Maggie John and Ors on bahalf of the Malarngowem People/Western Australia/Geological Resources Pty Ltd; and Jack Britten and Ors on behalf of the Purnululu People/Western Australia/Geological Resources Pty Ltd
[2013] NNTTA 151
•23 October 2013
NATIONAL NATIVE TITLE TRIBUNAL
Maggie John and Ors on bahalf of the Malarngowem People/Western Australia/Geological Resources Pty Ltd; and Jack Britten and Ors on behalf of the Purnululu People/Western Australia/Geological Resources Pty Ltd [2013] NNTTA 151 (23 October 2013)
Application No: WO2011/0798; WO2011/0839
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Maggie John and Others on behalf of the Malarngowem People (WC1999/0044) (Malarngowem native title party)
- and –
Jack Britten and Others on behalf of the Purnululu People (WC1994/0011) (Purnululu native title party)
- and -
The State of Western Australia (Government party)
- and -
Geological Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven
Place: Perth
Date: 23 October 2013
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection application – withdrawal of two licences – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters - expedited procedure not attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 155, 237
Mining Act 1978 (WA) ss 66
Aboriginal Heritage Act 1972 (WA) ss 17, 18
Cases:Banjo Wurrunmurra & Ors on behalf of Bunuba/Western Australia/Monte Ling, Kevin Peter Sibraa [2007] NNTTA 21, (‘Ling/ Sibraa’)
Butcher Cherel & Ors on behalf of Gooniyandi Combined #2/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Butcher Cherel & Ors on behalf of Gooniyandi Combined #2/Western Australia/Richmond [2010] NNTTA 167, (‘Richmond’)
Cheinmora & Ors v Heron Resources Ltd & Anor (2005) 196 FLR 250, (‘Cheinmora’)
Daisy Lungunan & Ors on behalf of Nyikina and Mangala/ Western Australia/Geotech International Pty Ltd [2012] NNTTA 24, (‘Geotech International’)
Daisy Lungunan & Ors on behalf of Nyikina Mangala/Western Australia/Kimberley Quarry [2011] NNTTA 33, (‘Kimberley Quarry’)
Dorothy Tucker on behalf of the Narnoobinya Family Group/Western Australia/Image Resources NL [2010] NNTTA 99, (‘Image Resources’)
Harvey Murray & Ors on behalf of Yilka / Western Australia / Drew Griffin Money [2011] NNTTA 91, ('Money')
Les Tullock & Ors on behalf of Tarlpa /Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, ('Tarlpa')
Little & Ors v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maggie John & Ors on behalf of Malarngowem/Western Australia/Geological Resources Pty Ltd [2013] NNTTA 105, (‘Geological Resources’)
Maitland Parker & Ors on behalf of Martu Idja Banyjima/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Iron Duyfken’)
Maitland Parker & Ors on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65, ('Maitland Parker')
Monadee v Western Australia (2003) 174 FLR 381, (‘Monadee’)
Paddy Neowarra & Ors on behalf of Wanjina/Wunggurr-Wilinggin/ Wilfred Goonack on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd [2007] NNTTA 11, (‘Swancove’)
Parker v Western Australia [2007] FCA 1027, (‘Parker 1’)
Parker v Western Australia and Ors (2008) 167 FCR 340, (‘Parker 2’)
Rosas v Northern Territory & Anor (2002) 169 FLR 330, (‘Rosas’)
Silver v Northern Territory (2002) 169 FLR 1, ('Silver')
Smith v Western Australia (2001) 108 FCR 442, ('Smith')
Walley v Western Australia (2002) 169 FLR 437, ('Walley')
Ward v Western Australia (1996) 69 FCR 208, ('Ward')
Western Australia/Glen Derrick Councillor and Ors on behalf of the Naagaju Peoples; Leedham Papertalk and Ors on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41 (‘Bayform Holdings’)
Wilma Freddie & Ors on behalf of Wiluna/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Asia Investment’)
Representative of the Ms Jackie Cole, Kimberley Land Council
native title party: Ms Barbra Friedewald, Kimberley Land Council
Representatives of the Mr Cheyne Beetham, State Solicitor’s Office
Ms Rosanna Hill, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Peter Del Fante, Corporate Tenement Services
grantee party:
REASONS FOR DETERMINATION
On 23 March 2011, the Government party, through the Department of Mines and Petroleum ('DMP'), gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E80/4535, E80/4536 and E80/4538 to Geological Resources Pty Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grants attract the expedited procedure (that is, that the grant of the proposed licences are acts that can be done without the normal negotiations required by s 31 of the Act).
