Linda Champion on behalf of the Central West Goldfields People/Western Australia/New Hampton Goldfields Ltd

[2005] NNTTA 41

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion on behalf of the Central West Goldfields People/Western Australia/New Hampton Goldfields Ltd, [2005] NNTTA 41 (7 June 2005)

Application No:         WO04/109

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-

New Hampton Goldfields Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  7 June 2005

Catchwords:              Native title – future act – proposed grant of prospecting licences –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:Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18

Native Title Act 1993 (Cth) ss 148(b), 151(2), 237

Mining Act 1978 (WA) ss 46, 20(5)

Cases: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

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

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, NNTT WO04/389, [2005] NNTTA 35 (30 May 2005), Hon C J Sumner

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

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

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

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 John Clarke, Wanati Pty Ltd

REASONS FOR DETERMINATION

Background

1. On 2 June 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P25/1686 and P25/1688 (‘the proposed licences’) to New Hampton Goldfields 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 Act).

2. On 28 June 2004 Linda Champion, a named applicant (Claim No. WC99/29 registered from 4 October 1999) 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.

3. The proposed licences comprise an area of 67.66 hectares (P25/1686) and 112.35 hectares (P25/1688) and are located 34 kilometres south easterly of Kalgoorlie in the City of Kalgoorlie-Boulder.  Each proposed licence is overlapped 100% by the registered claim of the native title party.  

4. 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.

5. On 16 August 2004 the Widji native title party also lodged an expedited procedure objection application in relation to the proposed licences (WO04/183) which was dismissed at a hearing on 14 April 2005 (reasons published on 15 April 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)).  

Conduct of the inquiry

1. On 13 July 2004, 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, 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 24 January 2005 and native title party compliance on 31 January 2005.  At the preliminary conference convened on 27 July 2004 the grantee party representative, Mr John Clarke, requested that the matter proceed directly to inquiry on the basis that the grantee party had executed a Regional Standard Heritage Agreement (‘RSHA’), which is not accepted by the native title party, and was not prepared to consider any other form of agreement.  However, following advice during an adjourned preliminary conference on 2 September 2004 that the native title party was in the process of developing an alternative agreement based on the RSHA, Mr Clarke agreed to await the outcome of these discussions and proposed an amendment to directions to bring this matter in line with other objections involving the same parties.    Accordingly I approved this amendment, requiring native title party compliance by 28 March 2005.

2. On 22 December 2004 the Tribunal heard that the Central West Goldfields Alternative Heritage Agreement (‘CWAHA’) was not acceptable to the grantee party and an inquiry was inevitable.  A further extension of time was granted to the native title party during a Listing Hearing convened by me on 14 April 2005, requiring affidavit evidence on or before 28 April 2005.

3. The Government party has provided contentions and evidence and the grantee party contentions which are supportive of those of the Government party.  The native title party has submitted a Statement of Contentions and a statement in affidavit form which was received on 17 May 2005 (well after the due date) and signed but not sworn by Ms Sambo. The unsworn affidavit contains references only to proposed licences not the subject of this inquiry. While an argument exists that the native title party has not complied with the directions 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 accepting as evidence Ms Sambo’s unsworn affidavit. As the unsworn affidavit was filed in this matter, I have assumed that despite reference to the wrong tenements it was meant to apply to this objection. I note, however, that the unsworn affidavit appears to add nothing to the statement of contentions previously provided and is substantially the same as affidavits provided in other Central West Goldfields objections. I am satisfied that I can adequately deal with the matter on the papers in accordance with s 151(2) of the Act.

4. The native title party requested that the contents of the unsworn affidavit be kept confidential to the Government and grantee parties.  I adopt the findings in relation to a similar request made in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Maincoast Pty Ltd, NNTT WO04/389, [2005] NNTTA 35 (30 May 2005), Hon C J Sumner at [18]-[34] and find that the order requested is not justified.

Legal principles

1. 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.’

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. Department of Industry and Resources submissions indicate that P25/1686 is 100% over pastoral lease land while P25/1688 comprises 74.2% pastoral lease land, the remaining area of land being freehold Crown grant Hampton Location 31, vested in Australian Rail Track Corporation Ltd.  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.

1. The mapping documentation provided by the Government party shows extensive exploration and interest in the area of the proposed licences and that adjacent to it, and Tengraph Quick Appraisals show one pending exploration licence and two pending and one live prospecting licence overlapping the subject area.  The list of dead tenements affected shows three exploration licences, four mineral claims and one mining lease, variously active between 1970 and 2000, in addition to three applications for exploration and prospecting licences recorded as withdrawn.  It is clear that the entire area has been subject to considerable exploration and mining activity and there is continued interest in the area.

