Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd
[2006] NNTTA 133
•5 October 2006
NATIONAL NATIVE TITLE TRIBUNAL
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, [2006] NNTTA 133 (5 October 2006)
Application No: WO 03/925
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Mark Lockyer, Neil Finlay, Red Alexander, Jean Lockyer, Gloria Lockyer on behalf of Kuruma Marthudunera (native title party)
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The State of Western Australia (government party)
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Mineralogy Pty Ltd (grantee party)
INQUIRY INTO AN EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 5 October 2006
Catchwords: Native title – future act – proposed grant of exploration licence - expedited procedure objection application – location of sites – “site rich” area – spiritual dimension of community or social activities – legal principles – whether act directly interferes with community or social activities – no right of veto by native title party - whether act interferes with areas or sites of significance – likelihood of major disturbance to land or waters – an act which attracts the expedited procedure
Hearing Dates: 18 November 2003, 14 December 2005, 18 January 2006
Representatives -
Native title party: Sunil Sivarajah, Legal Officer, Pilbara Native Title Service
Government party: Timothy Sharp, State Solicitor for Western Australia
Grantee party: Anthony Ellis, Legal Director, Mineralogy Pty Ltd
Legislation: Aboriginal Heritage Act 1972 (WA) s 7
Mining Act 1978 (WA) ss 20, 63
Native Title Act 1993 (Cth) ss 29, 31, 32, 44H, 148(b), 237
Cases:Andrews v Northern Territory (2002) 170 FLR 138
Champion v Western Australia (2005) 190 FLR 362
Cheinmora v Striker Resources NL (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Green/Astro Mining NL/Northern Territory [2002] NNTTA 250, (12 December 2002) Member Sosso
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576
Little v Western Australia [2001] FCA 1706
Lockyer/Western Australia/Adelaide Prospecting Pty Ltd [2002] NNTTA 33 (27 March 2002) Deputy President Sumner
Monadee v Western Australia (2003) 174 FLR 381
Rosas v Northern Territory (2002) 169 FLR 330
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Ward v Northern Territory (2002) 169 FLR 303
Ward v Western Australia (1996) 69 FCR 264
REASONS FOR DETERMINATION
[1] On 30 July 2003, the Department of Mineral and Petroleum Resources on behalf of the State of Western Australia (“the government party”) gave notice under section 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Exploration Licence (EL) E08/1331 (the proposed tenement) to Mineralogy Pty Ltd (“the grantee party”) and included in the notice a statement that it considered that the grant attracted the expedited procedure. The notice described the proposed tenement as being 51 kilometres north-westerly of Pannawonica, in the Shire of Roebourne and having an area of 60.63 square kilometres.
[2] On 28 October 2003, Messrs Mark Lockyer, Neil Finlay and Red Alexander, Mrs Jean Lockyer and Ms Gloria Lockyer, on behalf of Kuruma Marthudunera (“the native title party”), lodged with the Tribunal, pursuant to subsection 32(3), an expedited procedure objection application.
The Kuruma Marthudunera (combined) native title determination application (WAD6090/98) was filed with the Federal Court on 26 March 1999 and entered on the Register of Native Title Claims on 24 June 1999.
On 18 November 2003 Deputy President Sumner considered the expedited procedure objection application lodged by the native title party and accepted it pursuant to section 77.
Deputy President Sumner initially made Directions for the determination of the expedited procedure objection on 18 November 2003. However, due to the bulk adjournment of various expedited procedure objection applications in Western Australia, this matter was not returned to the ordinary objection process until December 2005. Following a request from the parties to proceed to inquiry on 18 January 2006, fresh Directions were made by Deputy President Sumner, culminating in the present proceedings.
On 2 August 2006 Deputy President Sumner, as delegate of the President, appointed me as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.
In compliance with the Directions made by Deputy President Sumner, each of the parties has provided the Tribunal with written contentions as follows:
Government Party Contentions
Statement of contentions of the government party (SCGP) dated 13 April 2006
Native Title Party Contentions
Statement of contentions of objectors (SCNTP) filed 4 May 2006
Grantee Party Contentions
Statement of contentions of the grantee party - Mineralogy Pty Limited (SCM) dated 18 August 2006.
In addition to the written contentions, both the native title party and the grantee party have filed affidavits in support of their respective positions. The grantee party filed affidavits of Vimal Kumar Sharma, General Manager Western Australia and Anthony James Ellis, an employed solicitor. The native title party filed affidavits from Sunil Sivarajah, a legal officer with Pilbara Native Title Services (“PNTS”), Michael Ryan Senior Legal Officer of PNTS, Neil Ricky Finlay an elder and lawman of the Kuruma Marthudunera People and Mr Rory Bobby a member of the Kuruma Marthudunera claim group. Mr Finlay’s affidavit is set out in full hereafter. Each of the parties also filed with the Tribunal other materials which have been of assistance in reaching a determination. In particular, the government party filed tenure and Department of Indigenous Affairs site information.
Material filed by the government party indicates that the subject land and waters fall almost entirely (99.9%) within Pastoral Lease 3114/1027 (the lessee being Fourseasons Corporation Pty Ltd). Of the 6,063 hectares in question, the pastoral lease encompasses 6,057 ha. The remaining 5.80 hectares falls within a reserve set aside for natural gas pipeline purposes.
The subject area is intersected by one unsealed minor road (Mardie Road), seven tracks, three minor non-perennial watercourses, one major non-perennial watercourse (the Fortescue River), one spring/soak (Stewart Pool) and five well/bores with windmills.
The material filed by the government party suggests that there are no Aboriginal communities located within the boundaries of the proposed tenement, and no other information filed with the Tribunal contradicts that assessment.
A search of the Register of Aboriginal Sites established and maintained under the Aboriginal Heritage Act 1972 (WA) discloses 12 sites. Four of the sites are on the Interim Register, four are located on the Permanent Register and four are stored data. All but two of the sites are described as “Artefacts/Scatter”, with the exception of the Fortescue River Crossing and the Wiruwandi Plain. In the latter case the Wiruwandi Plain is described as a mythological site, and is included on the permanent register. Access to all of the sites is described as “open” with none of the sites having access described as either closed or vulnerable.
The native title party filed affidavits of Neil Ricky Finlay and Rory Bobby. Mr Finlay is one of the five persons (the others being Mark Lockyer, Red Alexander, Jean Lockyer and Gloria Lockyer) who collectively comprise the Applicant for the Kuruma Marthudunera combined native title determination application. Mr Bobby is described as a member of the claim group, but no other information about Mr Bobby has been provided. Mr Bobby’s affidavit is a hand written document which is both very short and which contains very little specific information that assists the Tribunal in carrying out a predictive risk assessment. In comparison, Mr Finlay’s affidavit is very detailed and contains much material that has assisted the Tribunal. Mr Finlay’s affidavit is set out in full below:
“I can speak for this country
1. I am an elder and lawman of the Kuruma Marthudunera people and a member of the Kuruma Marthudunera native title claim (WAG 6090/98)
2. I have seen a map, which shows the location of the proposed exploration licence E0801331 (“Licence”). I can speak for that country.
3. I am familiar with the area of Mardie Station, and Balmoral Outcamp where the proposed tenement will be located. I was born at Red Hill station and grew up at Yalleen station. I would visit Mardie station with my family every year during Easter and Christmas holidays. Mardie station families were Marthudunera. My family is Kuruma but the Marthudunera and Kuruma people were joined together in the dreamtime. There is a story about that. When the land was still soft and the rules were still being made, the Kuruma and Marthudunera people arranged to fight. The Kuruma wanted a hill that was in Marthudunera country, on the ocean side of where Mardie Station is now. The Kuruma people won that fight and took the hill across the country to where it is now, near Robe River. The name of that hill, Palabuni (Pannawonica Hill) is a Marthudunera name yet it is in the Kuruma country. You can still see the tract across the country where the Hill went. Since then, the Kuruma and Marthudunera have been together. It is because of this relationship between Kuruma and Marthudunera people that I am allowed to speak for some places in Marthudunera country today..
4. The old Marthudunera people would take me with them to visit places around Mardie station and it is those places that I can still go to now and that I still know about today.