Registered native title parties with claim areas overlapping E80/4535, E80/4536 and E80/4538 had until four months from the notification day, that is, 25 July 2011, to lodge objection applications against the expedited procedure statement for the proposed licences.
On 25 July 2011, Maggie John and Others on behalf of the Malarngowem native title party (WC1999/044 – registered from 4 February 2000) (‘the Malarngowem native title party’) lodged an expedited procedure objection application with the Tribunal in respect of E80/4536 and E80/4538 (designated by the Tribunal as WO2011/0839 and WO2011/0840). On the same day, Jack Britten and Others on behalf of the Purnululu native title party (WC1994/011 – registered from 27 March 1995) (‘the Purnululu native title party’) lodged an objection to E80/4535, E80/4536 and E80/4538 (which were designated by the Tribunal as WO2011/0797-0799).
On 3 April 2013, the Purnululu native title party withdrew its objection in relation to E80/4535 and E80/4538, and the Malarngowem native title party withdrew its objection in relation to E80/4538. The Purnululu and Malarngowem native title parties therefore maintained their respective objections against E80/4536 only (WO2011/0798 and WO11/0839 respectively). They will be referred to as the native title parties throughout this determination.
The s 29 notice describes E80/4536 (‘the proposed licence’) as comprising 264.98 square kilometres, located 142 kilometres south of Kununurra in the Shire of Halls Creek and Shire of Wyndham East Kimberley. The proposed licence is 0.45 per cent within the Purnululu native title party’s claimant area and 95.92 per cent within the Malarnogwem native title claim.
Directions were varied with the consent of parties on numerous occasions throughout 2012 while parties continued to negotiate towards an agreement. In October 2012, new directions were put in place by then President Graeme Neate. On 19 November 2012, the State complied with directions to provide its initial contentions and evidence. On 21 November 2012, the solicitor for the Purnululu native title party indicated that they would not be able to comply with the existing directions because of law business and the ensuing wet season, and requested an extension of time until April 2013, which request was granted by President Neate on 4 December 2012.
For WO2011/0839, the Malarngowem native title claimants’ objection:
• the native title party lodged a statement of contentions dated 5 April 2013 as well as an affidavit of Mr Churchill Cann and an affidavit of Ms Shirley Purdie, both sworn 4 April 2013;
• the grantee party filed their statement of contentions on 16 April 2013; and
• the Government party filed a combined set of contentions on 6 May 2013 in relation to WO2011/0839, WO2011/0165 and WO2011/0991. The matters of WO2011/0165 and WO2011/0991 were determined by Member O’Dea in Geological Resources on 1 August 2013.
For WO2011/0798, the Purnululu native title claimants’ objection:
• the native title party filed a statement of contentions dated 9 April 2013, and affidavits in identical terms to those filed in WO2011/0839;
• the grantee party filed their statement of contentions on 16 April 2013; and
• the Government party filed its statement of contentions on 6 May 2013.
On or before 6 June 2013, all parties confirmed they agreed the matter was ready for determination and that it was appropriate it be dealt with on the papers. In consideration of s 151(2) of the Act, I agree that these matters can be determined in this way.
The Tribunal provided parties with a map of the proposed licence on 19 June 2013 to be used for the purposes of this inquiry, and no objections were received in response.
I was appointed by the President, Ms Raelene Webb QC, as the Member for the purpose of conducting the inquiries.
Legal principles
Section 237 of the Act provides:
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, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act). In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the history and interpretation of s 237(a) from Tarlpa at [57]-[64].
With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38] and [40]-[41] (see also Parker 1 and Parker 2).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little, in particular [588]-[589]).
Evidence and information provided about tenure and the proposed act
Government party
The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs ('DIA', now the Department of Aboriginal Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and tengraph quick appraisal.
The quick appraisal shows significant underlying tenure for the proposed licence consists of: pastoral leases covering a total of approximately 97 per cent (3114/1001 - ‘Lissadell’ and 3114/672 – ‘Mabel Downs’); and a general lease I154304 covering approximately 3 per cent. There is also a mining lease and a miscellaneous licence granted to Argyle Diamonds Ltd covering less than 0.1 per cent and 0.7 per cent, respectively. I also note a National Estate Registered Site (NER/10164) covering 30.2 per cent of the proposed licence area and managed by a Government department.
