Linda Champion on behalf of the Central West Goldfields People/Western Australia/Redstone Metal Pty Ltd; Newvale Holdings Pty Ltd
[2005] NNTTA 43
•17 June 2005
NATIONAL NATIVE TITLE TRIBUNAL
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Redstone Metal Pty Ltd; Newvale Holdings Pty Ltd, [2005] NNTTA 43 (17 June 2005)
Application Nos: WO04/150 & WO04/156
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Linda Champion on behalf of the Central West Goldfields People – WC99/29
(native title party)
-and-
The State of Western Australia (Government party)
-and-
Redstone Metals Pty Ltd (grantee party) (WO04/150)
Newvale Holdings Pty Ltd (grantee party) (WO04/156)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 17 June 2005
Catchwords: Native title – future act – proposed grant of exploration licences –expedited procedure objection applications – 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 29, 151(2), 237
Mining Act 1978 (WA) s 63
Cases:Cheinmora v StrikerResources NL (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
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 Ken Watson
REASONS FOR DETERMINATION
Background
On 14 July 2004 and 28 July 2004 respectively the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant the following exploration licences (‘the proposed licences’) under the Mining Act 1978 (WA) and included in the notices 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):
E15/827 to Redstone Metals Pty Ltd (‘grantee party’) comprising an area of 26.28 square kilometres, 111 kilometres south easterly of Southern Cross in the Shire of Coolgardie which is overlapped 100% by the registered claim of the native title party; and
E15/830 to Newvale Holdings Pty Ltd (‘grantee party’) comprising an area of 125.46 square kilometres, 115 kilometres south easterly of Southern Cross in the Shires of Coolgardie and Dundas which is overlapped 100% by the registered claim of the native title party
On 29 July 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 expedited procedure objection applications with the Tribunal (WO04/150 for E15/827 and WO04/156 for E15/830), relying on all three limbs of s 237 of the Act.
Conduct of the inquiry
In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties in each matter 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. Prior to the preliminary conference convened on 31 August 2004, the grantee parties’ representative, Mr Ken Watson, advised that the alternative heritage agreement of the Central West Goldfields native title party (‘CWAHA’) was not acceptable and that the Regional Standard Heritage Agreement (‘RSHA’) which he had executed was the only agreement acceptable to the grantee parties and requested that the matters proceed to inquiry. This position was reiterated at the preliminary conference, however in the light of forthcoming discussions about the use of a modified RSHA Mr Watson indicated that he was prepared to await the outcome of those discussions. On 9 November 2004 Mr Watson confirmed that the form of agreement proposed by the native title party was not acceptable and directions were amended to align the times for compliance in both objections.
Contentions and evidence from the Government party and the native title party have now been submitted. I infer that the grantee parties will rely on contentions submitted by the Government party. I am satisfied that I can adequately deal with the matters on the papers in accordance with s 151(2) of the Act.
As the proposed licences are adjacent to each other, the grantee parties are represented by the same person and the contentions and affidavits from the native title party in each matter are practically identical I have considered it appropriate for the inquiry to cover both objections.
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 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
The area of the proposed licences is 100% 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.
With respect to proposed E15/827 (WO04/150) the mapping documentation provided by the Government party shows some exploration and interest in the area and that adjacent to it. Tengraph Quick Appraisal shows four ‘dead’ exploration licences partially overlapping the subject area, although two were withdrawn prior to grant and the remaining two were surrendered in 1998 after only nine and eighteen months of the date granted. No live or pending licences overlap the subject area.
With respect to proposed E15/830 (WO04/156) the mapping documentation provided by the Government party shows exploration and mining interest in the area of the proposed licence and that adjacent to it. The Tengraph Quick Appraisal shows one pending and two live exploration licences and two pending mining leases. In addition, the list of dead tenements affected shows four mineral titles active between 1997 and 2003 and of those titles encroachment on the current tenement application was between 2.0% and 95.4%. Of the list of nine dead tenements five had a reason of ‘death’ as ‘withdrawn’ which occurred prior to grant and exploration. The area has been subject to intermittent historical exploration and mining activity and there is continued interest in the area.
The grant of the proposed licences will be subject to the standard endorsement and conditions applicable to all exploration licences in Western Australia as previously set out in 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’) at [24] and some additional conditions and endorsements specific to these grants including one relating to, in both cases, to different Geodetic Survey stations where mining operations (including exploration) is restricted in the immediate vicinity.
The Government party will also impose the following condition on the grant of each proposed licence:
‘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 P O Box 661, Victoria Park WA 6979 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.’
Evidence provided by the native title party and confidentiality issues
In support of its contentions the native title party has submitted affidavits of Elizabeth Sambo, sworn in Kalgoorlie on 19 April 2005. Ms Sambo requested that the contents of these affidavits remain confidential between the parties associated with the inquiry and not be published in a Tribunal determination or in any other forum. 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 sought is not justified.
The native title party’s contentions and Ms Sambo’s affidavits are very similar to those submitted in relation to a number of Central West Goldfields objections (‘Internickel’) at [31] is such an example). The only real difference is reference to different tenements and specific sites. For this reason I have generally adopted the findings in Internickel for the purpose of this determination.
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.
Community or social activities (s 237(a))
For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed for exploration licences, 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.