5. There is a story about Wiruwantdi Plain, Mt Nicholson and Chuerdoo Pool. Those places are linked together by that Story. At Chuerdoo Pool there is a permanent soak where the water comes up from the bed of the Fortescue River, even when it is very dry. This is in the area of the proposed licence.
6. I am allowed to use water in this soak for drinking and fishing when I go hunting, camping or visiting the Mardie station area. Animals that I hunt, like kangaroo and bush turkey, also use it for drinking. Our old people camped there too.
7. In traditional law, our rights to land include rights to water. Apart from using the water when hunting, fishing, camping or visiting, some water places might be dangerous and it is my responsibility to protect these places and to protect other people from them. There might be spirits there that can hurt people. If people get hurt, then the trouble comes back to my people and me.
I understand what Mineralogy is proposing
8. I have been told by my lawyers and I believe that Mineralogy is seeking an exploration licence. I am aware of what this entitles them to do by law.
Mineralogy refuses to properly meet and consult in the proper way with the KM working group
9. Mineralogy have not met with the KM working group since 2004.
10. My lawyers inform me and I believe that they have written to Mineralogy many times explaining the working group meeting process to them and inviting them to such meetings.
11. Most recently my lawyers inform me and I believe that they sent formal invitations to Mineralogy on 27 January 2006 and 9 March 2006. My lawyers inform me and I believe that Mineralogy did not respond to these invitation letters until on or about 30 June 2006.
12. My lawyers also inform me and I believe that Mineralogy has not proactively contacted them to inquire about working group dates or schedules since 2005.
13. The KM claim group has a process where we could talk to Mineralogy about ways to minimize the impact of the grant of this licence. We call this process working group meetings. I understand that many native title clam groups in the Pilbara use this process. We conduct native title business with many companies and government departments in working group meetings. This is the way we do our business.
14. The KM people authorized members of our community to attend working group meetings and deal with the day-to-day native title matters on their behalf. These people are called working group members. Working group members have a responsibility to communicate information received and decisions made at meetings to the community. I am a working group member.
15. PNTS organize meetings of the working group and bring native title related matters to the group for decision. Although the working group has authority to make decisions on most matters more important decisions have to be made by a KM community meeting. All KM people and not just working group members are invited to attend community meetings. Individual applicants, individual working group members or individual KM people cannot make decisions on behalf of the KM people.
16. Going through the working group means that decisions that affect the community are made in the proper Aboriginal way. It is not right in Aboriginal way for any person to speak or make decisions on their own for the group. Under our traditional laws and customs, knowledge about different matters is sometimes held by different people. Therefore it is necessary for decisions to be made by the group.
17. As far as consultations about matters such as minimizing the effect on native title rights and interests, the proper and appropriate way to do this would be to meet with the working group to discuss the issues and concerns and to try to have access to advice from its lawyers and other representatives and to discuss matters and formulate positions amongst themselves in the course of these consultations. It is important to have face to face meetings and consultations with mining companies.
A past example of a survey in 2001 is of concern to us: it indicates that Mineralogy could cause damage if given this licence in this way
18. Mineralogy has been reluctant to meet with the KM working group to talk about other issues in the past. Following an incident in February 2000 we told our then solicitors, the Aboriginal legal Service (ALS), that we wanted to have a meeting with Mineralogy. Mineralogy drilling contractors were drilling on one of their tenements and did not tell the KM people about it. I was very concerned that the drillers would damage sites in the area. Our ALS solicitor at the time, Jane Fricke, told us and I believe that she asked Clive Palmer, the head of Mineralogy, whether he could stop the drilling until elders had looked at the area. Jane Fricke told me and I believe that she tried to arrange a meeting between KM and Mineralogy on the drilling sites. We did not meet with Mineralogy in 2000. Jane Fricke told me and I believe that Mineralogy cancelled meetings she had organized to talk about this issue.
19. My solicitors informed me that Mineralogy maintained that as part of their consultation with KM they conducted an Aboriginal heritage Survey over their tenements. I knew about this survey and I was very concerned about it at the time. Mineralogy did not go through the Pilbara Native Title Service (“PNTS”), as companies wanting to do surveys normally do. They employed their own people instead. I believe Mineralogy say that I participated in this heritage survey in June 2001. I did not participate in the survey as an Aboriginal Consultant. I did not attend the survey as a representative of the KM native title group. I went along as an individual because I knew that the people running the survey could not speak for country, I was concerned that these people would talk about the country when they had no right to do so.
20. Sometime in June 2001 I went out to the truck stop where those going on the survey were meeting. Wilfred Hicks was at the truck stop. I believe that Wilfred organized the survey. Wilfred Hicks is not Kuruma or Marduthunera and not part of our claim group.
21. I was taken with others to Devil Creek at Mardie Station. When we stopped there I had an argument with Wilfred Hicks about whose country we were on. The others who were with me, Gordon Yuline and Charlie Coppin, who are not KM people, told Wilfred and his brother that this was not their country. Neither Wilfred nor his brother replied.
22. There was a helicopter and pilot at Devil Creek. I presumed that Mineralogy had organized for a helicopter to take us on the heritage survey. I believed that Wilfred Hicks had already flown around the survey area. I wanted Wilfred to show me the places he had been on the survey so I hopped in the helicopter with Wilfred Hicks and others. The helicopter flew over the area where Mineralogy planned to mine. I did not tell Wilfred anything about any of the sites around where we flew. No one asked me anything about whether there were any sites in the area we had flown over. No one asked me if it was alright to mine there.
23. When we landed Wilfred said that Rory O’Connor was doing the heritage survey. I did not see Rory O’Connor for the time I was out on the country that day.
24. When we landed Wilfred gave us $300 each for going on the survey.
25. I did not give Wilfred any information about sites in the area. I was concerned that Wilfred was doing heritage surveys in the area and I wanted to see where the proposed project would go. I did not give Wilfred any information about sites because it is not his country.
26. I did not see the heritage survey report. I expected to be able to provide my comments on the survey and survey report to PNTS and anthropologists engaged by the PNTS for the KM claim group. I did not give any comments about the survey to the representatives of Mineralogy or the consultants they had engaged.
27. The proper method of consultation, which is done by other large mining companies, is to meet with the working group and if necessary the whole claim group to outline their plans. If heritage surveys are to be done, then survey teams are chosen by the working group or community group and surveys are done with consultants engaged by or on behalf of the claim group and who are acceptable to them. Usually the survey team walks around the area with the consultant to view it more closely rather than just flies over it. The survey reports are discussed and approved by working group or community meetings before being submitted to the mining companies. It is vital for the group to check and be satisfied about the reports and to decide about what is needed to minimize damage or whether sites are so important that they cannot be altered in any way.
28. It is usually not preferable to have surveys with members of other groups there, as we would not usually wish to discuss any sites or concerns in the presence of other groups. If this is the adequacy of a previous survey then it raises concerns about the way Mineralogy will work with us in the future.
29. Mineralogy applied for miscellaneous licences 08/22 and 08/23 over a similar area in the past. I have been informed by my lawyers and believe that the matter went to a hearing before the Independent person under s 24MD(6B) of the Native Title Act. The KM objected because there had been no proper consultation with us. I am informed by my lawyers and believe that the Independent Person upheld the objection and agreed that there had not been proper consultation.
30. Even since that decision, Mineralogy have not consulted with us. It makes me really worried, because now Mineralogy are applying for this exploration licence over some of the same area and still not consulting with us. A map attached to this affidavit shows where the exploration licence is in relation to the miscellaneous licence applications (“NRF1”)
Mineralogy refused to sign a heritage agreement
31. I have been informed by my lawyers and believe that the State of Western Australia and Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation have agreed a form of Standard Heritage Agreement which the KM people have also agreed to accept. Under this agreement, the State will not notify an exploration tenement under the expedited procedure unless the party has signed such an agreement.
Mineralogy refused to sign a standard heritage agreement with KM. In a letter dated 7 July 2006 Anthony Ellis, Legal Director, Mineralogy states:
‘Mineralogy’s board of directors has therefore decided that they are unable at this time to enter into a Standard Heritage Agreement with the Kurrama Marthudunera Native Title Claimant Group’.