The proposed licence has previously been affected by 27 exploration licences in operation between 1982 and 2010 (encroaching variously between less than 0.1 per cent and 35.8 per cent) and 24 mineral claims were in operation between 1970 and 1986 (encroaching variously between less than 0.1 per cent and 0.5 per cent). There were also three prospecting licences in operation variously between 1998 and 2009 (encroaching variously between less than 0.1 per cent and 0.1 per cent), and two temporary reserves, one granted in 1963 and cancelled in 1972 and the other granted in 1973 and cancelled in 1974 (encroaching 100 per cent and 0.5 per cent, respectively).
In addition, services affected on the proposed licence include: four camel yards; minor roads; tracks; fence line; yards; two wells/bores with windmills; various major watercourses (including Emu Creek, Turkey Creek, Fargoo Creek and Blackfellow Creek); and the spring/soak/rockhole/waterhole named Fig Tree Hole.
Tribunal mapping indicates that there are no Aboriginal communities within the proposed licence. I note the Warmun (Turkey Creek) Community is approximately 5 kilometres west of the proposed licence, but not within either of the native title party claim areas. I note both Mr Cann and Ms Purdie live at Warmun. I also note that the Purnululu Conservation Reserve is about 15 kilometres to the south of the proposed licence.
The extract from the DIA Aboriginal Heritage Inquiry System, Aboriginal Sites Database, indicates there is one registered site within the proposed licence:
• ID 14490 (‘Osmond Valley, Closed, No restrictions, Type: skeletal material/ burial’).
The extract also indicates that there are eight ‘other heritage places’ within the proposed licence:
• ID 17804 ('Unnamed site Turkey Creek/ Bow River Junction');
• ID 17806 (‘Waringarri 03’);
• ID 17807 ('Unnamed Ethnographic Site');
• ID 17808 (‘Lunja/ Archaeological Site Complex’);
• ID 17809 (‘Waringarri 04’);
• ID 17825 (‘Waringarri 05’);
• ID 21542 (‘Rte/adm 0803-01); and
• ID 22060 (‘Bilingarin, Warmun Women’s Ceremonial Ground’).
The draft tenement endorsements and conditions extract provided by the Government party indicates that the grant of the proposed licence will be subject to the following conditions; in addition to the four standard conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at[11]):
5. The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6. The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of the grant of the licence; or registration of a transfer introducing a new licensee; advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. The right of ingress to and egress from Miscellaneous Licence 80/1 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
8. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Repeater Station Site Reserve 39494.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3.The land the subject of this licence affects Rainforest areas. The license is advised to contact the Department of Environment and Conservation for detailed information on the management requirements for rainforest areas and rainforest monitoring site or sites present within the tenement area.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4.The Licencee attention is drawn to the provisions of the:
·Waterways Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
5.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
6.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
7.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
8.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
• 50 metres from the outer-most water dependant vegetation of any perennial waterway, and
• 30 metres from the outer-most water dependant vegetation of any seasonal waterway.In respect to Proclaimed Surface Water and Irrigation District Areas (Fitzroy River and Tributaries) the following endorsements apply:
9.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
10.All activities to be undertaken with minimal disturbance to riparian vegetation.
11.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
12.Advice shall be sought from DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Area (Canning-Kimberley) the following endorsement applies:
13.The abstraction of groundwater is prohibited unless a current licence to construct/ alter a well and a licence to take groundwater has been issued by the DoW.
The Government party states (at 19) that it will consider placing a condition on the grant of the proposed licence enabling the native title party to ask the grantee party to enter into a Regional Standard Heritage Agreement (‘RSHA’). The Government party notes (at 21) that whilst the Kimberley Land Council does not have an RSHA, the condition they identify has previously been held by the Tribunal to have sufficient clarity about the agreement to which it refers (see Richmond at [46] and [64]-[65]). The only difficulty I have with this contention is that the Government party has not actually identified or proposed a particular RSHA condition.
Native title party
The native title parties lodged separate but identical submissions in these matters. The submissions address each subsection of s 237 of the Act, cross-referenced with portions of the affidavit material.
