program of the locations of operations on the licence area and informed at least seven days in advance of any changes to that itinerary.
8. Prior to any activity not specified as “environmental disturbance” the licensee preparing a program for each phase of the proposed exploration for approval of the State Mining Engineer in agreement with the Regional/District Manager, CALM.
9. Prior to any environmental disturbance, (as defined by the State Mining Engineer in agreement with the Executive Director, Department of Conservation and Land Management (CALM), the National Parks and Nature Conservation Authority (NPNCA) and the Environmental Protection Authority), the licensee preparing a detailed program for each phase of proposed exploration for approval of the State Mining Engineer in agreement with the Regional/District Manager, CALM and the NPNCA. This process may result in additional conditions being imposed including lodgement of an Unconditional Performance Bond if required. This program to describe the environmental impacts and programs for their management and is to include the following:
·maps and/or aerial photographs showing the proposed locations of all ground activities and disturbances;
·the purpose, specifications and extent of each activity and disturbance;
·descriptions of all vegetation types (in general terms), land forms, and unusual features likely to be disturbed by such proposed disturbances.
The Regional/District Manager, CALM, specifying the level of vegetation description;
·details on proposals that may disturb sensitive terrestrial habitats including any declared rare flora and fauna if applicable;
·techniques, prescriptions, and timetable for rehabilitation of all proposed disturbances;
·undertaking for corrective measures for failed rehabilitation;
·details of water requirements from within the reserve;
·details of refuse disposal; and
·proposals for instruction and supervision of personnel and contractors in respect to environmental conditions.
10. All rehabilitation being to the satisfaction for the State Mining Engineer in agreement with the Regional/District Manager, CALM.
11. At agreed intervals, not greater than 12 monthly, the licensee reporting to the State Mining Engineer and the Regional/District Manager, CALM, on the progress of the operation and the rehabilitation program.
12. Prior to the cessation of the exploration/prospecting activity in the reserve, the licensee notifying the Regional Environmental Officer, Department of Industry and Resources and the Regional/District Manager, CALM, and arranging an inspection as required.
13. The licensee making provision to prevent spillage of fuel and discharge of pollutants generally and for all exploration sites being kept free from any rubbish and being left in a clean and tidy state.
14. The licensee not establishing any camp, base works or area, fuelling depot or similar establishment on the licence area unless the site and access has received prior approval of the State Mining Engineer in agreement with the Regional/District Manager, CALM.
15. Domestic animals, traps, or firearms not being taken onto the reserve.’
The reference to the Aboriginal Heritage Act in Endorsement 1 and Conditions 1-4 inclusive are standard clauses applicable to the grant of all exploration titles. Additional endorsements and conditions relate to the location of the exploration licence within a flora and fauna reserve.
In addition to these endorsements and conditions the Government party draws attention to s 24 of the Mining Act 1978 (in relation to consent and conditions for mining on Reserve land), and s 63 of that Act, which lists conditions to be complied with by the licence holder. As the area of the proposed amalgamation is a Nature Conservation Reserve (Class C), mining (including exploration) requires the written consent (with or without conditions) of the Minister for State Development who must before giving the consent consult and obtain the recommendation of the responsible Minister.The Government party contends that requirements for compliance with these conditions should the proposed amalgamation be granted ensures that 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 1972 (WA), to which the grantee party’s attention is drawn upon grant of the proposed amalgamation, would protect areas or sites of particular significance from interference.
Since January 2004 it has been the Government party’s policy to advertise exploration and prospecting licence applications asserting the expedited procedure only upon evidence of the grantee party’s willingness to enter into a heritage agreement with an affected native title party, whether that agreement is a State approved Regional Standard Heritage Agreement, or an alternative agreement accepted by both the grantee and native title party. I have previously dealt with the history and background of this policy 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’). Oral evidence provided by Mr Clyde Lannan, representing the Government party, at the Listing Hearing of 17 December 2004 indicates that while the policy regarding heritage agreements applied to exploration and prospecting licence applications from January 2004, no clear guidelines were issued as to the treatment of amalgamation and miscellaneous licences, which are also considered by the Government party to be ‘low impact’. As a result, the proposed amalgamation in this case was advertised on 24 March 2004 without the requirement for evidence of consultation with an affected native title party over heritage issues. Government policy has since been clarified and amalgamation and miscellaneous licences are now advertised subject to the new policy, the first affected licence being advertised on 28 July 2004.
Native title party submissions
The native title party has submitted a statement of contentions signed by Ms Elizabeth Sambo. The 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.