I believe Mr Ellis is referring to the purported survey (relating to another tenement application) mentioned in paragraph 21-27 when he explains in his letter dated 7 July 2006:
‘Also, the Claim Group has previously disputed the validity of Heritage Surveys carried out by the Mineralogy in the Cape Preston area. The validity of Mineralogy’s previous surveys would need to be accepted by the Claim Group before any Heritage Agreement would be considered acceptable, at least in respect of the Cape Preston area.’
32.The Standard Heritage Agreement is the basis for a relationship of trust between mining company and KM. Any reluctance to sign such an agreement makes me worried about the impact their activities will have on our land, waters and activities. It certainly indicates that they will not consult us about avoiding interference or damage to sites in the area.
There are sites of significance within and in the vicinity of the proposed licenses that are not registered on the Register of Aboriginal Sites or subject of an ethnographic heritage survey. There are important sites inside the proposed licence area and also surrounding this area. And there are birthplaces and burial places of significance to the Native Title Party on and near the tenement.
There could be many more important sites in the tenement area that I am not personally aware of but where the knowledge is held by other people. In addition, I am not sure exactly where the boundaries of the tenement are and cannot judge by a map as to what may be in the area. We need to travel to the area and go through it to recognise and identify the sites inside the tenement.
33.Another company called Teteni Pty Limited has signed a Standard Heritage Agreement in respect of E08/1607. My lawyer has told me and I believe that this company has a relationship with Mineralogy. I do not understand why Mineralogy refuses to make a heritage agreement with us.
Mineralogy has been treating us bad for a long time, the Tribunal even made a decision back in 1997 when Mineralogy refused to make an agreement with us. I attach a copy of that decision (“NRF2”), as well as a decision of the Information Commissioner (“NRF3”). In that decision the Commissioner notes Mineralogy’s view that Aboriginal people may try to extort money from the company. This is on page 5 of the decision. That makes me wild, because Mineralogy tries to do things on our country all the time without speaking to the right people in the right way. We are worried about what will happen to the country if this licence is granted.
34.We old people need to look after all important places in our country. This means, we are the boss of this country and the Mining company must come and see us with regard to anything on this country.
Likely to interfere directly with the carrying on of the community and social activities of the KM people
35.Mineralogy has refused to sign a Standard Heritage Agreement and have previously disregarded KM procedures in organizing surveys. Thinking about them entering on our land in such a disrespectful manner makes all KM people very distressed.
36.KM regularly conduct a range of important communal and social activities in and about the tenement area such as hunting for kangaroos, goannas, bush turkeys and emus; we camp within this are; visit country and collect traditional foods; we use and enjoy this area; we collect bush medicine and wild tobacco and visit sites of cultural significance; many KM people regularly pass through and camp with their children in the course of passing cultural information and imparting knowledge; we also visit and pass through and camp on the way to other important sites such as the Balmoral area and other registered/unregistered sites. Exploration works in the area will interfere with these activities as we would not want to visit and camp where machinery and works are being carried out. This would be dangerous, especially for our children.
This area is important for our community because it is a place we know well and feel comfortable visiting. There is a lot of mining in our country and that makes the places where we can visit all the more important for sustaining us physically and spiritually.
37.Any exploration activity will scare away kangaroos, goannas, turkeys and other wildlife. It may also cause damage to the flora and vegetation of the area and this will in turn affect our community activities like hunting and gathering
38.I know about the flora in this area well. I know that there are many plant resources available in and around the tenement area include the following: Bunaangu (Bloodwood), Wirrungka (River red gum), Bajila (Caper), Winjarra (Rock Fig), Ngarlgu (Bush onion), Minyjirlu (Bush Tomato), Jaaburra (Flannel bush), Barrayin (Honey hakea or corkwood), Marlpa (Paperbark), Minjarra (Vicks bush), Marnthaduna (creeping vine), Marruwa (Snakewood), Thurlawirdinybirding (Sturts Desert Pea), Wardaba, Thurlawardga (Ruby Salt bush), Baabadiny, Garlun (Bullrush), Garruwa (Curara), Bungaa, Jajuwayi, Nyiyarri, Maygan, MJarduwarngu, Kanyji (Kanji bush), Maala, Bardirri (Camel bush), Ngarlawany (Bullrush), and Marliya (Bush honey). The tenement area is a good place to collect these plants, and one of the reasons this area is important to our people. White people have their supermarkets and pharmacies; we Kuruma Marthudunera people have the country covered by this application.
39.We don’t have any understanding or relationship with Mineralogy, so KM people will not want to go to this area, knowing that Mineralogy have pushed their way onto our country without agreement. We will feel nervous to hunt in this area and we can’t take our guns to go hunting because we won’t even know what they are up to. We would not want to bring our children onto this country when this mining company has entered there in such a way. It is very disrespectful to our culture. We would not want to expose them to this. It would upset everyone.
40.This area is very accessible for KM people. There is water in the area which makes it very easy for KM people to go there frequently. And because there are important sites throughout the area and in adjacent areas, KM people do frequent this area regularly.
Likely to interfere directly with areas and sites of particular significance
41.As mentioned before, due to Mineralogy’s reluctance to meet with KM and also refuse to sign a standard document that sets out the proper procedures, we are concerned about the exploration activities causing significant damage to sites. A(s) well as the registered sites, there are numerous unregistered sites.
42.The proposed tenement area is very important to KM people. As mentioned before this place is very important to KM people. It has many important sites and is also used as a thoroughfare to access other important sites. We regularly hunt and camp in this area and we take our children so that we can teach them culture. There are burial grounds and birth places in and around the proposed tenement area. Burial grounds and birth places are amongst the most significant places you can find on our country, and that is why we are very worried about this application.
Major Disturbance to Land or Water
43.I am aware of the activities, which Mineralogy could do on the exploration licence area under the Mining Act if they are granted the exploration licence. This could be a large amount of earth removal and drilling.
44.Mining Companies must ask our permission before doing anything on our country, even to step there. We have a lot of very special places, from our old-time people and from the early days. We are worried that if strangers arrive in our country uninvited or without permission, they might get sick if they touch any sacred site. That’s why we are frightened. We need to tell the mining company because they have got their own way. We know that mining companies don’t follow our Law. That’s why they have to sit and meet with us. Mineralogy has not met with nor have they agreed to sign an agreement outlining proper disturbance procedures.
45.It’s different if someone from another claim group came to our country, they don’t mess us around because they understand our Law.
46.If the mining company abuses the living water or land or act in an improper way they may not even know it but we will feel no good. We feel very sad, like someone close to us has died. It’s like the same thing for country. We feel sad for our country. There are many things they may do without even knowing that are wrong.
47.By our law, the Mining company cannot help themselves to our country. They have got to ask us first. If we say, ‘No’, they must leave our country, but if we say, ‘Yes’, they can stay and talk with us. If they make money out of my country, they can maybe give my community a little bit because they are taking something from our country. If we go digging in mining company’s country, they will put ‘the police’ onto us. We have no rights then.
48.In these circumstances I urge that the licence not be granted without the KM claim group being given the opportunity to have a proper consultation.”
Preliminary Legal Points
Before assessing the material adduced against the criteria contained in section 237, it is necessary to deal with some preliminary legal contentions of the parties.
Location of sites
The native title party contended (SCNTP at para 10) that a native title party lodging an expedited procedure objection application is not required to give the exact location of an area or site of significance “but merely sufficient evidence to establish that there is a real risk that it will be interfered with. To require further information would be to insist on a burden of proof that goes beyond what is required by law.”
In one sense the contention of the native title party is correct. There is no evidentiary or other legal obligation on a native title party to give an exact location of an area or site said to be of particular significance within the meaning of section 237(b). However, as a matter of common sense, a native title party which fails to properly identify with sufficient clarity the location of an area or site, runs the risk that the Tribunal will draw inferences adverse to that party. The Tribunal is required to undertake a predictive assessment of the likelihood that the proposed future act will, if granted, result in the matters outlined in section 237. None of the parties in an expedited procedure inquiry bear an onus or burden of proof. The Tribunal will make an assessment based on the evidence submitted. If a native title party fails to adduce evidence that sufficiently identifies the location of an area or site, then the Tribunal will make a risk assessment on the basis of the scant material before it. The native title party’s contention therefore starts from a correct premise but reaches a wrong conclusion. The native title party can adduce whatever detail of information about areas or sites that it chooses. However, if it fails to produce material in regard to location, that facilitates the Tribunal making a risk assessment that the grant of the future act is likely to have the ramifications outlined in section 237(b), then that is the consequence of a conscious decision by the native title party not to provide information that would advance its contentions, not of a burden of proof imposed on any of the parties.
