Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/ Western Australia/MineralogyPty Ltd
[2008] NNTTA 5
•17 January 2008
NATIONAL NATIVE TITLE TRIBUNAL
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/ Western Australia/MineralogyPty Ltd, [2008] NNTTA 5 (17 January 2008)
Application Nos: WO07/382, WO07/383 and WO07/384
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined (WC99/12) (native title party)
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The State of Western Australia (Government party)
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Mineralogy 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: 17 January 2008
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites of particular significance – whether acts likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 237
Aboriginal Heritage Act 1972 (WA), ss 18, 62
Mining Act 1978 (WA), ss 63, 111
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
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
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Parker on behalf of the Martu Idja Banyima People v State of Western Australia 2007 FCA 1027
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Mark Lockyer and Others on behalf of Kuruma Marthudunera/Western Australia/Mineralogy Pty Ltd, NNTT WO06/732, WO07/204 and WO07/205, [2008] NNTTA 3 (14 January 2008), Hon C J Sumner
Counsel for the
native title party: Mr Stephen Wright
Representative of the
native title party: Ms Giselle Harris, Pilbara Native Title Service
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Industry and Resources
Representative of the
grantee party: Ms Baljeet Singh, Mineralogy Pty Ltd
REASONS FOR DETERMINATION
On 14 February 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E47/1405, E47/1406 and E45/1407 (‘the proposed licences’) to Mineralogy Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grants attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licences are located in the Shire of Ashburton and the size, location and overlaps with registered native title claims, determination areas and prescribed body corporates are as follows.
E47/1405 – 149.37 square kilometres, 61 kilometres easterly of Pannawonica, 98.44 per cent overlapped by the Kuruma Marthudunera combined registered claim (WC99/12, registered from 24 June 1999) and 1.56 per cent overlapped by the Yindjibarndi Aboriginal Corporation Prescribed Body Corporate (registered from 2 May 2005).
E47/1406 – 139.84 square kilometres, 74 kilometres easterly of Pannawonica, 77.06 per cent overlapped by the Kuruma Marthudunera combined registered claim and 22.94 per cent overlapped by the Yindjibarndi Aboriginal Corporation Prescribed Body Corporate.
E47/1407 – 193.76 square kilometres, 88 kilometres easterly of Pannawonica, 92.66 per cent overlapped by the Kuruma Marthudunera combined registered claim and 7.34 per cent overlapped by the Yindjibarndi Aboriginal Corporation Prescribed Body Corporate.
On 10 June 2007, expedited procedure objection applications were lodged with the Tribunal by Mark Lockyer and Others on behalf of the Kuruma Marthudunera combined (WC99/12) (designated WO07/382 in respect of E47/1405, WO07/383 in respect of E47/1406 and WO07/384 in respect of E47/1407). No objections were lodged on behalf of the Yindjibarndi Aboriginal Corporation Prescribed Body Corporate.
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the preliminary conference on 10 July 2007, the native title party was not present. The grantee party advised that, in accordance with the Government party’s policy, a Regional Standard Heritage Agreement (‘RSHA’) had been signed and forwarded to the native title party prior to notification under s 29 of the Act. The grantee party was not prepared to negotiate an alternative agreement and, supported by the Government party, requested that the matter proceed to inquiry with directions to be brought forward by nine weeks with a Listing Hearing to be conducted on 17 August 2007.
The native title party subsequently opposed this request and on 31 Jul 2007 requested time to seek instructions regarding the RSHA at a working group meeting scheduled for 2 August 2007. On 3 August 2007 parties advised that no agreement could be reached. Directions were then made and subsequently extended at the request of the native title party.
At the request of parties on 3 September 2007 I directed that s 150 mediation assistance be provided by the Tribunal. On 10 October 2007 the s 150 Tribunal Member appointed to provide mediation assistance to the parties terminated the conferences as no agreement could be reached.
The Government party lodged its contentions and evidence by 24 July 2007 and the native title party by 4 September 2007. The grantee party lodged its material on 16 October 2007, following a number of requests for extension (which were agreed to by all parties).
On 26 October 2007, at a Listing Hearing all parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’ that is, without holding a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2) NTA).
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 v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal 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 while noting that the Mining Act has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been modified.
The modified conditions are stronger than those considered in Walley. In particular Standard Condition 2 now contains the additional requirement that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act (inserted post Walley) which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyima People v State of Western Australia 2007 FCA 1027 the Federal Court (Siopsis J) rejected an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision has now been appealed to the Full Federal Court and judgment was reserved on 16 November 2007.
