Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Western Australia/Red River Resources Ltd
[2008] NNTTA 12
•25 January 2008
NATIONAL NATIVE TITLE TRIBUNAL
Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Western Australia/Red River Resources Ltd, [2008] NNTTA 12 (25 January 2008)
Application No: WO07/352
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo (WC98/40) (native title party)
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The State of Western Australia (Government party)
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Red River Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 25 January 2008
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act 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)
Mining Act 1978 (WA), ss 8, 20(5), 63
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 and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
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 Banyjima People v State of Western Australia 2007 FCA 1027
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Western Australia/Red River Resources Ltd, NNTT WO06/228, [2007] NNTTA 30 (30 March 2007), Hon C J Sumner
Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/Western Australia/Geotech International Pty Ltd, NNTT WO05/712, [2006] NNTTA 63 (26 May 2006), Hon C J Sumner
Solicitors for the
native title party: Ms Nikki Lapsley, Kitto & Kitto Barristers and Solicitors
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Jan Mason, Department of Industry and Resources
Representative of the Ms Melissa Greer
grantee party: Hetherington Exploration & Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 23 May 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/1707 (‘the proposed licence’) to Red River Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 51.17 square kilometres and is located 23 kilometres south westerly of Dampier in the Shire of Roebourne. 47.53 per cent of the proposed licence is overlapped by both the Yaburara & Mardudhunera registered claim (WC96/89 - registered from 1 August 1996) and the Wong-goo-tt-oo registered claim (WC98/40 - registered from 10 July 1998). The remaining 52.47 per cent is overlapped by the Ngarluma Aboriginal Corporation, the prescribed body corporate for the Ngarluma Determination Area located within the Ngarluma/Yindjibarndi Native Title Determination Area (WAD6017/96).
The history of the claim and subsequent determined area overlap between the Ngarluma/Yindjibarndi native title claim (determined in the Federal Court on 2 May 2005) and the Wong-goo-tt-oo registered native title claim has been previously described in Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Western Australia/Red River Resources Ltd, NNTT WO06/228, [2007] NNTTA 30 (30 March 2007), Hon C J Sumner (‘Red River 1’) at [3]. That matter involved exploration licence E47/1309 which adjoins some of the southern boundary of the proposed licence area. Since I determined that matter the appeal by the Wong-goo-tt-oo claim applicant against the Federal Court determination has been dismissed and further special leave to appeal to the High Court of Australia subsequently abandoned. The Wong-goo-tt-oo claim was subsequently amended to reflect the boundaries determined by the Federal Court. The Wong-goo-tt-oo claim has a common boundary with the Ngarluma/Yindjibarndi determined area but post determination no overlap exists.
On 23 May 2007, an expedited procedure objection application was lodged with the Tribunal by Mr Wilfred Hicks on behalf of Wong-goo-tt-oo People (WC98/40) (‘the native title party’). No objections have been lodged on behalf of the Yaburara & Mardudhunera or the Ngarluma Aboriginal Corporation.
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. However, during the Preliminary Conference of 26 June 2007 the representative for the grantee party, Ms Melissa Greer, indicated that her client had offered an agreement to the Ngarluma Aboriginal Corporation and, based on previous experience, was not likely to reach a mutually agreed outcome with the Wong-goo-tt-oo People. On this basis the grantee party requested that the objection proceed directly to Inquiry and, with the concurrence of all parties, the dates for compliance with directions made by the Tribunal were bought forward to enable the Inquiry to be conducted as expeditiously as possible. Subsequently, directions were amended on two further occasions with consent of the parties to permit parties further time to seek instructions and submit documents. In accordance with final amended directions, all contentions and evidence were filed by 17 December 2007.
At a Listing Hearing on 20 December 2007 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 objection 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 Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis 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 notable underlying land tenure in the subject area.
Karratha Pastoral Lease 3114/464 vested in Hamersley Iron Pty Ltd (70.2% per cent overlap).
Vacant Crown land (seven parcels totalling 7.8 per cent overlap).
Crown Reserve 9701 vested in the Department of Planning and Infrastructure for the purpose of the De Grey Mullewa Stock Route (19.6 per cent overlap).
Crown Reserve 356 vested in the Shire of Roebourne for the purpose of a watering place for travellers and stock (1.5 per cent overlap).
Four Private Land parcels (overlapping less than 0.5 per cent in total).
Nine Road Reserves, eight of which pertain to closed roads, the remaining reserve being for the purpose of the North West Coastal Highway (overlapping no more than 0.3 per cent in total).
State Onshore Pipeline Licences 74 and 40 also overlap 2.1 per cent of the proposed licence.