It has been the custom for members of the native title party to visit the area in the vicinity of Condarinin Rock and High Rock 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 the “spirituality” of the land which 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 unknown or unrecorded sites. The granting of the proposed amalgamation without consultation with the native title party will contravene ‘Guidelines for Aboriginal Heritage Assessment in Western Australia’, issued by the former Department of Aboriginal Sites, which according to the native title party state, inter alia ‘the Act [Aboriginal Heritage Act] does not set out procedures which will allow land users to reasonably ascertain whether there are Aboriginal sites on a given piece of land (but) Government takes the view that it should be the responsibility of the land user to ascertain whether there are Aboriginal sites on that land’.
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 a heritage agreement with the native title party.
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”.
The native title party has not submitted any affidavit evidence but in addition to its contentions provided a written statement by email, reiterating the request that the inquiry be conducted on country. This statement, which Ms Sambo asserts provides confirmation of “our contact with the area in question” is set out below:
‘Mr Kent I believed have not spoken to myself and my family at face value.
I do not believe he has spoken to people from the surrounding districts also being the settlers to Southern Cross these families were the pioneers of the Yilgarn.
For Mr Kent to say that our family did not even hunt our gather within the area is so very wrong.
The Lake area you cross right at the old Yellowdine road house go across that lake area on the right off the Great Eastern Highway and across the lake you will find some old fence lines, those fence lines was put up by my father for an old farmer by the name of George Ivey who was running sheep there and my father was the shepard for the sheep.
My father walked the sheep where ever there was food for the sheep even if it was has far East nearly to Boondie for water. Mr Ivey have two children alive one is in his late 60s and the daughter is nearly about the same age they are quite willing to come to court for our family to verify this, Mr Ivey's son Ross now lives in Boyup Brook but stays in contact with myself and my brother Dennis.
I believe that Mr Kent should get Mrs Forrester book she published called Hardy Country For Hardy People and then talk to Mrs Forrester she is now in a old people's village in Southern Cross.
Mrs Forrester is also the Historian for the area please take the time to speak to these people the others who could tell you about our family speak to Orrie Della Bosca, Harvey Carlsen, Billy Coward these people their families were Pioneers to this country.
Obviously you do not believe me then I am sure you would believe other white people tell you our contact to the land is and always was continues, all these people are business people in Southern Cross.
Take time to visit the grave yard how many other Aboriginal people are buried in there that are not connected to the Sambo family non - I am afraid and you keep stating you have a Standard Heritage Agreement with the Balladong people who have no affiliation to the country in question ask the pioneers of the area. [NOTE: Ms Sambo is mistaken in this respect. Mr Kent does not have an agreement with the Ballardong People and has not stated this.]
So if you want to go into an inquiry I will also contest.
I am quite willing to talk to Mr Kent across the table if he wishes to do so and maybe we could come up with some solution if not then this is all I could offer you now it is up to you.’
The book to which Ms Sambo refers is properly titled “Yilgarn: Good Country for Hardy People” (‘Yilgarn’) and which, according to the editor, contains significance historical contributions from a Ms Erna Lindsay Forrester, B.E.M. Topics such as the geography, geology, history, flora and fauna of the Yilgarn shire are covered, and there is a discrete chapter entitled “Aborigines: The Changing Scene” which references Indigenous use and occupation of the district, including mention of a William Sambo, who is Elizabeth Sambo’s father. The book also refers to “Aboriginal soaks in the Yilgarn”, amongst which some of the most notable are said to be Duladgin and Weowanie, also referenced in native title party contentions. I have considered relevant parts of this book but find it largely historical and of limited use in this inquiry. It refers to past Aboriginal activity in the general area of Yilgarn including important sites and also the considerable history of mining activity.
Ms Sambo is one of eight persons who comprise the applicant for native title and the registered native title claimant for the native title claim of the Central West Goldfields People, and currently represents the group in future act matters. Her evidence is uncontested and her standing as a senior women of the Central West people, with attendant responsibilities towards the guardianship of the land with which the native title party is associated, has been previously established and accepted by me.
