Linda Champion on behalf of the Central West Goldfields People/Western Australia/South Kal Mines Pty Ltd

[2005] NNTTA 42

NATIONAL NATIVE TITLE TRIBUNAL

Linda Champion on behalf of the Central West Goldfields People/Western Australia/South Kal Mines Pty Ltd, [2005] NNTTA 42 (7 June 2005)

Application No:        WO04/159

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-

South Kal Mines Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

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

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

Native Title Act 1993 (Cth) ss 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 28 July 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licence P15/4663 (‘the proposed licence’) to South Kal Mines Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, is future act which can be done without the normal negotiations required by s 31 of the Act).

2. 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 an expedited procedure objection application with the Tribunal, relying on all three limbs of s 237 of the Act.

3. The proposed licence comprises an area of 13.81 hectares, 16 kilometres north westerly of Kambalda in the Shire of Coolgardie and 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 licence 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 licence (WO04/206) 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 9 August 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 21 March 2005 and native title party compliance on 28 March 2005. At the preliminary conference convened on 31 August 2004 the grantee party representative, Mr John Clarke, advised that although the grantee party had executed a Regional Standard Heritage Agreement (‘RSHA’), and in doing so considered that it had fulfilled its obligations regarding heritage protection in accordance with Government party policy, it was prepared to await the native title party’s proposed development of an alternative agreement based on the RSHA. However, on 22 December 2004 the Tribunal heard that the grantee now wished to proceed to an inquiry on the basis that the Central West Goldfields Alternative Heritage Agreement (‘CWAHA’) was not acceptable. At a Listing Hearing convened by me on 14 April 2005 I approved an extension of time for the native title party, requiring affidavit evidence on or before 28 April 2005 and advised that I would proceed to determine the matter on the papers after that date.

2. 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.

3. 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 the proposed licence is 100% over pastoral lease land.  There are neither Aboriginal communities nor sites registered with the Department of Indigenous Affairs pursuant to the Aboriginal Heritage Act 1972 (WA) on or in the immediate vicinity of the proposed licences.

2. The mapping documentation provided by the Government party shows some exploration and interest in the area of the proposed licence and that adjacent to it, and the Tengraph Quick Appraisal shows one pending mining lease entirely overlapping the subject area.  The list of dead tenements affected shows one exploration licence, one mineral claim and two mining leases applied for in the subject area, although only two of those dead tenements were ultimately granted.  However, it is clear that the entire area has been subject to exploration and mining activity and that there is continued interest in the area.  No objections have been lodged by a native title party in relation to these overlapping tenements although, as previously documented, the Widji native title party has objected to the assertion of the expedited procedure in relation to P15/4663.

3. The grant of the proposed licence 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]. Additional conditions pertain to the portion of the subject area overlapping pastoral lease (leaseholder to be advised of airborne surveys or ground disturbing activities).

4. A copy of a statutory declaration has been provided 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 11 June 2004 for the native title party to execute.

5. The Government party will also impose the following condition on the grant of the 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, c/o Mr J Clarke, Wanati Pty Ltd, P O Box 30, Burswood WA 6100, 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.’

Native title party submissions

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 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 licence.   However as noted in Internickel at [34] these statements lack specificity and do not reference contemporary or regular activity.  Tribunal Geospatial mapping does show a rocky outcrop some 4.5 kilometres west of the proposed licence which I infer could be part of the “rocky country” referred to in contentions (para 3) but apart from this the places said by Ms Sambo to be in or around the subject area are not readily identifiable.   Further, the grant of the proposed licence does not confer exclusive rights of access to the grantee party.  Any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wide area over which any hunting or gathering may occur.  Any restriction would also be temporary.

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 and social activities in the area, I adopt the findings in Internickel (at [38]).  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 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.

1. 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.

2. Taking all these factors into account I find that the activities on the proposed licence 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 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 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” as well as other “sacred and ceremonial sites … known only to relevant Aboriginal elders” on or in the vicinity of the proposed licence 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 of the subject area on the Department of Indigenous Affairs Aboriginal Sites Register reveals six registered sites between seven and ten kilometres north and north west of the proposed licence, of which two are recorded as quarries with artefacts and scatters (site ID 18370 and 18372, open access, no restrictions), and another two as granite outcrops (site ID 18595 and 18596, open access, no restrictions).  Even if it was possible to say that these sites were the same as those referred to in general terms in the native title party’s statement of contentions, and that they may be of particular significance to the native title party, their distance from the proposed licence means that they are unlikely to be disturbed by activities permitted upon grant.  There may be other unmapped and unrecorded 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 and the Government party’s proposed condition in expedited procedure inquiries in Linda Champion (at [29]-[32]).  The situation with respect to the RSHA and the Government party’s proposed condition is similar to that case and I adopt those findings here.  I accept that the grantee party will consult with the native title party about these matters if the tenements are granted.  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.  If, after consultation, agreement cannot be reached the native title party under the Government party’s proposed condition can insist on a survey pursuant to the RSHA (Linda Champion at [33], [35]).  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 licence or the prospecting activities undertaken upon grant of the licence are likely to involve major disturbance, the meaning of which was considered in Dann v Western Australia (1997) 74 FCR 391. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.

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

3. Although now subject 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 licence P15/4663 to South Kal Mines Pty Ltd is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President

7 June 2005