Evidence in relation to the proposed act
Government party documentation establishes the following underlying land tenure, past and current exploration activity on the proposed licences:
E47/1405
Department of Environment and Conservation Water Reserve 9 (32.5 per cent overlap)
Department of Environment and Conservation Water Supply Common Reserve 38991 (4.1 per cent overlap)
Two Vacant Crown Land Parcels (32.6 and 63.2 per cent overlap)
There is one ‘live’ exploration licence granted in 2006 overlapping at 19.1 per cent and two ‘pending’ exploration licences overlapping at 2.1 and 78.7 per cent each. Recent ‘dead’ exploration licences include one granted in 1992 and surrendered in 1995 overlapping at 0.5 per cent, one granted in 1993 and surrendered in 1996 overlapping at 97.2 per cent, one granted in 1995 and surrendered in 1997 overlapping at 0.5 per cent, and one granted in 2001 and surrendered in 2007 overlapping at 0.5 per cent.
E47/1406
Department of Environment and Conservation Water Reserve 9 (76.6 per cent overlap)
Department of Environment and Conservation Water Supply Common Reserve 38991 (22.9 per cent overlap)
Two Vacant Crown Land Parcels (64.7 and 12.3 per cent overlap)
There is one ‘live’ exploration licence granted in 2006 overlapping at 22.7 per cent and two ‘pending’ exploration licences overlapping at 22.7 and 54.5 per cent each. Recent ‘dead’ exploration licences include three granted in 1993 and surrendered in 1996 overlapping at 0.3, 1.1 and 97.5 per cent, one granted in 1995 and surrendered in 1997 overlapping at 1.4 per cent, and one granted in 2000 and surrendered in 2002 overlapping at 0.2 per cent.
E47/1407
Department of Environment and Conservation Water Reserve 9 (72.8 per cent overlap)
Department of Environment and Conservation Water Supply Common Reserve 38991 (7.3 per cent overlap)
Vacant Crown Land Parcel (92.7 per cent overlap)
There are two ‘live’ exploration licences granted in 2006 overlapping at 1.6 and 6.6 per cent and three ‘pending’ exploration licences overlapping at 1.6, 8.2 and 82 per cent each. Recent ‘dead’ exploration licences include two granted in 1993 and surrendered in 1996 overlapping at 10 and 97.3 per cent, one granted in 1995 and surrendered in 1997 overlapping at 0.9 per cent, and two granted in 2000 and surrendered in 2002 overlapping at 26.2 and 27.5 per cent each.
The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions imposed on all licences relate to:
Prior written consent of the Minister for State Development being obtained before commencing mining on Water Supply Reserve 38991.
Consent to mine on Water Supply Reserve 38991 subject to Water and Rivers Commission restrictions, prohibitions and approval requirements in relating to; notification of proposed ground disturbing activities on the reserve; disturbing or removing any significant waterway (flowing or not), wetland or its fringing vegetation; rights of ingress to and egress from the reserve for its officers; storage and disposal of hydrocarbons, chemicals and potentially hazardous substances; compliance with the Water Quality Protection Note; Mining Act tenement activities within Public Drinking Water Source Areas; Mining Act tenement activities within 2 kilometres of the maximum storage level of the reservoir itself; storage and use of hydrocarbons and potentially hazardous substances; reporting and remediation of hydrocarbon or other pollutant spillage; Mining Act tenement activities within a 300 metre radius of any observation well in a Public Drinking Water Source Priority P1, P2 and P3; and Mining Act tenement activities within a 500 metre radius in a P1 area or a 300 metre radius in a P2 or P3 area of any Public Drinking Water Source production well or dam.
An additional condition imposed on E47/1406 relates to:
No interference with Geodetic Survey Station NMF 500 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed on the proposed licences.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA), the Country Areas Water Supply Act 1947 (WA), Metropolitan Water Supply Sewerage and Drainage Act 1909 (WA) and the Water and Rivers Commission Act 1995 (WA).
The licensee pursuant to the approval of the Minister for State Development under section 111 of the Mining Act 1978 (WA) is authorised to explore for iron.
The Government party will place the following condition on the grant of each of the proposed licences:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Kurrama Marthudunera People, the applicants in Federal Court application no WAD 6090 of 1998 (WC99/12), such request being sent by pre-paid post to reach the Licensee’s address Post Office Box 7334, Cloisters Square, Perth WA 6090 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Kurrama Marthudunera People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Pilbara Native Title Service.’