In relation to s 237(a), the native title parties state that their members conduct the following social and community activities within the proposed licence area:
• ‘belong to the country’ (at 13(a) of the contentions, Mr Cann’s affidavit at 6-11, and Ms Purdie’s affidavit at 8-10);
• ‘live and camp and conduct their community’ (at 13(b) of the contentions and Mr Cann’s affidavit at 10-23);
• ‘hunt and fish’ (at 13(c) of the contentions, Mr Cann’s affidavit at 13, 14 and 16, and Ms Purdie’s affidavit at 9);
• ‘visit country and collect traditional foods and products’ (at 13(d) of the contentions and Mr Cann’s affidavit at 17-20);
• ‘look after Aboriginal sites of importance and significance’ (at 13(e) of the contentions, Mr Cann’s affidavit at 24-33, and Ms Purdie’s affidavit at 10-15);
• ‘teach their young people about traditional law and culture’ (at 13(f) of the contentions and Mr Cann’s affidavit at 23 and 31); and
• ‘teach others about their law and culture’ (at 13(g) of the contentions and Mr Cann’s affidavit at 15).
The submission cites the passage of Carr J in Ward, that the very thought of intensive exploration activities could interfere with ‘community life’ (at 14). As I and other Members of the Tribunal have outlined in the past, (for example, Swancove Enterprises at [22]) since the 1998 amendments to the Act, the expedited procedure is only not attracted if there is direct interference with the carrying on of community and social activities of the native title holders which must involve a physical component. The Carr J statement based on the previous wording ‘community life’ in s 237(a) is no longer applicable, (see also Ling/Sibraa at [23] and Kimberley Quarry at [34]).
In relation to s237(b), the native title parties state the following in relation to sites of particular significance on the proposed licence area:
• there are ‘Dreamtime stories connected to the tenement area’ (at 28(a) of the contentions and Mr Cann’s affidavit at 25);
• there is a special man's story associated with a hill (presumably Turkey Hill), and special places near number 3 bore, including burial places (Mr Cann's affidavit at 26-28);
• ‘there are parts of the tenement area which should not be visited by women and are connected to secret man’s business’ (at 28(b) of the contentions and Mr Cann’s affidavit at 27);
• ‘there are parts of the tenement area which should not be visited by men and are connected to secret woman’s business’ (at 28(c) of the contentions and Ms Purdie’s affidavit at 9-11);
• ‘there are native title party burial sites in the tenement area’ (at 28(d) of the contentions and Ms Purdie’s affidavit at 12-13); and
• they ‘have Dreamtime stories about consequences for the Native Title Party and others should people go out to the sites identified without permission’ (at 28(e) of the contentions, Mr Cann’s affidavit at 32 and 35, and Ms Purdie’s affidavit at 16).
The native title parties assert that the proposed licence area is ‘site rich’, and note that the DIA Register indicates the presence of Osmond Valley, a registered closed site. They state that where tenement areas are shown to be ‘site rich’, it is incumbent upon the grantee party to lead some evidence to provide a basis upon which the Tribunal might be assured that interference, intentional or otherwise, is not likely (at 18). This issue is dealt with in more detail at [52].
The native title parties state (at 20) that the protections afforded by s 17 of the AHA only cover sites and objects as defined and in accordance with the terms of that Act, and that the definition of the area to which the AHA applies is more restrictive that the terms of s 237(b) of the Native Title Act (at 21). They state that there are, therefore, areas and sites of significance under s 237(b) of the Act which do not fall within the definition of ‘site’ under the AHA and would, therefore, not be protected under the AHA. They note (at 25) the mechanisms set out in the AHA which provide that the grantee party must have the consent of the Minister before using the land for any purpose which would result in a breach of s 17 of that Act do not require consultation with any native title holders. The native title parties state (at 26) that the existence of legislation such as the AHA does not require the Tribunal to conclude that the prospect of interference with sites of significance is removed by the application of a presumption that the law will be observed by the grantee party (see Ward).
In relation to s 237(c), the native title party contend (at 36) that the grant of the tenement is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to land because the grantee party’s rights to exploration activities, if the proposed tenement is granted, may affect: the native title party’s right to protect significant sites (at 36(a)); right to care for country (at 36(b)); right to go out onto country (at 36(c)); right to hunt and fish on country (at 36(d)); right to exercise cultural heritage storytelling and ceremony (at 36(e)); right to gather produce from country (at 36(f)); right to teach young people culture (at 36(g)); and right to visit historically significant places (at 36(h)).