A Member conducting an expedited procedure objection inquiry will make a predictive assessment on the strength of the material before the Tribunal. A determination is not made on the basis of bald assertions without substantiating material. This is particularly important in the context of section 237(b). If a native title party suggests that there are areas or sites of particular significance, it should identify those sites, locate them, outline the significance of them and adduce evidence from a member of the claim group with the authority to speak on behalf of them – see generally Little v Western Australia [2001] FCA 1706 at [77] – [79] per Nicholson J. The very best evidence in such matters comes from members of the claim group who have the relevant authority and knowledge of the particular area or site.
It is not sufficient for a native title party in written contentions to simply assert that an area is “site rich” or that an area or site is of “particular significance”. Those are issues that can only be ascertained from the production of evidence. The best evidence in any native title proceeding, including expedited procedure objection inquiries, is affidavit material from members of the claim group, but it may also be in the form of extracts from registers, previous findings of fact from commissions of inquiry, court proceedings or Tribunal determinations. Accordingly, detailed contentions prepared by legal practitioners or affidavits from “experts” can never replace the strength of direct evidence from the persons who assert native title over the relevant land and waters.
Identification of a “site rich” area
The native title party asserts that the proposed tenement is in an area that is “site rich” (SCNTP at para 15). It is open, of course, for the native title party to make such an assertion, but the question of whether an area is site rich is a question of fact. Identification of whether an area is site rich can only occur if there is evidence of sites and areas registered under the relevant aboriginal heritage legislation of a State or Territory and/or evidence from persons asserting native title identifying such sites and explaining their significance. It would be incorrect to assume that simply because there are numerous sites registered on a heritage register that the Tribunal will make a finding that an area is “site rich”. That term is not recognised in the Act, and has been used by various Members as a short hand description of an area which is demonstrably rich in sites of particular significance to native title claimants and which sites cumulatively illustrate the overall spiritual importance of the relevant land and waters. Accordingly whether there are numerous sites registered or no sites registered is not of itself determinative of whether an area is “site rich”. Obviously an area over which numerous sites are registered puts the Tribunal on notice of the potential significance of the area, but it is only one indication – see Ward v Northern Territory (2002) 169 FLR 303 at 326-327.
In this matter the native title party points the Tribunal to the fact that the proposed tenement is surrounded on all sides by sites registered with the Department of Indigenous Affairs. That is an important factor, but it is only the starting point. It would be an unusual circumstance for the Tribunal to make a finding that an area is “site rich” without direct evidence from a person or persons from the claim group who can demonstrate that they are authorised to speak on behalf of a site or area, and that they have the requisite knowledge to explain the spiritual significance of an area or site to the claim group, or to a family or other sub-group within the wider claim group.
To sum up, the term “site rich” is not a term recognised by the Act, and has developed as a useful tool for Tribunal Members to classify areas of land and waters that are manifestly of great spiritual significance to native title claimants or native title holders. The Tribunal will only make such a finding if there is evidence to that effect. Contentions by experts that an area is site rich not only are not determinative, but can also be unhelpful. The Tribunal will look beyond such assertions, and concentrate on direct evidence from the indigenous spokespeople and from independent and objective sources of information, particularly heritage registers.
Spiritual dimension of community or social activities
The native title party contends (SCNTP at para 19) that the words of section 237(a) “include all sorts of spiritual and the like activities that might be directly interfered with or without any physical interference”. In support of that proposition the native title party relies on the following observations of Carr J in Ward v Western Australia (1996) 136 ALR 557 at 572: “The very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds ten kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed at the thought of such activities.”
In Silver v Northern Territory (2002) 169 FLR 1 at 22-26 I outlined at considerable length the legislative history of paragraph (a), particularly during the 1997 and 1998 parliamentary debates. I concluded with this finding (at 27):
“There is a difference in the wording of par (a) both before and since the 1998 amendments. The pre-1998 amendment paragraph did not have a likelihood requirement and, more importantly, was focused on the wider concept of community life. Community life can connote, as Carr J held, all types of spiritual matters and activities. The mere thought of exploration activity could cause upset, and thus interference with that community life. However, it would seem that the post-1998 wording of par (a) is focused on the active manifestation of that community life in the form of community and social activities. While it would be artificial, in my opinion, to give an unduly restrictive interpretation to par (a) to inevitably exclude any form of spiritual dimension, it would be just as clearly wrong to read into the new s 237(a) the type of conclusion reached by Carr J in Ward.”
That approach to the interpretation of paragraph (a) was also adopted by Deputy President Sumner in Walley v Western Australia (2002) 169 FLR 437 at 442-449. Of relevance to this matter, Deputy President Sumner said (at 448):
“There can be no doubt that community or social activities which arise out of a community’s spiritual beliefs such as the conduct of ceremonies, initiations, teaching children about the spiritual aspects of Aboriginal law, traditions, customs or beliefs which are part of or related to a claimant’s native title and connection to law are covered by s 237(a). In other religious (spiritual) contexts, people go to church to worship because of their spiritual beliefs. This no doubt constitutes a community or social activity and could clearly be interfered with in a physical way.
On the other hand I do not think that emotional or spiritual distress of some individuals which does not reflect in the manner in which community or social activities are carried out is now covered by s 237(a). There must be more than people being upset.”
The contention of the native title party that the approach of Carr J in Ward remains applicable, notwithstanding the 1998 amendments (para 19) is not sustainable. The Tribunal in making a predictive assessment on matters relevant to paragraph (a), starts with an examination of the material submitted which establishes that members of the claim group engage in social and community activities on, or near to, the area of a proposed tenement. The word “activities” refers to the physical manifestation of claimed native title rights and interests by members of the claim group. In short there must be:
(a) primary evidence from a member or members of the claim group which outlines the nature, frequency and importance of claimed social and community activities;
(b) linkage of those activities to the area of the proposed tenement;
(c) evidence that the activities are a manifestation of claimed native title rights and interests. In short, the activities must be rooted in the traditional laws and customs of the claim group. Activities per se are not the focus of a paragraph (a) predictive assessment – Ward v Northern Territory (2002) 169 FLR 303 at 321;
(d) evidence of the physical manifestations of claim rights and interests. Those physical activities may, in turn, have a spiritual dimension. In fact the carrying on of the relevant activities may be an integral part of the laws and customs of the claim group. Evidence can be led which highlights the spiritual significance of physical activities which, looked at in isolation, may appear to be of fleeting duration, localized and conducted irregularly. In short, evidence of the importance of the physical acts to the spiritual life and meaning of a claim group may be extremely important and focus on whether the doing of the future act will be likely to have significant or only trivial interference with those activities. However the key word in paragraph (a) is “activities”, as distinct from “life”. “Life” has both physical and spiritual dimensions, whereas “activities” is a term linked wholly to physical activity. When making a predictive assessment the likelihood of direct interference with the carrying on of such activities, and the spiritual dimension of those activities may be key factor.
Protective Effect of the Aboriginal Heritage Act
The government party (SCGP at para 21) points out that the Tribunal is bound by the decision of Nicholson J in Little v Western Australia, that given the protective effect of the sections of the Aboriginal Heritage Act the chance of interference is remote. However, the bald statement by the government party requires comment as it could be interpreted as implying that the Tribunal is relieved of its task of carrying out a predictive assessment and could abdicate its responsibility by relying on the terms of the Aboriginal Heritage Act.
The Aboriginal Heritage Act has been the subject of extensive analysis and discussion by the Tribunal, most recently by Deputy President Sumner in Champion v Western Australia (2005) 190 FLR 362 at 385-386. I adopt, for the purposes of this determination, Deputy President Sumner’s statement of the law in this regard in both Champion and Walley (at 465).
In all Australian jurisdictions where the Tribunal is charged with making a section 237 predictive assessment, one of the key matters that has to be factored in is the nature of the legislative regime governing the doing of the future act. When assessing the likelihood of interference or disturbance a key, although not the sole yardstick, is an analysis of the legal regime governing the exercise of the grantee party’s rights, and the extent to which that regime may minimize the risk of relevant interference or disturbance – Silver at 16.