The Government party documentation notes there are no Aboriginal communities in the vicinity of the proposed licences.
The Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) documents one registered site within the proposed licences:
6508 – Punarra Hill, mythological, permanent register, closed access, located on E47/1405
In support of its contentions, the native title party’s submissions include the affidavit of Elaine James dated 3 September 2007 made in the following terms:
‘I, Elaine James, of K & M do sincerely and solemnly affirm and declare as follows:
1.I affirm this affidavit in support of the Kuruma Marthudunera (‘KM’) native title claim group’s objection to Mineralogy’s expedited procedure application over exploration licences E47/1405, E47/1406 and E47/1407.
2.The area covered by the tenement applications is important to me. I was born near this area and I travelled around it as a child with my family. All of my brothers and sisters were born in the surrounding area, and so were my mother, father and cousins.
3.I still go and visit the Millstream area, including land covered by the tenement applications, whenever I can, at least once a year.
4.Last year I spent around two months travelling around Millstream, in August and September. The land was very green because there had recently been a bushfire and all the plants were growing. I camped and visited old people. I don’t take a tent when I go camping, I sleep in a swag under a tree and I feel safe, because I am on my country. It is like being in my own back yard. I know the landmarks and all the stories and I never need a map; I always know where I am in this area.
5.I take my grandchildren to the area and tell them stories about country. I have 29 grandchildren and I like to take them out and show them where I grew up. We go hunting and fishing. There are not many kangaroos, but we hunt goannas and we go fishing in the Robe River or in one of the little creeks. All the little creeks join up with the Robe River. We call the Robe River Dajorda - that is its name.
6.Other members of my family visit this area too; I know that my sister’s children come and visit it. When I catch up with my family, we talk about Millstream and we reminisce about what it used to be like. We are sad because this area has changed a lot since we were kids. The Robe River used to be crystal clear, and this whole area used to be greener.
7.Sometimes I go to the burial site near Koombunna Creek, where some old people are buried, and I talk to them about how the area has changed. It is very sad. I don’t want anyone disturbing the burial ground; the old people need to stay there.
8.I can’t go everywhere around Millstream; there are four law grounds along the Robe River, one of them is called Gawayawah. I cannot go to these grounds, and I also cannot go to the rainmaking site which is near the tenements. Only men can go there.
9.I understand that an exploration licence will allow Mineralogy to explore for minerals on the area. I understand that at first they will only be small drill holes, but I don’t want my country to have holes in it. Also, if they find iron ore, Mineralogy will drill bigger holes.
10.I will not want to come out here and see holes in my country. I don’t want to show my grandchildren the area if it will be disturbed. I don’t want them to see that nanna’s country has holes in it.
11.If people explore there, they will take away my dreamtime stories and take away my connection to the land. When the old people were here they never left marks on country, but mining companies will leave marks.
12.When I was growing up in the Millstream area, it was always understood that other Aboriginal groups were welcome on the country, even though it was KM land. We are able to go onto each other’s country because we respect country. Mining companies don’t know the rules and don’t respect country, they just care about iron ore.’
The evidence of Ms James is uncontested and I accept it. The native title party’s claim application notes Ms James as one of the persons claiming to hold native title and I accept that she has authority to speak on behalf of the native title party.
The native title party contends that the grant of the proposed licences are not acts attracting the expedited procedure because their grant is likely to interfere directly with the carrying on of their community or social activities (s 237(a)); or likely to interfere with areas or sites of particular significance to them (s 237(b)). No contention is made in relation to s 237(c). In support of its contentions the native title party relies on the contentions and evidence lodged in Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Mark Lockyer and Others on behalf of Kuruma Marthudunera/Western Australia/Mineralogy Pty Ltd, NNTT WO06/732, WO07/204 and WO07/205, [2008] NNTTA 3 (14 January 2008), Hon C J Sumner (‘Hicks/Lockyer 2008’). The Tribunal recently determined that the expedited procedure was attracted in that matter. Objections WO07/204 and WO07/205 were lodged by the native title party in relation to tenements E08/1414 and E08/1451, located some 95 kilometres north-west of the proposed licences. Because of the distance of the proposed licences from those considered in Hicks/Lockyer 2008 much of the evidence relied upon by the native title party is not directly relevant. However, the contentions and evidence on the grantee party’s attitude to consultation with the native title party and its approach to the protection of sites of particular significance are relevant to the present matters. I deal with them where appropriate by reference to my findings in Hicks/Lockyer 2008.