Grantee party
The grantee party lodged submissions in essentially the same terms in relation to each native title party (although it notes that the proposed licence only encroaches a small amount within the Purnululu claim). The grantee party states that it sent a letter offering an RSHA to each native title party via the Kimberley Land Council, but was subsequently advised that the native title parties instead sought execution of their preferred alternative heritage agreement. In response, the grantee party considered that the alternative agreement proposed did not allow sufficient flexibility to explore expeditiously, and that the heritage costs were excessive considering the logistics of the project. The grantee party notes there are nine heritage sites on the proposed licence, with eight defined as ‘open’. It states that it believes the expedited procedure applies as the proposed licence is a ‘first pass’ exploration tenement. By that I take it that the grantee party means they will be doing only preliminary exploration activities on the proposed licence.
The Tribunal has accepted that the intentions of a grantee party in a particular matter is relevant in assessing whether their activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
As the grantee party has not provided any evidence in relation to its proposed exploration programme or how it intends to exercise the rights granted under the proposed licence, it is open for the Tribunal to infer that the grantee party will exercise those rights to their full extent (see Silver at [25]-[32]; Monadee at [17]).
The grantee party also states that 'any ground disturbance carried out by humans in the area in the past has been generally minimal'. I am not sure what this statement is based upon, given no information or evidence has been provided about the nature or extent of past exploration or mining activity on the area, apart from the broad materials provided by DMP showing that past licences have been granted over the area. In any event, if the grantee party is correct in its assertion that past activity has been minimal, that mitigates towards concluding that the expedited procedure does not apply, as the activities and sites of the native title party would have been little disturbed by explorers’ past activities.
Considering the evidence under s 237 of the Act
Section 237 (a) Interference with community and social activities
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
In this matter, the native title parties have provided general contentions (as outlined above at [29]-[30]) regarding s 237(a) of the Act.
The affidavit deponents, Mr Cann and Ms Purdie, state that they are senior Kija people with authority to speak about Kija land matters. I note that the Malarngowem and Purnululu native title claims are among a number filed on behalf of the Kija people. I accept that the deponents have authority to give evidence in this matter and I accept the truth of what they have said.
Mr Cann states that he lives at Warmun community, which he indicates is less than five kilometres from the tenement area, and states that ‘we use this country all the time’ (at 10). He states (at 11) that the exploration licence area falls within ‘Kija country’. He notes that ‘in the dry’ the Kija people go out to the exploration license area ‘through Texas downs and then drive up the exploration license area to get to the exploration license area to get the best fishing places like blackfella number 3 bore which is in the middle of the exploration license area about 10 km down from its northern edge’ (at 12). He states that ‘when we go out to the exploration license area we often camp at number 3 bore or Bow river junction and the camel yard and up to Lissadell just north of the exploration license area’, noting that ‘these places are very good for fishing and hunting’ (at 13).
Mr Cann recalls that the last time he and others (approximately ‘[f]ive or six cars’) went to the proposed licence area was after someone in the community died, at which time they ‘stopped at the number 3 creek and moved close to Bow River’ (at 14) and caught and cooked kangaroo (at 14). He notes that the native title parties ‘go hunting for kangaroo; jerlee, turkey; bengalbul, goanna; jurnambine, emu; weerlee and go out fishing for bream jumbarbaren, catfish jalenge and cherumbin’ (at 16), and also ‘collect sugar bag sweets narlu and boab nuts joomalen’ (at 17) and ‘white gum Bungal’ (at 21). He notes that the native title parties collect different plants and use them for medicinal purposes (at 18-20). Mr Cann notes that the native title parties take non-Kija people out to the proposed licence area for hunting and camping trips as well as Kija grandchildren (at 23). He states that a group stayed at Mirrilingki ‘last June until May’, which he describes as a ‘spiritual centre which operates out of the Warmun area’, where ‘volunteers often come and stay...to volunteer their services and help out around the community’ (at 15). As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investment at [14])
I agree with the Government party (at 49, WO2011/0839 SSO contentions) that the phrase ‘conducts their community within the tenement area’ is too vague to be helpful or probative for the purposes of the inquiry. I accept the evidence that members of the native title parties engage in activities on E80/4536, including hunting and fishing, visiting and collecting traditional foods and products and teaching young people and others about traditional law and culture. There is an aboriginal community very near the proposed licence, which I accept is likely to mean that social and community activities are undertaken by the native title parties more frequently on areas such as the proposed licence, compared with areas further away from the community. However, there is little information on how frequently or where these activities take place, or whether or not they can be done elsewhere on the claim areas.