The legal protections prescribed by the Aboriginal Heritage Act significantly militate the risk of areas or sites of particular significance being interfered with by the grant of a proposed tenement. There are circumstances however where, despite the protective operation of the legislation, the Tribunal will be presented with evidence that there is a likelihood of interference – see e.g. Young v Western Australia (2001) 164 FLR 1. The Tribunal would be engaging in a serious error if it in any way assumed that it could substantially relieve itself of undertaking a predictive assessment on the basis that the legislative regime of a particular jurisdiction contained impressive protections and rendered the risk of interference or disturbance unlikely. In the context of the Northern Territory regime governing areas and sites I said in Green/Astro Mining NL/Northern Territory [2002] NNTTA 250 (at [74]):
“The cumulative effect of these (and other) provisions is to put in place a comprehensive and well integrated regime designed to ensure that the risk of interference with areas or sites of particular significance is minimized. Of course, the operation of this regime does not inexorably lead to the conclusion in every inquiry that there is not a real risk or chance of interference within the meaning of section 237(b). Nonetheless, in making an assessment of the likelihood of interference, the fact that the Northern Territory has put in place a series of provisions designed to address and minimize the risk of such interference, is a relevant and very important consideration.”
So, while the operation of the Aboriginal Heritage Act may, in the normal course, render the risk or likelihood of the grant of a future act resulting in interference to an area or site of particular significance being characterized as “remote”, it does not obviate the need for the Tribunal to undertake a predictive assessment. In addition, while the risk or likelihood of interference may, prior to the production of evidence by the native title party, be remote, it does not mean that it will be found to be unlikely once the Tribunal has assessed all material produced by the parties. For example, in the case of areas that are categorized as “site rich”, or in instances where there is evidence of a grantee party operating in a certain manner or when an area of particular significance comprises a large proportion of a proposed tenement, then irrespective of the protective nature of the Aboriginal Heritage Act, the Tribunal may find it likely that interference will occur. To sum up, the starting point in Western Australia is that, prima facie, the protective operation of the Aboriginal Heritage Act will render it unlikely that the grant of a proposed tenement will result in interference to areas or sites of particular significance. If evidence is adduced about the special spiritual nature of an area, or of the intentions or track record of a grantee party or of another other material relevant to the making of a predictive assessment, the Tribunal will make a predictive assessment which weighs the protective nature of the legislation against the other material produced. In every case, the Tribunal will be guided by the material before it. When the material adduced by a native title party is scant, then the protective nature of the legislation will be of key importance, however beyond that proposition it is not sensible to speculate.
Legal Principles
For the purposes of this inquiry, I adopt the legal principles set out by Deputy President Sumner in Walley v Western Australia (2002) 169 FLR 437 at 439 – 449.
The key statutory provision in any expedited procedure objection inquiry is section 237 of the Act, which, for ease of reference, is set out below:
“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 any rights whose exercise is likely to involve major disturbance to any land or waters concerned.”
Section 237(a) – Interference with the carrying on of community or social activities
The primary evidence adduced by the native title party on the carrying on of community and social activities on and around the area of the proposed tenement is contained in the affidavit of Mr Finlay set out earlier. Mr Bobby deposes (at para 3) that the subject area is “important to all our people for hunting, fishing, camping and traveling through”, but provides no details of the nature, frequency or location of those activities.
Mr Finlay deposes (at para 6) that he goes hunting, camping and visiting the Mardie Station area, using the Chuerdoo Pool for water while hunting for kangaroo and bush turkey. Further he also deposed (at para 36) that the Kuruma Marthudunera People conduct communal and social activities in and about the subject area, such as hunting for kangaroos, bush turkeys, goannas and emus, camping, collecting traditional foods, bush medicine and wild tobacco, visiting sites of cultural significance and passing through the area en route to other important sites.
Mr Finlay deposes (at para 38) that there are many plant resources available in and around the subject area, and provides an extensive list of flora which he knows of and which are collected and used by members of the claim group.
Concern is expressed (at para 39) that members of the claim group will feel nervous hunting in the subject area if exploration activities take place and “we can’t take our guns to go hunting because we won’t even know what they are up to.” This concern is expressed in the context of the statement (at para 40) that members of the claim group “frequent this area regularly” because it is accessible and “there are important sites throughout the area and in adjacent areas.”
The native title party in its statement of contentions, sum up the relevant parts of Mr Finlay’s affidavit, but go on to submit (SCNTP at para 23) that the proposed tenement area is located close to nearby towns, is accessible by road to members of the claim group and is located in close proximity to Balmoral Outstation and other registered sites of significance to the claim group.
The government party points out (SCGP at para 4) that there are no Aboriginal communities situated on, or in the vicinity of, the proposed tenement. Further, in relation to pastoral land subsection 20(5) of the Mining Act 1978 (WA) provides that unless the written consent of the occupier is obtained or unless a warden of mines by order otherwise directs, the holder of a mining tenement is not entitled to prospect, fossick upon, explore, mine on or under or otherwise interfere with Crown land that is:
“(a) for the time being under crop, or which is situated within 100 metres thereof;
(b) used as or situated within 100 metres of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(c) situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;
(d) the site of or situated within 100 metres of any cemetery or burial ground;
(e) land the subject of a pastoral lease within the meaning of the Land Administration Act 1997 which is the site of, or situated within 400 metres of the outer edge of, any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of that pastoral lease.”
I am not convinced that the operation of subsection (5) is of particular assistance in this context. In particular I refer to the following observations on this subsection by Deputy President Sumner in Walley v Western Australia (at 454-455):
“The section is obviously not designed to protect Aboriginal interests. Where a pastoral lessee is an occupier of the land, and the native title party is not, the pastoral lessee could consent to activities which are otherwise prohibited without consultation with or consent from the native title party. Even in circumstances where the native title party is an occupier, as it may be on an Aboriginal reserve, the warden could permit the otherwise prohibited exploration or interference except within 100 metres of land in actual occupation and on which a home or other substantial building is erected.”
Nonetheless, even though the government party has not made extensive submissions about the regulatory regime in force in Western Australia governing exploration activities, there is a very useful summary in Walley v Western Australia at pages 449 – 455. Deputy President Sumner made specific reference to the conditions that were to be imposed by the government party on the grant of the exploration licence (453-454). In this matter, similar conditions are proposed, although it would appear that the conditions proposed in the current matter are even more stringent than those considered in Walley. For example, condition 2 requires backfilling and rehabilitation no later than 6 months after excavation unless otherwise approved. Most of the other additional requirements relate to specific precautions required because of the existence of a gas pipeline. Nonetheless Deputy President Sumner’s conclusion about standard conditions 1-4 is applicable to this inquiry. He said (at 454): “The standard conditions 1-4 and the deemed conditions in s 63 are clearly relevant and may depending on the circumstances assist in reducing the likelihood of interference and disturbance.” Without duplicating the summary outlined in Walley by Deputy President Sumner, I am satisfied that there exists a comprehensive and ordered regulatory regime in Western Australia aimed at minimizing the likelihood of exploration activities impacting on the livelihood and related activities of third parties, including, necessarily, the community and social activities of native title claimants.
Almost all of the subject area falls within a pastoral lease. Although there is no direct evidence on the point, it appears that the property in question continues to be used for pastoral purposes. Further, some of the subject land and waters has previously been the subject of exploration permits: E 08/643 and E 08/1056. The former was granted in April 1993 and surrendered in April 1996 and encroached the subject area by 178.26 hectares. The latter was pegged in October 1997 but withdrawn in May 1998 prior to grant, and overlapped the subject area by 742.52 hectares. More particularly, the tenement area is currently also affected by one live mining tenement – M 08/130, which was granted to Mineralogy Pty Ltd in September 1992 and encroaches the subject area by 236.9 hectares.
The government party (SCGP at para 4) also drew the Tribunal’s attention to section 63 of the Mining Act 1978 which requires the holder of a mining tenement to fulfill certain conditions, including reporting discoveries of minerals, making safe any holes, pits, trenches etc and preventing damage to property and livestock.
The grantee party made the following submission (SCM at para 4):
“A. The process of exploration drilling is inherently low-impact and does not require major disturbance of land, or erecting significant infrastructure.