The native title party’s contentions and Ms Sambo’s affidavit evidence in respect to this issue are identical in each case and similar to those lodged in Internickel. The native title party contends that hunting, gathering and educative visits to both subject areas 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.
Of particular concern to the native title party is the “rocky country” which is a place of high significance because ‘it contains rock holes associated with our Dreaming ancestors and the traditional quarry sites for the supply of raw materials for the manufacture of stone tools and artefacts’. The objectors say they are unable to be precise about the location of the “rocky country” for the reason that the group does not have a skilled map reader and the quality of the maps provided by the Government party do not enable accurate identification.
It appears from Tribunal Geospatial mapping that this country could be that located at least 15 kilometres north east and east of the area of proposed licences and stretches in a north-south direction. However, it is difficult to know if this area shown on the Tribunal map is the rocky country specifically identified by Ms Sambo as all of her affidavits filed in relation to Central West objections are virtually the same in this respect. Even if it is actually the area referred to, exploration activities are unlikely to interfere with any community or social activities in or around the ‘rocky country” because of its distance from the subject area.
Further, the grant of the proposed licences does not confer exclusive rights of access on the grantee party. Any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wide area over which any hunting or gathering may occur. Any restriction would also be temporary.
The evidence in these matters (paras [9] and [10] above) does not show the same level of prior mining activities as in some other Central West objections and there is no underlying pastoral lease. The situation is not dissimilar to that in Internickel and I adopt the findings in that matter at [38]. The evidence of the existence of contemporary community or social activities is so limited as to make any direct interference with them unlikely.
With respect to the contentions that the spirituality of the land will be destroyed by exploration 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.
A further difficulty with Ms Sambo’s contentions, which also arose 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 [66] and Internickel at [41], is that the native title party asserts that a proper heritage survey (in her view one carried out according to a CWAHA) will ensure that her responsibilities to look after the country are met. I am satisfied that both the RSHA and the CWAHA involve the conduct of surveys that will identify Aboriginal heritage including sites of particular significance to the native title party. The Government party’s proposed condition also means that the native title party will be able to insist on a RSHA.
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.
With respect to the native title party’s contention about the adequacy of maps I note for the record that it is now common practice for the Tribunal in expedited procedure objection matters to produce and provide to all parties a clear topographical map showing the key features of the area, including sites, referred to in the evidence. While under current practice Tribunal maps are not prepared and made available until after a native title party’s contentions and evidence have been lodged and are prepared principally to assist the Tribunal to understand the evidence, they could also assist the parties to provide supplementary contentions or evidence. However, in light of the native title party’s concerns I have requested Tribunal officers to confer with the Government party to ascertain if clearer topographical maps can be provided as part of the Government party’s initial contentions and evidence. The Tribunal’s standard directions require the production of a topographical map by the Government party before the native title party is required to comply.
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 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 protects all Aboriginal sites, whether on the Register or not.
In relation to s 237(b) of the Act, the Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act, to which the grantee party’s attention is drawn upon grant of the proposed licences, 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 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 continue to have regard to whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Ms Sambo refers to the area of the proposed licences as being in close proximity to traditional water sources “that were created in the Dreaming” and are of “high spiritual significance”. A site known as “Rockhole” is said to be close to the area of E15/827. With respect to E15/827 (WO04/150), Tribunal mapping reveals the closest water sources and rockholes to be located in the rocky country referred to previously; that is, some 15 kilometres or more from the E15/827 licence area. There do appear to be a number of lakes to the west of the area of E15/827 and E15/830, such as Lake Percy which is clearly labelled on the map produced by the Tribunal, but Ms Sambo’s evidence is so lacking in specificity that I am unable to determine if these lakes comprise traditional water sources or unrecorded sites of significance. A search of the Department of Indigenous Affairs Aboriginal Sites Register does reveal a number of recorded sites approximately 40 kilometres to the south east of the proposed licences, including Lake Johnston West (site ID 15411) and Lake Johnson (site ID 2916) which are described as artefact scatters in the Register of Aboriginal Sites, but they are so far from the subject area that I find disturbance from activities permitted upon grant of the proposed licence most unlikely.
Although the evidence does not show the existence of any sites of particular significant in the immediate vicinity of the area of the proposed licences I am satisfied that the regulatory regime in place and the presumption of regularity would in any event ensure that interference with any such sites is unlikely. In coming to this conclusion I have taken into account, in addition to the regulatory regime referred to above, that the grantee parties have executed a RSHA indicating that they are mindful of their responsibilities under the Aboriginal Heritage Act, and that the Government party’s proposed condition (para [12] above) will be available to the native title party if necessary (see Linda Champion at [29]-[32]).
Major disturbance (s 237(c))
Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely to involve major disturbance, the meaning of which was considered in Dann v Western Australia (1997) 74 FCR 391. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.
Native title party contentions with respect to major disturbance are similar to those in Internickel and Linda Champion. I adopt the findings in Internickel (at [50]-[52]) which are similar to those in Linda Champion (at[77]-[79]) to find that there is unlikely to be major disturbance to land.
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
The determination of the Tribunal is that the grant of:
·exploration licence E15/827 to Redstone Metals Pty Ltd; and
·exploration licence E15/830 to Newvale Holdings Pty Ltd
are acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
17 June 2005
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