I agree with the Government party (at 41, WO2011/0798 SSO contentions; 42, WO2011/0839 SSO contentions) that to the extent that the evidence demonstrates members of the native title parties do carry out any community or social activities in the area of the proposed tenements, there is not likely to be direct interference with those activities because:
• Hunting and exploration activities are, by their nature, inherently capable of coexistence; and
• To the extent that the activities conducted by the native title party consist of ceremonies within the proposed tenement area, there is limited scope for intersection of these activities with the activities of exploration.
I have assumed, in the absence of evidence about the grantee party’s exploration programme, that the grantee party will fully exercise the rights conferred by the grant of the proposed licence (see Silver at [30]–[32]). However, the evidence does not suggest that the exercise of those rights will interfere significantly with the native title party’s community or social activities as they have been expressed in the evidence. As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investment Corporation at [14]).
In addition, the size of the proposed licence is 264.98 square kilometres and the area of the Malarngowem claim, in particular, is 7,529.5 square kilometres. Consistently with previous Tribunal decisions, including the Hon C J Sumner’s reasoning in Image Resources, I find that the size of the proposed licence area in the context of the much larger native title claim area makes it less likely that the proposed exploration activity will interfere with whatever community or social activities are carried out by the native title party.
Taking all of the evidence into account, including the nature and extent of activities on the proposed licence as expressed in such general terms as they are in this matter, I find that the act is not likely to interfere directly with the carrying on of community and social activities under s 237(a) within this proposed licence.
Section 237 (b) Interference with sites of particular significance
The issue the Tribunal is required to determine under s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (or more than ordinary) significance to the native title party in accordance with their traditions. There is one registered Aboriginal site on the proposed licence area, as outlined at [22] above, in addition to eight ‘other heritage places’. 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’s evidence directed at s 237(b) of the Act is outlined at [30]-[32] above, and the grantee parties intended activities are outlined at [34] above.
Mr Cann states that there is a goanna dreaming story about a place which is just outside the exploration license area, which concerns the journey of the goanna through to Killarney Bore (at 25). In the story, the Dreamtime Goanna ‘can make it rain and there will be very bad lightening (sic) if Kija boys are mucking around and not looking after country’ (at 25). He notes another story, ‘Galamun’, about ‘how we are not supposed to touch the hill which is full of quartz’ (at 27). Mr Cann makes several other statements regarding various sites, including: that there ‘are other special places up near number 3 bore’; there ‘are some burial places around bore number 3’; there ‘is a story about an emu and his friends and men getting killed out by the old station’ (at 28); there ‘is another dreaming story about Emu Springs and Emu Creek’ (at 29); and that there ‘was a man who killed all the white people and was hiding out at number 3 bore’ (at 30). Mr Cann asserts that if explorers or other people go out to the exploration licence area without talking to the native title parties first, the ‘Dreamtime mob will come down Cattle Creek and check on what is happening with the Kija people’, and ‘create trouble for everyone’ (at 32).
In her affidavit, Ms Purdie states that ‘[t]here are places in the tenement area that are important to the Kija people’ (at 10). She states that there ‘is a creek which runs from the Highway half way between Six Mile Bore and Turkey Creek community, we call it 3 Mile Creek’ and that ‘[a]long the creek, there are very special women’s law countries’, including a ‘special waterfall’ (at 11). She indicates that '[m]en are not allowed to go out this places and we as women go there for law ceremony’ (at 11). Ms Purdie also states that there are burial sites in the southern part of the exploration licence area, and ‘more special country south of Kilarney’ (at 12). She goes on to describe that this was the place her ‘father’s mother and Grace and her sister Nellie were taken away from living in the exploration licence area to a mission’. She notes that ‘[e]ven though families were moved off the exploration licence area there are still burial sites everywhere in the caves’ (at 12). Ms Purdie states that she knows these stories from her Aunty Winnie, and that if the burial grounds got damaged, Kija women would be responsible under traditional law, ‘and anyone who goes out without [their] permission will get sick’ (at 16).