The documentation records that there are no Aboriginal communities within the vicinity of the proposed licence.
DoIR’s Quick Appraisal evidences some historical mining and exploration activity over the area of the proposed licence with a number of ‘dead’ tenements active variously between 1965 and 2001. An application for a mining lease was also refused in 2002, and applications for one mining lease and one exploration licence were withdrawn in 2006 and 2007 prior to grant. Two Ministerial Temporary Reserves (TR 70/5461 and TR 70/5975) have been active since 1970 and 1973 respectively although DoIR advice is that the area of the proposed licence, if granted, would exclude the very small overlapping area of TR 70/5975. TR 70/5461, which overlaps 99.9 per cent of the proposed licence area, was granted to enable the ‘orderly development’ of the Dampier and Karratha area, the purpose being to regulate mining activities in the district and, as such, is not indicative of mining and exploration activity, but rather of the perceived need to ensure that such activity progressed in an orderly manner. DoIR have confirmed that the presence of TR 70/5975 is not a bar to the grant of E47/1707. M47/46 is also listed as an active tenement, encroaching on the proposed licence area by 0.3 per cent.
The grant of the proposed licence 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 relate to:
Providing notification to the pastoral or grazing lessee of the grant of the licences and of certain exploration activities (conditions 5–6);
Notification in writing to the licence holder by the Minister for State Development of the cancellation of the proposed licence without compensation in the event that any part of the subject area is required for public purposes or industrial development (condition 7);
The requirement for the consent of the relevant Minister prior to mining (which includes fossicking, prospecting and exploring for minerals, and mining operations as defined in s 8 of the Mining Act) on the Reserve created for the purpose of the De Grey-Mullewa Stock Route (condition 8);
Limitation of activities on or around a Geodetic Survey Station and an Aerial Landing Grounds (conditions 9-10);
Limitations on excavation, excepting shafts, in the vicinity of the North West Coastal Highway, Highway verge or the road reserve, and on any other road or road verge (condition 11); and
limitations and prohibitions on a number of activities on and in the vicinity of Pipeline Licences PL40 and PL74 and their associated Safety Zones (the latter without approval of the State Mining Engineer, DoCEP) and access to same (conditions 12-19).
In addition Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) are included on grant of title drawing the licensee’s attention to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations, and the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Government party also will place the following condition on the grant of the proposed licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Wong-Goo-To-Oo People, the applicants in Federal Court application no. 6256 of 1998 (WC 98/40), such request being sent by pre-paid post to reach the Licensee’s address c/- Hetherington Exploration and Mining Services Pty Ltd, Post Office Box 8249, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wong-Goo-Tt-Oo People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Pilbara Land and Sea Council.’
Searches of the Register of Aboriginal Heritage Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act and provided by both the Government party and the native title party reveal 34 registered sites partially or entirely within the area of the proposed licence:
Site ID 6555 – Maitland River Bridge, Artefacts/Scatter - Permanent Register, open access, no restrictions;
Site ID 8069 – Borrow Pit 5, Artefacts/Scatter. Permanent Register, open access, no restrictions;
Site ID 8286 – Natgas 259, Artefacts/Scatter. Interim Register, open access, no restrictions.
Site ID 10574 – Gas Pipeline 23, Artefacts/Scatter. Permanent Register, open access, no restrictions;
Site ID 10575 – Gas Pipeline 24, Artefacts/Scatter, Midden/Scatter. Permanent Register, open access, no restrictions;
Site ID 10681 - Western Lease 01, Artefacts/Scatter. Interim Register, open access, no restrictions;
Site ID 10682 - Western Lease 02, Artefacts/Scatter. Interim Register, open access, no restrictions;
Site ID 10693 - Western Lease 13, Grinding patches/grooves. Permanent Register, open access, no restrictions;
Site ID 16257 – Mainland (Maitland River) Site 20, Quarry, Artefacts/Natural Feature, Scatter. Permanent Register, open access, no restrictions;