B. Section 63 of the Mining Act 1978, every exploration licence is deemed to be granted subject to the condition that the grantee will not use ground disturbing equipment on the land the subject of the exploration licence unless the grantee has lodged, in the prescribed manner, a programme of work in respect of that use.
C. The prescribed form for lodging a programme of work requires approval of the proposed activities by the Department of Indigenous Affairs.
D. Other activities having significant effects on the land or environment also require approval from relevant government departments, for example a licence is required from the Water and Rivers Commission to establish a bore and take groundwater. Such approvals generally require consideration of the interests of native title holders.”
As previously highlighted, when undertaking a predictive risk assessment of whether the granting of a proposed future act will be likely to result in direct interference with community or social activities, there must be a real chance or risk of such interference. As French J held in Smith v Western Australia (2001) 108 FCR 442 (at 451) the likely interference “must be substantial in its impact upon community or social activities. That is to say trivial impact or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.”
His Honour went on to explain that in evaluating the concept of interference a contextual approach was required. He said (at 451):
“The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial…To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed future act.”
The evidence presented to the Tribunal regarding community and social activities carried out on the area of the proposed tenement is slight and generalised. I accept that Mr Finlay visits the subject area for traditional activities. I also have no reason to doubt Mr Finlay’s statement that other members of the claim group also access the subject land. Nonetheless, apart from the assertion by Mr Finlay that “KM people do frequent this area regularly”, there is no material on how many people visit the area, when they visit the area and whether the visits traverse all of the proposed area, or only certain specific locations (e.g. the soak). Further, Mr Finlay himself does not say how often he visits the proposed tenement area. In fact there are indications that some of the community and social activities are of a more historical than contemporary nature. For example when explaining that he hunts kangaroo and bush turkey, Mr Finlay deposes (at para 6): “Our old people camped there too.” The clear implication from that statement is that members of the claim group used to camp on the tenement area, but it is unclear if this type of activity is still carried on.
It is not clear how many members of the claim group, if any, live in close proximity to the proposed tenement area. Mr Finlay’s address is given as 19 Cameron Avenue, Onslow, a town located some distance (approximately 100 kilometres due south) away from the subject area. Mr Bobby’s address is stated to be Roebourne, which is also located some considerable distance from the subject area (approximately 100 kilometres due north).
I accept that the subject area is rich in animal and plant life and water can be accessed. I also accept that Mr Finlay and other members of the claim group visit the subject area for traditional hunting, gathering and ceremonial purposes. It is not clear, however, the frequency of the visits, the areas visited or the number of persons who visit the area either at any one time or in total over a yearly period. Consequently, the material submitted indicates that there is the potential for the grant of the proposed tenement to result in some interference with the carrying on of community and social activities by members of the claim group.
The task required of the Tribunal however, is not just to assess the likelihood of the intersection between the carrying out of exploration activities by the grantee party and the carrying on of community and social activities by the native title party, but to evaluate and contextualize the nature of that intersection. In particular, the Tribunal has recognised in numerous determinations that it will consider any other factors which impact on the carrying out of community or social activities, such that the likely impact of the proposed future act will be insubstantial. An important factor in this regard is if the land and waters in question are already being used for other purposes, such that there is, or there is the potential for, ongoing disturbance of community and social activities. Critical in this regard is whether the land is wholly or partly subject to pastoral leases – see e.g. Ward v Northern Territory (2002) 169 FLR 303 at 323. Lawful pastoral activities “prevail over any native title rights and interests and any exercise of those rights and interests” –section 44H (c).
It has not been suggested that the ongoing pastoral activities on the subject land have had any significant impact, on the carrying on of community or social activities by members of the native title party. The fact that ongoing pastoral activities have not had (or at the very least, none has been suggested) any adverse impact on the carrying out of community and social activities of the native title party, necessarily raises the question of whether the type of exploration activity permitted by the grant of the proposed tenement would be likely to have any further and more significant deleterious impacts. This conclusion is further strengthened by the absence of any evidence that previous exploration activity on the subject area has adversely impacted the community and social activities of members of the native title party.
The evidence before the Tribunal suggests that there exists a regulatory regime in Western Australia which seeks to limit the impact of exploration activities on third parties. Necessarily any regime which permits mining exploration cannot guarantee that there will not be some interference with the relevant land and waters and with the persons who use it, traverse it or access it for ceremonial or other purposes. The issue which the Tribunal has to assess is the likely degree to which proposed exploration activities will impact on the community and social activities of members of the native title party. I am satisfied from the material presented that it is likely that any exploration activity carried out by the grantee party will have a slight impact on the community and social activities of the native title party. I am not satisfied, however, that the likely interference with community and social activities by the granting of the proposed tenement would be substantial. Rather, on the evidence adduced, the extent of the interference would be likely to be insubstantial, localized, irregular, and in many cases, trivial.
Before turning to paragraph (b) of section 237, I note that there is a constant thread running through the submissions of the native title party and the affidavit of Mr Finlay. It is to the effect that in the absence of a concluded agreement reached in accordance with the negotiating procedures of the native title party (paras 13, 15 and 16 of Mr Finlay’s affidavit and para 20 SCNTP) the grant of a tenement will result in interference to the community and social activities of the claim group because of the attendant spiritual and emotional stress resulting from the exploration company entering the subject land without traditional consent being first obtained. Mr Finlay deposed, for example (para 39): “KM people will not want to go to this area, knowing that Mineralogy have pushed their way onto our country without agreement.” Insofar as this suggests that the native title party has a right of veto it is not sustainable. The issue that must be determined is whether it is likely that the grant of the future act will directly interfere with community or social activities of the native title party. There are no mandatory consultation procedures required of grantee parties by the expedited procedure provisions of the Act. Much of the material submitted by both the native title and grantee parties confused the nature of the present inquiry. There is no obligation imposed by section 237 on the grantee party to negotiate, attend meetings or otherwise manifest good faith with a native title party. The issue to be determined in an inquiry of this type is of very short compass. It is to assess if the grant of the relevant future act will be likely to have any of the consequences outlined in paragraphs (a) to (c) of section 237. While the intention of a grantee party can be of relevance, this should not to be confused with an obligation on a grantee party to negotiate in good faith with a native title party prior to the grant of a tenement. A government party asserts that a future act attracts the expedited procedure because it is allegedly of a low impact nature and a full right to negotiate is not required. Consequently the focus of an expedited procedure objection inquiry is to assess if the proposed future act will be likely interfere or cause disturbance as outlined in section 237, and not whether the parties have engaged in the “normal negotiation procedure” as prescribed by section 31.
It is also unsustainable for a native title party to contend that there will be direct interference with the community or social activities of a native title party on the basis that the members of the claim will be upset because land is being accessed by an explorer without first obtaining traditional consent. A predictive risk assessment focuses on likely physical activity and the impact of that activity on the community and social activities of a native title party. From the material submitted by the native title party, it would appear that it is not the act of exploration that will be the primary cause the upset complained of, but rather the failure to reach an antecedent agreement. It appears from the material submitted that there has been a lengthy and largely unsatisfactory relationship between the native title party and grantee parties, marked by poor communications – Karuma Marthudunera (Combined) Native Title Claimants/Western Australia/Mineralogy Referral 1/2004, Independent Person 14 June 2005. The material submitted highlights that some members of the native title party would be genuinely, and perhaps not unreasonably, upset about the grantee party entering onto the subject land and waters without agreement being first reached (affidavit of Mr Finlay at paras 18, 29 and 30 and Mr Bobby at para 6). However, while emotional upset should not be discounted in carrying out a predictive risk assessment of the likelihood of a future act directly interfering with community and social activities, it is the linkage of the emotional upset with the physical nature of exploration that is the key. In this case the material submitted indicates a lengthy and troubled relationship between the native title party and the grantee party. No doubt there is a level of suspicion and concern amongst some members of the claim group about the manner in which the grantee party will carry out exploration activities, however there is no evidence that the grantee party has inappropriately exercised legal rights in the past or has previously directly interfered with community or social activities. Bad relations between parties can sometimes be of direct relevance for a predictive risk assessment. If there is a history of a grantee party engaging in activities of a type that are dealt with in section 237 then this would be a key issue. Further, if the bad relations relate to previous breaches of the law by the grantee party or threats or overbearing behaviour, such that there is a real fear that the grantee party would not obey the law, then this also would be relevant. Any of these matters would be pertinent to the issue of whether the presumption of regularity should be applied. However, if the bad relations are of the type highlighted in this matter, and relate to interpersonal, commercial and process issues, then they are largely irrelevant to a section 237 predictive risk assessment.