Community or social activities (s 237(a))
For the objection to be upheld the evidence must show that 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 asserts a long history of connection with the land, and Ms Sambo’s contentions demonstrate knowledge of the area of land in the vicinity of the proposed amalgamation. However, evidence regarding the ongoing and continued use of the land for social and community activities lacks specificity, with assertions as to use confined to a general statement that ‘it has been the custom of the objectors to visit areas in the vicinity of Condarinin Rock and High Rock and surrounds to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and material for the manufacture of traditional tools and implements’. Condarinin Rock is identified by Tribunal mapping as being located approximately 1.5 kilometres north-west of the proposed amalgamation, and High Rock is approximately three kilometres to the south east. On the subject of instructing young members of the claim group in traditional ways, the contentions provide more information, asserting that elders of the claim group have been accustomed to bring young claim group members regularly to the area. Linda Champion was brought to the Condarinin/High Rock area for education by her father, and in turn she, and other family members, have taken her own children, Elizabeth Sambo and Dennis Sambo, there. Linda Champion and Dennis Sambo, in common with Elizabeth Sambo, are named applicants for the Central West Goldfields native title claimant group and as such I accept that the area in the immediate vicinity of the proposed amalgamation has been used by members of the native title party. However, no specific evidence has been provided as to the frequency of these hunting, gathering and educational visits, or the number of claim group members involved in the activities. The tenor of the evidence is a reference to the past and less so to the current community and social activities involving younger members of the claimant group. The Tribunal in this inquiry is concerned with the evidence of current native title party community or social activity which might be affected by exploration. Reference to past activity (such as provided in Ms Sambo’s email statement quoted above) can provide some context for this examination but it is important for there to be evidence of the current nature and frequency of such activities. Without this it is not possible for the Tribunal to make a predictive assessment of whether the activities are likely to be interfered with. I also note that the area of the proposed amalgamation is small (18.28 hectares) relative to the area of land said to be used by the native title party in its carrying on of social and community activities thus making it less likely that the grant will contribute to interference with community or social activities in a substantial way.
The Tribunal has held that the existence of prior mining activities which have in the past affected, 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 (Walley at [12]). As noted previously there is some evidence of past, present and future mining activities in the general area of land the subject of the proposed amalgamation which will have already adversely affected activities which were traditionally carried out by the claimant group. The limited evidence of the native title party’s current community and social activities tends to support a finding that prior mining has adversely impacted on them.
I also take into account the provisions of s 24 of the Mining Act, relating to requirement for Ministerial consent to mining on a Reserve for the conservation of flora and fauna including the Special Conditions imposed; s 63 of that Act which lists conditions applicable to the grant of the proposed amalgamation, including the making safe of “holes, pits, trenches and other disturbances to the surface of the land” and requirement for grantees to “take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise”; and the standard conditions imposed on the grant of all prospecting and exploration licences in Western Australia, including requirements for rehabilitation.
I further note that the grant of the proposed amalgamation does not confer exclusive right of access to the grantee party. There will be no restriction on the native title party’s access to the area of the proposed amalgamation area or EL77/1062 generally except in the relatively limited area in which exploration will take place at any particular time. These factors all ameliorate the potential impact of exploration on community or social activities engaged in by the native title party. Given these factors and the nature of exploration activity it can not be said that large areas of traditional land will be closed off to the objectors.
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. However, in order for an objection to be successful there must be evidence of actual community or social activities arising out of this responsibility which will be directly interfered with in a substantial way by the exploration activity. Again the Tribunal is faced with generalised statements about obligations to look after the country which are insufficiently specific to identify the community or social activities which may be interfered with. The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [15]-[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 WO02/281, [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.’
My conclusion is that while there is some evidence of community or social activities by the native title party within and in the vicinity of the proposed amalgamation it is largely historical and insufficient to support a finding that there is likely to be a substantial impact on them from the grant of this amalgamation. Taking into account the non-exclusive nature of the grant, the small area of land affected, the prior adverse effect on social or community activities by previous exploration and mining activities in the area which I can infer from the evidence and the regulatory regime in place, my finding is that exploration is unlikely directly to interfere with those activities 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 that no sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean that there may not be sites or areas of particular significance to the native title party over the area of the proposed amalgamation. 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 native title party contends that “the chain of salt lakes running southwards from Lake Deborah and Lake Seabrook are an old Central West Goldfields Peoples’ track” and that “most of these water sources are associated with the activities of Dreaming ancestors”. I accept this contention as evidence and infer that the chain of lakes to which Ms Sambo refers is that same chain of lakes which progress in a southerly direction from the site known as Weowanie Rock, traversing the vicinity of the proposed amalgamation and onwards past Palmers Find Mine. This finding is supported by descriptions of the system of salt lakes as discussed in Yilgarn (p 37). I also accept that the native title party attaches “high spiritual significance” to the sites of Weowanie Rock, Duladgin Rock, Biljahnie Rock, Condarinin Rock and High Rock and that they are probably sites of particular significance to the native title party (although Duladgin Rock alone is currently listed on the Register of Aboriginal sites). Of those five sites, none are located within the proposed amalgamation (Duladgin and Weowanie Rocks are some 15 kilometres away) and only High Rock and Condarinin Rock can be considered close. However, Ms Sambo states that “there are other sacred and ceremonial sites in the vicinity of these named places, and therefore within or in the vicinity of E77/1062, whose locations and stories are known only to relevant Aboriginal elders”. While this contention is uncontested by the Government and grantee parties and I accept it as a matter of fact, the evidence is very generalised and there is no direct evidence that these sites are actually located on the amalgamation area as opposed to the larger exploration licence area.