Site ID 16576 - Mainland (Maitland River) Site 18, Quarry, Artefacts/Scatter, Shell. Interim Register, open access, no restrictions;
Site ID 16577 - Mainland (Maitland River) Site 19, Quarry, Artefacts/Scatter, Exploited Stone Sources. Interim Register, open access, no restrictions;
Site ID 16578 - Mainland (Maitland River) Site 21, Artefacts/Scatter. Interim Register, open access, no restrictions;
Site ID 16579 - Mainland (Maitland River) Site 22, Artefacts/Scatter/Grinding patches/grooves. Permanent Register, open access, no restrictions;
Site ID 16580 - Mainland (Maitland River) Site 23, Artefacts/Scatter. Interim Register, open access, no restrictions;
Site ID 16581 - Mainland (Maitland River) Site 24, Artefacts/Scatter, Shell. Interim Register, open access, no restrictions;
Site ID 16582 - Mainland (Maitland River) Site 25, Artefacts/Scatter. Interim Register, open access, no restrictions;
Site ID 16584 - Mainland (Maitland River) Site 27, Artefacts/Scatter/Grinding patches/grooves. Permanent Register, open access, no restrictions;
Site ID 16585 - Mainland (Maitland River) Site 28, Artefacts/Scatter/Grinding patches/grooves. Permanent Register, open access, no restrictions;
Site ID 16586 - Mainland (Maitland River) Site 29, Quarry, Artefacts/Scatter, Exploited Stone Sources. Interim Register, open access, no restrictions;
Site ID 16590 - Mainland (Maitland River) Site 34, Artefacts/Scatter/Grinding patches/grooves, Shell. Interim Register, open access, no restrictions;
Site ID 16591 - Mainland (Maitland River) Site 35, Artefacts/Scatter/Grinding patches/grooves. Interim Register, open access, no restrictions;
Site ID 17996 – Pipeline Corridor 03 (Pc-03), Artefacts/Scatter, Shell. Permanent Register, open access, no restrictions;
Site ID 17997 – Pipeline Corridor 04 (Pc-04), Artefacts/Scatter. Permanent Register, open access, no restrictions;
Site ID 17998 – Pipeline Corridor 05 (Pc-05), Artefacts/Scatter. Stored data, open access, no restrictions;
Site ID 17999 – Pipeline Corridor 06 (Pc-06), Artefacts/Scatter. Stored data, open access, no restrictions;
Site ID 18000 – Pipeline Corridor 07 (Pc-07), Artefacts/Scatter, Shell. Permanent Register, open access, no restrictions;
Site ID 18003 – Pipeline Corridor 10 (Pc-10), Artefacts/Scatter. Stored data, open access, no restrictions;
Site ID 18088 - Maitland River, Ceremonial, Mythological, Historical, Archaeological Deposit, Plant Resource, Camp, Shell, Hunting Place, Named Place, Water Source. Stored data, closed access, no restrictions;
Site ID 18089 - Yanyare River, Ceremonial, Mythological, Historical, Plant Resource, Camp, Hunting Place. Stored data, closed access, no restrictions;
Site ID 18872 – Austeel Gas Pipeline 3, Artefacts/Scatter. Interim Register, open access, no restrictions;
Site ID 21583 – Dampier-Bunbury Gas Pipeline, Artefacts/Scatter, Isolated Artefacts. Stored data, open access, no restrictions;
Site ID 21671 - Edl Maitland/ Fs04-1, Artefacts/Scatter. Interim Register, open access, no restrictions;
Site ID 21674 - Edl Maitland/ Fs04-4, Quarry, Artefacts/Scatter, Grinding patches/grooves. Interim Register, open access, no restrictions; and
Site ID 22608 – Grindstone 2, Grinding patches/grooves. Interim Register, open access, no restrictions.
Native title party evidence
In support of its contentions, the native title party’s submission includes the affidavit of Wilfred Hicks sworn 7 December 2007. Apart from the date sworn and references to the specific proposed licence the subject of this inquiry, the affidavit is made in identical terms to that provided in Red River 1 and set out in full in my reasons for determination in that matter (at [16]). As in that matter the evidence of Mr Hicks is uncontested and I accept it. Mr Hicks is one of the persons comprising the applicant for native title and I accept that he has authority to speak on behalf of the native title party.
As in Red River 1 some of Mr Hicks’ evidence relates to areas outside the area of the Wong-goo-tt-oo claim but within the area of the Ngarluma/Yindjibarndi determination. In that matter I decided that this evidence was relevant to the inquiry on the basis that Mr Hicks was a holder of native title in relation to the Ngarluma/Yindjibarndi determination area for the purposes of s 237 because some of the Wong-goo-tt-oo claim group are also Ngarluma/Yindjibarndi People. I adopt my findings in Red River 1 at [18]-[22] that Mr Hicks is a native title holder for the purposes of s 237 either by virtue of the fact that he is a registered claimant (over the Wong-goo-tt-oo registered claim area) or part of a group which holds native title (over the Ngarluma/Yindjibarndi determination area).