The native title party’s contentions state that the proposed licence area is ‘site rich’ (at 19). I have dealt with this issue in Geotech International and adopt the principles so outlined there. I agree with the Government party (at 54-55 WO2011/0798 SSO contentions; at 73, WO2011/0839 SSO contentions) that this term 'site rich' is of no forensic value to the Tribunal as it does not form part of any identifiable test arising out of previous decisions. I note that, in spite of the term 'site rich' being of limited assistance to the Tribunal, there are a great concentration of DIA registered sites to the north and south of the proposed licence, according to Tribunal mapping. While these sites are outside of the proposed licence, other sites, such as Moonlight Bore (to the east of the proposed licence, as referred to by Mr Cann), are said to be linked with sites on the proposed licence (such as Killarney Bore and the Osmond Valley closed site) (as outlined at [53] below). The central issue is not whether this area is site rich, but whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of the grantee party.
I am satisfied that there is an identified burial site within the proposed licence area, namely, Osmond Valley, and both affidavits refer to significant burial sites south of Killarney, which area I note includes the registered Osmond Valley site. I further also note the Government party states (at 51, WO2011/0798 SSO contentions) it does accept there is sufficient evidence to demonstrate the Osmond Valley site is a site of particular significance. I agree that there is sufficient evidence to indicate the Osmond Valley site is of particular significance. Mr Cann also refers to the Emu Creek area and Bore 3, but the evidence regarding any special significance of these sites is limited.
The native title parties assert that a goanna dreaming story exists in the area between Moonlight Bore (outside the proposed licence area, to the east) and Killarney Bore (within the mid-region of the proposed licence area), and details the significance of that story. It appears that the Osmond Valley site, the Killarney Bore and Moonlight Bore sites form a rough triangle-like area which is of particular significance for the native title party, and in particular, for men's business.
Mr Cann also indicates that a Range runs between Turkey Creek and Moonlight Bore, and I note that this crosses the mid-section of the proposed licence area. He refers to the Galamun dreamtime story associated with the Range, but indicates that as it was ‘special man’s story’ which he could not tell to the interviewer. This area also runs through that triangular shaped area as outlined in the previous paragraph of this determination.
Ms Purdie refers to a creek which the native title party call 3 Mile Creek, located from the Highway half way between 6 Mile Bore and Turkey Creek, where there are ‘very special women’s law countries’. From Tribunal mapping, and in the absence of evidence to the contrary, it appears that this Creek and general area is just outside the proposed licence area. However, it is very near the triangular area of particular significance outlined in paragraphs [53]-[54] above. I could not conclude that the area of women's business would be interfered with by activities of the grantee party, but clearly this area near the closed site of Osmond Valley, which is very near the Warmun community, is one of particular significance to the native title parties. I accept Ms Purdie’s evidence that there are burial sites in the southern part of the exploration licence area, at the registered Osmond Valley site and potentially unregistered sites elsewhere, including cave areas. The Tribunal has previously accepted that burial sites may be sites of particular significance notwithstanding a lack of evidence describing the specific connection between the site and the laws and customs of the native title holders (see Bayform Holdings).
The Government party response states (at 57, WO2011/0798 SSO contentions; at 75, WO2011/0839 SSO contentions) that in the event of there being any areas or sites of particular significance within the proposed tenement, interference with those areas is not likely because:
• To the extent the sites referred to generally in the native title party’s contentions are ‘sites of particular significance’, the grantee party is now aware of the existence of these sites and of its legal obligation in respect of these sites;
• To the extent the native title party has concerns regarding the disturbance of law ceremonies by the grant of the proposed licence area can be said to extend to a concern about the law site itself being subject to interference (which is not clear), it cannot be assumed that the grantee party will not comply with its legal obligations under the proposed licence;
• The area of the proposed licence has been subject to prior exploration and possibly mining activity, and is also largely covered by pastoral and general leases, so the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area;
• Any ‘Aboriginal site’ (as defined in s 5 of the AHA) within the area of the proposed tenement but not on the Register will be protected by s 17 of the AHA. The grantee party may not contravene s 17 without the consent of the Registrar (s 16 AHA) or the Minister (s 18 AHA), and if the grantee party applied for consent under s 18, the Aboriginal Cultural Materials Committee would need to be satisfied of the adequacy of the consultation with any relevant Aboriginal persons (which in this case, is likely to involve the native title parties).