The grantee party’s contentions were accompanied by an affidavit of VimalKumar Sharma, Managing Director of Mineralogy, dated 16 October 2007. Mr Sharma says (paras 2 & 3) that the exploration activities proposed are the usual activities associated with exploration licences including conducting field reconnaissance and geological mapping, surface geophysics, low impact exploratory drilling and collection of samples for core assays and down hole geophysical logging and survey. Mr Sharma also deposes (para 10) that the grantee party will comply with obligations under relevant legislation including the Mining Act 1978 (WA) and Regulations, the Aboriginal Heritage Act 1972 (WA), Native Title Act 1993 (Cth) and Environmental Protection Act 1986 (WA) and will act lawfully in exercising rights given in respect of the proposed tenements.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([23]). Direct interference involves an evaluative judgement 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 (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
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 on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.
The evidence of Ms James relating to the contemporary community or social activities of the native title party establishes the following.
She visits “the Millstream area, including land covered by the tenement applications” at least once a year.
In August/September 2006 she spent two months travelling around Millstream camping and visiting old people.
She takes her grandchildren to the area and tells them stories about country, to hunt and fish, including in the Robe River or the creeks that run into it.
Other members of her family and particularly her sisters’ children visit the area.
She sometimes goes to a burial site near Koombunna Creek and talks to the old people buried there.
My finding is that this level of community or social activities is not likely to be directly interfered with by the grant of the proposed licences and activities carried out pursuant to them. There is no real risk of interference which is more than trivial. There is no evidence of where Ms James or other family members live. Roebourne is some 100 kilometres to the north. There are no established physical communities of claim group members in the immediate vicinity. Regular visits are only once a year. I take her reference to the Millstream area to include the Millstream National Park which abuts the proposed licence areas to the north. I can infer that the limited community or social activities established by the evidence will still be able to occur over the Park area. The total area of the Kuruma Marthudunera native title claim is approximately 15,759 square kilometres being an extensive area over which (despite areas in which exploration and mining are taking place) the native title party will be able to carry out its community or social activities. Hunting and fishing on the Robe River is unlikely to be interfered with as the proposed licence areas are some 6 to 12 kilometres to the north of it.
Mapping provided by the Tribunal’s Geospatial Unit has not been able to identify the location of Koombunna Creek. It is possibly the same feature as Kumina Creek which runs a kilometre or so to the south of E47/1406 and E47/1407 and intersects with E47/1405 to a limited extent at its western end. I can accept that a burial site of the kind referred to by Ms James is a site of particular significance to the native title party in accordance with its traditions. As such, it will be protected from interference for the reasons explained below. Even if this site is on the area of the proposed licences (which on the evidence is far from clear) it is unlikely to be interfered with and nor are any community or social activities associated with it.
The areas have been the subject of limited previous exploration activity. In particular the grantee party points out that De Beers Australia Exploration Ltd has in recent times carried out exploration on three of their licences which overlap to some extent or are in the close vicinity of the proposed licences. There is no evidence that this exploration has caused any difficulties to the native title party in the conduct of their community or social activities, something which is not surprising given that the evidence of them is quite limited.
In practice, the grantee party’s access to the area would be limited to the area in which exploration is taking place and temporary. While the total area of the proposed licences will be significant (482.97 square kilometres) any intensive ground disturbing exploration (if it occurs) will only at any one time be over a small area within the proposed licences. I note that the grant of the proposed licence does not confer exclusive rights of access on the grantee party and 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.
Sites of particular significance (s 237(b))
On the predictive assessment approach the Tribunal is required to determine 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) significance to the native title party in accordance with their traditions (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35). There is one site recorded on the Register kept under the Aboriginal Heritage Act within E47/1405 but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licences or in the vicinity. 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.
The evidence of Ms James identifies the following sites.
A burial site near Koombunna Creek.
Four law grounds along the Robe River, one of them is called Gawayawah (men only).
A rainmaking site near the proposed licences (men only).
Given the nature of these sites including the gender restriction in relation to five of them, I am satisfied that they are sites of particular significance to the native title party in accordance with their traditions. The reference to dreamtime stories being taken away is too general to lead to their identification associated with any site. In addition, I am satisfied that Punarra Hill, the site on the Register is a site of particular significance to the native title party. This is a reasonable inference to be drawn from its nature (mythological) and because access to it is closed.