Section 237(b) – interference with areas or sites of particular significance
Mr Finlay deposes (para 1) that he is an elder and lawman of the Kuruma Marthudunera People. He explains that though his family is Kuruma, the Marthudunera and Kuruma People were joined together in the Dreamtime. Further as a result of this relationship he states (para 3) he is allowed to speak for some places in Marthudunera country. It would appear that Mardie Station, and the area of the proposed tenement, fall within Marthudunera country, and that Mr Finlay has the appropriate authority and “qualification” to speak for sites on and near the proposed tenement. Consequently, I have proceeded on the assumption that Mr Finlay can speak with authority and knowledge about areas and sites said to be of special significance to the native title party. Further, and for the record, I have no reason to doubt Mr Finlay’s sincerity and honesty in his account of the sacred significance of the various places and stories he deposes to.
Specifically Mr Finlay deposes (at para 5) to a dreaming story that links Wiruwandi Plain, Mount Nicholson and Chuerdoo Pool. Both Wiruwandi Plain and Chuerdoo Pool are said to be located within the tenement area, and in the case of Chuerdoo Pool it is recorded on the Permanent Register established by the Aboriginal Heritage Act 1972. I note however, that mapping supplied by the government party indicates that Chuerdoo Pool is located approximately 1-2 kilometres due south of the proposed tenement area.
Mr Finlay also deposes (at para 42) that the proposed tenement area is very important to the native title party as it “has many important sites and is also used as thoroughfare to access other important sites…. There are burial grounds and birth places in and around the proposed tenement area.”
The evidence provided by the native title party is limited and does not provide a basis for the Tribunal to make a finding that this area is “site rich”. There is no doubt that the tenement area contains a number of sites. The majority of recorded sites are located along the route of the gas pipeline, and the numerous “artefacts/scatter” were most probably identified in a heritage survey during the construction phase. The material before the Tribunal establishes that the general location of the proposed tenement is an area that is of significance to the native title party. I also find that there is a dreaming track that links key points identified by Mr Finlay, nonetheless, on the mapping supplied, it does not appear that either Mount Nicholson or Chuerdoo Pool are located within the subject area.
The fact that a site is recorded on the Register of Aboriginal Sites does not mean that it is a site of “particular significance” within the meaning of section 237. For a site to be of “particular significance” it must be of special or more than ordinary significance to native title claimants – Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 34-35 per Carr J. I am not in a position to make any findings about the various sites recorded on the Register as, with the exception of Wiruwandi Plain, there is no direct evidence before the Tribunal on their “particular significance” to the native title party.
I accept that there is a dreaming track, and perhaps even a series of dreaming tracks, over the area of the proposed tenement. However, the fact that a dreaming track has been identified by the native title party does not result in a finding that it is of “particular significance”. In Andrews v Northern Territory (2002) 170 FLR 138 at 169-170 the Tribunal found:
“ … while Dreaming tracks are significant, not all Dreamings are of equal importance, and not all places along a track are of equal significance, at least to particular native title holders. In each and every case a person speaking on behalf of native title holders should explain why a particular Dreaming site is of particular importance. The Tribunal will readily accept that evidence by a person having traditional authority of a place as a Dreaming site is a matter of great relevance to a s 237(b) assessment. However, the identification of a place as a Dreaming site does not automatically result in a finding of significance. The particular sacredness of the site in the scheme of things needs to be explained before a finding of significance can be made.”
Moreover, even if a dreaming track was assessed to be an area or site of particular significance, Nicholson J held in Little the operation of the Aboriginal Heritage Act 1972 renders the likelihood of interference “remote”. While as I earlier pointed out, this is the starting point in an inquiry, the relatively limited nature of direct evidence adduced by the native title party is such that the protective nature of the legislation would be sufficient to render the likelihood of interference remote.
The native title party also draws the attention of the Tribunal to the fact that a heritage agreement has not been executed. Considerable effort was expended by both the native title and grantee parties in explaining why that was so. However, there is no obligation on a grantee party to execute a heritage agreement and participate in a heritage survey – Monadee v Western Australia (2003) 174 FLR 381 at 385. Moreover, the absence of such a survey does not result in an inference that there will be a greater likelihood of interference within the meaning of section 237(b) – Monadee at 385. Finally, while “the grantee party has not signed a heritage agreement this on its own cannot be used to reach a conclusion that it will not obey the law. It is on notice of its obligations under the Aboriginal Heritage Act not to interfere with sites and is now aware through these proceedings of a number of sites on the tenement area” Lockyer/Western Australia/Adelaide Prospecting Pty Ltd [2002] NNTTA 33 at [18] per Deputy President Sumner. In this regard the grantee party submitted (SCM at para 5) that “it is bound by, and commits to observe fully, the provisions of the Aboriginal Heritage Act 1972.”
The native title party claims that the entire area of the proposed tenement is of particular significance (SCNTP at para 37). It basically supports that broad proposition by highlighting that there are significant sites around the area of the proposed tenement. Fundamentally the native title party is seeking a finding that the subject area forms part of a wider area which is “site rich”. As stated, whether an area is “site rich” is a question of fact, and the primary means by which the Tribunal can make such a finding is by means of primary evidence from native title claimants who have the authority and knowledge to explain the particular sacredness of an area.
The mapping provided to the Tribunal in fact shows that there are numerous registered and unregistered sites in and around the subject area. That fact of itself does not mean that those sites individually or cumulatively are sites of “particular significance” nor does it mean that an area is “site rich”. The Tribunal is only able to make such a finding if it is presented with detailed information about the sites, explaining their particular significance and also the particular sacredness of an area. This level of detailed material is absent from this inquiry. Instead, the Tribunal is presented with only one affidavit and the discussion in the affidavit is short and lacking in very much detail. Certainly, there is insufficient primary evidence for the Tribunal to find that the tenement area is “site rich”.
The grantee party contended (SCM at para 6): “Since the Objectors claim that there are numerous unregistered sites, then the Objectors have not observed their obligations under the Act nor done what they could to protect sites of importance to them or their claim is spurious.” This line of reasoning is unattractive. The Tribunal will make a finding whether an area or site is of “particular significance” within the meaning of section 237(b) irrespective of whether that area or site is registered. The Tribunal will not in the normal course, draw any adverse inferences from the fact that a site is alleged to be of particular significance, but it is not registered, recorded or noted on a heritage register. There could be many reasons for this, including an obvious desire of a claim group not to record a particular site or area on a public register lest it be disturbed or destroyed. Indeed, the Aboriginal Heritage Act 1972 recognises that there is not a blanket obligation to disclose information about sites of significance. Section 7(1)(b) provides that the Act shall not be construed “so as to require (a person of Aboriginal descent) to disclose information or otherwise act contrary to any prohibition of the relevant Aboriginal customary law or tradition.” Rather, the Tribunal agrees with the contention of the government party (SCGP at para19) that evidence sufficient to raise the question of ‘real chance’ of interference is not found in broad assertions of the existence of sites, or to extend that proposition, to the sacredness of whole areas of land and waters.
The Tribunal therefore finds that there are no areas or sites of particular significance within the meaning of section 237(b), and consequently there is no likelihood of interference. However, even if the Tribunal were to accept that the Wiruwandi Plain was an area of “particular significance” I would conclude that the presumption of regularity, the protective operation of the Aboriginal Heritage Act 1972 and associated administrative procedures combined would render it unlikely that there would be a real risk or chance of interference. In this regard the Tribunal has previously noted that the revised “Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration” issued in July 2004, and the amendments to the Aboriginal Heritage Act introduced in 2003 have enhanced the effectiveness of the regulatory regime for the protection of Aboriginal sites – Champion v Western Australia (2005) 190 FLR 362 at 385-386.