2. In addition to the objection lodged by the Widji native title party in relation to these proposed licences, a further three objections have been lodged between 2000 and 2003 in relation to tenements overlapping or abutting the area subject to this objection.  Of these, one was resolved following withdrawal of the associated tenement application, one was dismissed pursuant to 148(a) (no jurisdiction) following the grant of the tenement by the Government party, and in relation to the third objection Tribunal member Daniel O’Dea determined on 29 January 2004 that the expedited procedure should apply (WO03/385). 

3. 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] and some additional conditions specific to these grants.

4. The grantee party has provided a copy of a statutory declaration to the Tribunal affirming that the agent for the grantee party signed a RSHA and forwarded it to the native title representative body for the Goldfields Region on 25 March 2004 for the native title party to execute.

Native title party contentions and evidence

1. The native title party’s contentions and evidence are similar to those provided in Internickel (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) and other Central West Goldfields objections with the only real difference being the reference to different tenements and specific sites. For this reason I have generally adopted the findings in Internickel for the purpose of this determination. 

2. 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))

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.  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, and s 20(5) in relation to pastoral leasehold areas, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.

2. The native title party’s statement of contentions and affidavit evidence says 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.

3. 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 or 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.  In addition, in the present matter the grants are to be made over pastoral lease land and pastoral activities and the existence of land utilised for a railway over proposed P25/1688 would have already affected the carrying on of the native title party’s community or social activities thus making direct interference from the proposed prospecting activity less likely.

4. 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.

5. 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. 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 regulatory regime would protect areas or sites of particular significance from interference.  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 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 (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.

3. Ms Sambo’s references to “rockholes associated with our Dreaming ancestors”, traditional quarry sites and “at least one known cultural material site” on or in the vicinity of the proposed licences are not supported by sufficient detail or evidence as to the presence of these sites or their significance to the native title party.  In the absence of such detail the grantee party contests the assertion in relation to a cultural material site.  A polygon search on the Department of Indigenous Affairs Aboriginal Sites Register encompassing some 13 kilometres radius from the proposed licences reveals the only registered sites to be a water source (site ID 1279 – Golden Ridge - on the interim register, closed access, no restrictions) and a rock shelter (site ID 16970 – Glass Cave, Snake Hill - on the interim register, open access, no restrictions), both of which are at least 13 kilometres distant from the proposed licences and are unlikely to be disturbed by activities permitted upon grant.  Tribunal mapping shows a rockhole approximately three kilometres south of P25/1686.  While this may be one of the rockholes referred to in contentions and a site of particular significance to the native title party, it is not possible to make a definite finding given the fact that the evidence is of the same general nature as given in other matters, lacks detail and reference to other factors such as particular Dreaming stories which might support such a finding.  In any event given its distance from the subject area there is unlikely to be interference with it.  There may be other sites of particular significance in the area specified but I have no evidence before me to make that finding. 

4. Although the evidence does not show the existence of any sites of particular significance I am satisfied that the regulatory regime in place would in any event 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 prospecting.  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 stated (para 11, Statement of Contentions) that it has previously conducted heritage surveys with both this native title party and other native title claimants in the past where necessary, and is willing to enter into a RSHA or an alternative agreement provided such an agreement embodies the same terms and conditions as those contained in the RSHA for the Goldfields region.  The reasons listed (para 9, Statement of Contentions) for not entering into the CWHA are concerned with, among other things, the level of payments rather than the conduct of surveys and provisions for protection of heritage.  I find that the grantee has demonstrated a history of cooperation with Indigenous people and is mindful of its responsibilities under the Aboriginal Heritage Act to protect Aboriginal Heritage.   

1. I have previously considered the issue of the relevance of the RSHA in expedited procedure inquiries in Linda Champion (at [29]-[32])).  In the present matter the situation with respect to the RSHA 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.  Having perused both the RSHA and the CWAHA, I can see no reason to suggest that Aboriginal heritage will be protected more effectively by one than the other.  Even if there were evidence of any sites I am satisfied that the Government party’s regulatory regime means that there is no real risk that sites will be interfered with.

Major disturbance (s 237(c))

1. Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licences or the prospecting activities undertaken upon grant of the licences 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 to appeal, I note that the Federal Court has recently 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 P25/1686 and P25/1688 to New Hampton Goldfields Ltd is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President

7 June 2005