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 the area or sites. The protective provisions are outlined in Walley (at [50]-[51]) and whether they provide adequate protection depends on the facts of particular matters and the nature and incidence of areas or sites which exist (see Walley at [51]; Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]). The native title party’s objection application makes clear that the protection of cultural heritage can be dealt with by the execution of a heritage agreement defining protocols for the conduct of heritage surveys which would have led to the withdrawal of the objection. The grantee party has considered and rejected execution of the native title party’s agreement in this case. At the time of s 29 notification of the proposed amalgamation, the Government party’s policy was to exempt amalgamation applications from its requirement that the grantee party demonstrate a willingness to enter into a heritage protection agreement. Were the proposed amalgamation to be advertised today, the grantee would be bound to demonstrate a commitment to cultural heritage protection before the expedited procedure could be asserted. However, the existence of this policy only determines whether the Government party will give notice that the expedited procedure is attracted. In a case such as this the Tribunal must still look at the nature and extent of any special sites and whether the regulatory regime is sufficient to make interference with them unlikely. While the attitude of the grantee party to site protection can be taken into account (see Linda Champion at [30]) the absence of evidence from the grantee party on its intentions relating to site protection does not inevitably mean that it is likely that sites of particular significance will be interfered with. Each case must be considered on its merit including the evidence of such sites. Unless there is evidence to suggest the contrary the Tribunal is entitled to assume that the grantee party will obey the law and not be in breach of the Aboriginal Heritage Act 1972 (WA).
The grantee party has chosen not to provide any contentions or evidence as to what it intends to do by way of site protection in lieu of a heritage protection agreement. However, there is no direct evidence of the existence of sites of particular significance in the relatively small area of land the subject of the proposed amalgamation. Further, the surrounding exploration licence was granted to Mr Kent on 10 February 2004 and he has held three other prospecting licences in the area between 2001 and 2005 (P77/3281, P77/3284 and P77/3285) There is no evidence as to disturbance or damage to sites caused by Mr Kent during that period, or indeed prior to it. I find that the presumption of regularity applies in this instance and that the Aboriginal Heritage Act and procedures associated with its compliance as previously outlined, will mean that there is not likely to be interference with sites of particular significance to the native title party. The grantee is aware of its obligations under the Aboriginal Heritage Act, and has now been made aware that there are special areas or sites in the vicinity of the proposed amalgamation and possibly on the amalgamation area itself. He will need to take care to ensure that he does not breach the provisions of the Aboriginal Heritage Act.
Major disturbance (s 237(c))
Section 237(c) of the act requires a predictive assessment of whether the grant of the proposed amalgamation or the exploration activities undertaken upon grant of the amalgamation are likely to involve major disturbance to land, 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 Tribunal’s position on this issue has recently been summarised in Linda Champion (at [75]-[79]). As in that matter the native title party contends that a permissible quantity of blasting or bulldozing, such as “ten metres by ten metres”, where that blasting were to occur on a granite outcrop associated with a site or area of particular significance, would constitute major disturbance as defined by the Aboriginal community as a whole. While I accept that this may be so and that it would probably be regarded by the general community as major disturbance to land in the context that it would be a special site which was being disturbed, in relation to this matter the native title party provides no specifics regarding sites where this might occur. If a special site were to be involved then the protective regime considered above would operate to make the disturbance unlikely.
As to activities permissible upon grant of the amalgamation, the Tribunal has generally found that those exploration activities, while undoubtedly ground disturbing, do not constitute major disturbance (see Linda Champion at [77]). However, there are exceptions. In this case the whole of the amalgamation area is over a Class C Nature Reserve which potentially could be the type of land where exploration might be considered to cause major disturbance. After consideration of the following matters I find that there are no factors peculiar to this area which leads to a conclusion that exploration will result in major disturbance to the land.
There are no Aboriginal communities in the vicinity.
There is a considerable history of mining and exploration in the vicinity.
The grantee party has not led evidence as to its intentions regarding rehabilitation but I am entitled to assume that he will adhere to the various conditions attached to the grant of the proposed amalgamation.
I also give weight to the extensive conditions and permissions required in relation to Conservation of Flora and Fauna Reserve 41936, which limit access and require lodgement of detailed work programmes, in addition to ongoing reporting, rehabilitation and provision for inspections.
Although the Nature Reserve is not of the highest category there is a strict regulatory regime in place.
I find the regulatory regime in this case sufficient to ensure that major disturbance is not likely to result from the grant of the proposed amalgamation.
Determination
The determination of the Tribunal is that the grant of amalgamation application AMSC04/34 into exploration licence E77/1062 to Mark Kent is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
28 February 2005
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