For the reasons explained above it is possible that Koombunna Creek (perhaps Kumina Creek) is within the E47/1405 area but this is by no means certain as most of Kumina Creek is outside the tenement areas. If Koombunna is a different creek to Kumina it is also only possible that it is within the area of one or other of the proposed licences as Ms James’ evidence does not specifically locate the burial site which she says is near it (para 7). The remaining sites are not within the proposed licences, these being; the law grounds along Robe River which is located some 12 kilometres south of the proposed licences; and the rainmaking site which Ms James states is near but not within the proposed licences.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. (See for example Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [26]–[34]).
In accordance with Government policy the grantee party executed a RSHA and sent it to the native title party before the s 29 notice was given and has since re-affirmed its prepardness to enter into such an agreement.
In relation to the condition of grant proposed by the Government party noted above at para [17] the RSHA process adopted by the Government party in various regions of WA after discussions with the relevant representative bodies and industry has been detailed in Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 (‘Champion’) at [15]-[35] the relevant parts of which I adopt for the purpose of this determination. The Government party’s condition allows the native title party the option to enter into an RSHA with the grantee party within 90 days of the grant of the proposed licences. The Government party’s proposed condition adds some weight to the regulatory regime in that the objecting native title party is afforded the opportunity to insist on a heritage survey, albeit pursuant to the RSHA, which ensures consultation and a heritage survey with the grantee party takes place to identify sites of particular significance.
The native title party’s contentions on this issue are:
‘5.The Objectors contend that the Aboriginal Heritage Act will not be effective to protect those sites from likely interference by the Grantee party because the Grantee party:
(a)is likely to seek consent under s.18 Aboriginal Heritage Act to disturb sites and
(b)has in the past consistently failed to take account of the concerns of the Objectors in relation to areas or sites of particular significance
In support of these contentions the Objectors rely upon the evidence and contentions in WO07/204 and 205.’
In Hicks/Lockyer 2008 detailed consideration was given to similar contentions and evidence. I adopt the relevant part of my findings from paras [85]-[112] of that determination and find that interference with sites of particular significance to the native title party is not likely to occur.
In Hicks/Lockyer 2008 Mr Sharma gave oral evidence that the grantee party would not: carry out the full range of exploration activity permitted by the grants and particularly there would only be manual drilling down to three metres and no Reverse Circulation or Diamond drilling that would involve trucks or drilling rigs (para 102); and need to make a s 18 application to disturb any site (para 103). His evidence is not before the Tribunal in the present matters. Despite this I am satisfied on the facts before me that the regulatory regime will still be adequate, as it normally is, to render interference with significant sites unlikely. First, Mr Sharma’s affidavit refers to ‘low impact exploratory drilling’ which is consistent with his oral evidence in Hicks/Lockyer 2008 that the full range of drilling techniques will not need to be used thus lessening the likelihood that there will be interference with sites (or the community or social activities of the native title party). Second, in comparison to Hicks/Lockyer 2008 evidence of sites actually on the tenements is quite limited in the present matters. I can see no reason why the RSHA or some other consultation process established between the native title party and grantee party will not be adequate to identify the sites referred to by Ms James and others which may exist. The grantee party is now on notice about the existence of these sites, will need to consult with the native title party about them or run the risk that if interference occurs the defence available under s 62 of the Aboriginal Heritage Act will not be available to it.
Major disturbance to land and waters (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 to land or likely to create rights whose exercise are likely to involve major disturbance to land. The Tribunal applies the law as enunciated by the Full Federal Court in Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 and more recently in Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (5 December 2005). The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.
The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land. In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (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 cases cited therein at [50]).
In making a finding on this point I have had regard to the fact that there are no Aboriginal communities in the vicinity; there is some history of exploration in the vicinity; that the presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities; the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4) and also include extensive conditions relating to rehabilitation, interference and restrictions over the Millstream Water Supply Reserve 38991; and the endorsement in relation to the Country Areas Water Supply Act 1947 (WA), Metropolitan Water Supply Sewerage and Drainage Act 1909 (WA) and the Water and Rivers Commission Act 1995 (WA)). I find that there is not likely to be major disturbance to land or waters in this case.
Determination
The determination of the Tribunal is that the grant of exploration licences E47/1405, E47/1406 and E47/1407 to Mineralogy Pty Ltd are acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
17 January 2008
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