I accept the native title parties contention that there is a likelihood of sites existing in the proposed licence which are not on the Register, in addition to the one registered site and eight ‘other heritage sites’. I find that the area which forms Osmond Valley, Killarney Bore and Moonlight Bore has been described sufficiently to reach a conclusion that it is an area of particular significance.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example, Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance.
I accept that the grantee party is now aware of the existence of this area of particular significance, which is also important to men's business, and very close to an area of women's business. I also accept that there is no evidence the grantee party will fail to comply with the State's regulatory regime. However, given the nature of the area of particular significance, inadvertent interference may occur. In addition, as noted earlier in this determination, the grantee party states previous interference from exploration is likely to have been minimal, and there is no evidence pastoral activities have interfered with such sites.
The Government party state that the AHA will prevent interference with sites of particular significance, but do not specifically outline how such will be prevented. The grantee party has submitted that it will comply with the AHA but has not provided an explanation of how avoidance of sites of particular significance will be undertaken apart from referring to an RSHA. As Member O’Dea noted in Allarow (at [36]), a matter where the expedited procedure did apply could be distinguished from a matter where the expedited procedure did not apply, where ‘the grantee party had gone to considerable lengths to explain precisely how it would consult with the native title party in order to ensure that any difficulties that arose in relation to potential interference with sites of particular significance that they had identified would be dealt with’. Due to the nature of the sites in this matter, it appears they would not be easily identifiable by the grantee party and the identification is further complicated by part of the area being gender restricted to men (with areas just off the proposed licence gender restricted to women).
While the Government party indicates the grantee party is aware of the existence of these sites, they are not readily identifiable by persons other than the native title party. As Member O’Dea noted in Allarow (at [40]) the RSHA ‘only requires the conduct of surveys where ground disturbing activity is taking place’, and given the nature of the sites of particular significance, inadvertent interference is possible if the grantee party enters the area without guidance from the native title party.
As such, for the purposes of s 237(b) of the Act, I find there is a real risk of interference with sites of particular significance on this proposed licence.
Section 237 (c) Major disturbance of land and waters
For s 237(c), the Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.
The native title parties contentions in relation to s 237(c) are outlined at [33] above. I agree with the Government party’s contentions (WO2011/0839 SSO contentions) that the native title parties have misunderstood the ambit of s 237(c). The native title parties seek to demonstrate that permissible activities of the holder of an exploration licence will significantly disturb the capacity of the native title party to exercise its ‘rights’ on the area of the proposed tenement. These ‘rights’ include native title rights and interests and general activities such as 'the right to protect significant sites', the 'right to hunt and fish on country', the 'right to teach young people culture', and others (at 36(a)-(h)). They then seek to characterise that disturbance as major. The Government party argues that s 237 (c) is only enlivened when a real risk of major physical disturbance to land or water is identified (or the creation of rights whose exercise could lead to such disturbance) (see Smith at [23] and Rosas at [87]). The argument of the native title party seems to be that in accordance with their traditional law, any unauthorised disturbance of land or waters will have a major impact on the native title parties’ traditions, way of life and rights. In one sense it is rerunning the arguments already used in relation to s 237(a) and (b).
Mr Cann states in his affidavit that the grantee party’s exploration ‘could cause trouble with the Dreamtime or damage some of our special story places’ (at 35), and that they could ‘do real damage to fresh water and our good hunting and fishing places’ (at 36). He asserts that ‘anyone who is not Kija needs to ask permission before they can go out on to our country’ (at 37).
The Government party submits (at 84, WO2011/0839 contentions; at 66, WO2011/0798 contentions) that the grant of the proposed licence is not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance to the land, for the following reasons:
• The exercise of rights conferred by the exploration licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment;
• Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration;
• The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity; and
• It does not appear that the area of the proposed licence has any particular characteristics that would be likely to result in major disturbance to land and waters arising, given the grantee party will be conducting exploration activities.
Having regard to these factors, and in particular the last factor listed in [64], I do not find that major disturbance to land and waters under s 237(c) of the Act is likely to occur in this matter.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E80/4536 and to the grantee party, is not an act attracting the expedited procedure.
Helen Shurven
Member
23 October 2013
6
24
0