Section 237(c)
The correct approach to the interpretation of paragraph (c) of section 237 has now been authoritatively determined by the Full Federal Court in Little v Oriole Resources Pty Ltd (2005) 146 FCR 576. The Full Court held that paragraph (c) in both of its limbs required a predictive assessment, rather than the previous approach of the Tribunal which was to assess the likelihood of disturbance by reference to what could be done by a grantee party exercising the full legal entitlements entailed with a lawful grant of a tenement. In short, the Federal Court held that the approach of the Tribunal was to unnecessarily focus on paper legal entitlements rather than approach each expedited procedure inquiry on the basis of likelihood of major disturbance to relevant land and waters, based not only on the legal regime in place but also on any relevant evidence adduced. To sum up, the Federal Court determined that previously the Tribunal approached its task in assessing the second limb of paragraph (c) in a formalistic manner without taking account of all the facts, and in some cases not properly and fairly assessing the evidence presented by grantee parties.
Mr Finlay’s affidavit focuses on a concern that due to a failure of the native title and grantee parties to reach agreement, there is a real risk of exploration interfering and causing damage to sites, particularly unregistered sites. Particular concern is raised about the grantee party not understanding the laws and customs of the native title party, resulting in both the explorers and members of the claim group being put at risk. Inadvertent disrespect may be shown by the explorers by the very act of exploration resulting in distress to members of the claim group. Finally, Mr Finlay asserts that under traditional laws and customs permission must first be obtained from the claim group before third parties can enter onto country. He deposes (at para 47): “They have got to ask us first. If we say, ‘No’, they must leave our country, but if we say ‘Yes’, they can stay and talk to us.”
Apart from concerns of a cultural nature, Mr Finlay also deposes (at para 43) that he is aware of the exploration activities that are allowed by an exploration licence and that this could result in “a large amount of earth removal and drilling.”
The conditions proposed by the government party for the exploration licence address many of the concerns that may arise with exploration activities. Condition 1 requires the capping and making safe of any surface holes drilled. Condition 2 requires all costeans and other surface disturbances to be backfilled and rehabilitated. Condition 3 imposes an obligation to remove all waste materials, abandoned equipment and temporary buildings. Condition 4 prohibits the use of scrapers, graders, bulldozers, backhoes or other mechanized equipment for surface disturbance unless the written permission of the relevant State Government officer is first obtained. In short, the conditions imposed on the licence require rehabilitation of the land and waters and up front checks on the use of ground breaking equipment.
In addition to the conditions imposed by the Exploration Licence, specific statutory conditions are imposed by section 63 of the Mining Act 1978. The relevant parts of section 63 are set out below:
“63 Condition attached to exploration licence
Every exploration licence shall be deemed to be granted subject to the condition that the holder thereof will explore for minerals and –
(aa) will not use ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless –
(i) the holder had lodged in the prescribed manner a programme of work in respect of that use; and
(ii) the programme of work has been approved in writing by the Minister or a prescribed official;
(b) will fill in or otherwise make safe to the satisfaction of a prescribed official all holes, pits, trenches and other disturbances to the surface of the land the subject of the exploration licence which are –
(i) made while exploring for minerals; and
(ii) in the opinion of the prescribed official, likely to endanger the safety of any person or animal;
and
(c) will take necessary steps to prevent fire, damage to trees or other property and to prevent damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.
The Endorsements on the Exploration Licence also specifically draw to the grantee’s attention the provisions of the Aboriginal Heritage Act 1972. As noted previously (SCM at para 5), the grantee party has specifically committed itself to observing fully the provisions of that Act.
The focus of paragraph (c) is “major” disturbance to land and waters. The Full Federal Court in Dann v Western Australia (1997) 74 FCR 391 held that “major” is an adjective of degree. In particular Wilcox J held (at 395):
“In determining whether a given envisaged disturbance to land or waters amounts to a major disturbance, the Tribunal must make a value judgment … in doing this, the Tribunal must give the term ‘major disturbance’ its ordinary English meaning. It must consider the matter of degree from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important. The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is of no consequence to people who live far away. And, of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in or use the affected area, that might be sufficient to warrant a finding that it will constitute a ‘major disturbance’ even if it would be unimportant to non-Aboriginals.”
The Tribunal has accepted that in evaluating the likelihood of major disturbance resulting from the grant or exercise of a proposed tenement, consideration can be given to the cultural concerns of members of the claim group. However, that is not the initial focus of an inquiry. In Rosas v Northern Territory (2002) 169 FLR 330 at 359 the Tribunal determined:
“the starting point and pre-condition of any inquiry into major disturbance is evidence of proposed physical disturbance of land and waters. However, when assessing the likelihood of whether physical disturbance will be major, it is open and appropriate for the Tribunal to consider how the physical disturbance will impact on the customs, traditions etc of the native title claim group.”
In other words, a precondition of a finding that there is a likelihood of “major disturbance” is evidence of physical disturbance of the subject land and waters. Cultural concerns flow from the nature and extent of the physical disturbance. The concept of “major disturbance” cannot be assessed from an initial starting point that members of the claim group will be upset about persons entering onto their traditional lands and that those persons may not know or follow the laws and customs of the native title claim group. If such an approach were followed, then the mere fact of entry onto the land would constitute “major disturbance”. In Dann Wilcox J relevantly observed (at 395):
“The Court was informed in the course of argument that some Tribunal members had held that an envisaged disturbance to land or waters should be regarded as a ‘major disturbance’ if it was so categorized by one of the parties. If that view had been taken, it is clearly wrong. It is for the Tribunal to determine whether a particular future act will involve disturbance to land or waters and, if so, whether the disturbance answers the description of being a ‘major disturbance’. Submissions from the parties may assist the Tribunal in reaching conclusions on these matters, but assertion is not enough; the Tribunal must decide.”
Likewise in this matter, the Tribunal would be in error to commence an assessment of the likelihood of major disturbance flowing from the grant of the proposed tenement on the basis that any entry onto the land and the carrying out of any exploration will cause upset. The starting point must be evidence that the proposed exploration will disturb the land and waters, and from that point assess whether the disturbance will be “major” having regard to the regulatory regime in force, the intentions of the grantee party, the type of exploration envisaged, the physical characteristics of the subject land and waters, the use of the land by members of the native title claim group, other uses of the land by third parties (e.g. is it part of a pastoral property) and finally, the extent to which cultural practices and beliefs of the native title party will be likely to be impacted upon by exploration activities.
There is no evidence before the Tribunal that the proposed exploration activities of the grantee party present any unusual risks to the subject land and waters. There is no evidence, for example, that the subject land and waters are environmentally fragile such that endangered ecosystems would be put at risk. There is also no evidence of any geological or environmental factors that would be relevant to assessing the risk of “major” disturbance. Further, there is no evidence that the grantee party will engage in significant ground disturbing exploration activities. Indeed, the grantee party is subject to a well ordered regulatory regime aimed at minimizing the risk of major disturbance. I also take into account that the grantee party has explicitly committed itself to complying with the requirements of the Aboriginal Heritage Act 1972. This commitment does not, of course, deal comprehensively with all of the concerns of the native title party, but it is a useful and appropriate commencement point.
In addition, the subject land and waters are intersected by roads and a gas pipeline, and almost all of the proposed tenement forms part of a pastoral property, where there is the likelihood of ongoing disturbance to the land.
There is no evidence of any Aboriginal community residing in close proximity to the proposed tenement, and only brief evidence about the extent and nature of members of the native title claim group visiting and camping on the subject area.
Finally, no evidence has been submitted that previous exploration or mining activities on the subject land and waters have resulted in any major and deleterious disturbance.
To sum up, the Tribunal has before it evidence of a regulatory regime aimed at minimizing the risk of major disturbance to land and waters both during the exploration phase and by remediation of sites following exploration. There is little evidence of community or social activities on the subject land, and no evidence of any indigenous communities living nearby. Further, there is no evidence that the subject land has any particular environmental, geological or other sensitive features that need to be factored in. The subject land is part of a pastoral lease and subject to ongoing ground disturbing activities. While the native title party is entitled to raise cultural concerns, and these are relevant factors in assessing “major disturbance” nonetheless they must be considered in the context of a paragraph which is primarily aimed at evaluating physical disturbance by the act of exploration. Overall therefore, the Tribunal finds that the grant of the proposed tenement to the grantee party, and the exercise of any rights pursuant thereto, will not be likely to involve major disturbance to the subject land and waters.
Determination
The determination of the Tribunal is that the grant of Exploration Licence 08/1331 to Mineralogy Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993.
John Sosso
Member
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