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, s 20(5) in relation to pastoral leasehold areas and the additional conditions and 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. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them. As noted previously (para [18] above) the evidence provided is in identical form to that provided by Mr Hicks in Red River 1 and in very similar form to that provided in Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/Western Australia/Geotech International Pty Ltd, NNTT WO05/712, [2006] NNTTA 63 (26 May 2006), Hon C J Sumner (‘Wilfred Hicks/Geotech’). In Wilfred Hicks/Geotech the exploration licence the subject of the objection application was 60 kilometres south-westerly of Dampier and its northern boundary located a few kilometres from the southern boundary of the proposed exploration licence. The Tribunal found that the expedited procedure was attracted in both matters. For similar reasons I have come to the same conclusion in the present matter. I adopt the relevant findings from my determination Wilfred Hicks/Geotech at [16]. At paragraph 6 of his affidavit, Mr Hicks deposes that “it has been our custom to visit areas around Karratha Station and surrounds to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements.” The stated activity is said to have occurred in the past and the evidence of Mr Hicks alludes only to the consequences if contemporary activity were to occur rather than specifying the frequency of such activities, the numbers of persons or the specific location of those activities.
The Tribunal must also have regard to the fact that access to the area would be limited to the area in which exploration is taking place and temporary. The total area of the licence will be 51.17 square kilometres and intensive ground disturbing exploration will only occur at any one time over a small area within the proposed licence. Further, the portion of Karratha station that overlaps the native title party claim, which Mr Hicks deposes is frequented by members of the native title party is in itself 426.8 square kilometres (approximately 46 per cent of the station area as a whole), approximately eight times the size of the proposed licence area. Additionally, the area of the native title party's claim is much larger still (7,522 square kilometres), thus making it less likely that exploration on the licence area will impact on community and social activities, which I can infer are likely to be carried out over a broader area than that of the proposed licence (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])).
With respect to the native title party’s contention that large areas of traditional land will be closed off while exploration activities are carried out (contention – para 3(ii)) I adopt the relevant findings at para [17] of Wilfred Hicks/Geotech to reject this contention.
As in Wilfred Hicks/Geotech the evidence establishes the existence of prior mining and pastoral activities in the area of the proposed licence. The existence of such activities may be taken into account in assessing whether the grant of an exploration licence is likely to further affect the community or social activities of a native title party (Smith at [26]-[28]; Walley at [12]). I adopt the relevant findings at para [18] of Wilfred Hicks/Geotech) to find that the prior mining and pastoral activities make it less likely that exploration activity will have any further substantial or direct effect on the relatively limited current community or social activities of the native title party. This finding is reinforced by the fact that the area of the proposed licence is partly traversed by the North West Coastal Highway, the De Grey-Mullewa Stock Route and infrastructure corridors including for power and the Dampier Bunbury Gas Pipeline.
With respect to the native title party’s contentions that the spirituality of the land and social cohesion of the community will be diminished by exploration (contentions – paras 3(iii) and (v)), I adopt my findings in Wilfred Hicks/Geotech at [19]. There is scant evidence of the current community or social activities of the native title party whether or not related to the spirituality of the land or that the social cohesion of the community will be diminished.
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. This is such a case. My finding is that given the nature and extent of the community and social activities they are not likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.
Sites of particular significance (s 237(b))
Under 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. There are 34 sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence 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.
Mr Hicks’ evidence establishes that:
there is a story relating to the creation of the Maitland and Yanyare Rivers and the ancestral site of Thaluntha within the proposed licence area;
there is rock art and a rock quarry in or near the area; and
other significant sites exist within the area.
In common with Red River 1 maps provided by the Government and native title parties party show some of these sites and others encompass large areas of the proposed licence, in particular, corridors along the Yanyare and Maitland Rivers which extend along the rivers north south beyond the proposed licence area. However, unlike the situation in Red River 1, only the Maitland River intersects the proposed licence area. Yanyare River runs a few kilometres to the west. The map produced from the Register of Sites shows a buffer zone around the Yanyare River but this only intersects a very small part of the proposed licence area in the south-western corner. The fact that sites 18088 (Maitland River) and 18089 (Yanyare River) are of a ceremonial and mythological nature, access to which is closed, strongly suggests that they are sites of particular significance to the native title party in accordance with their traditions. Both the Maitland and Yanyare Rivers are referred to by Mr Hicks as significant and I am satisfied that they are sites of the kind referred to in s 237(b). The information about the ancestral site of Thaluntha is limited and it is not clear whether it is encompassed within one or other of the rivers or separate from them. An ‘ancestral site’ would potentially qualify as a site of particular significance but because of the limited information in this case it is not possible to make a positive finding. It may be a site of particular significance and the grantee party is now aware of it.
The status of the other sites on the Register is more problematic. Many are artefact/scatter sites with open access which in the absence of evidence from the native title party would not normally be regarded as of particular significance. Some of the other registered sites are quarry or engraving sites but it is impossible to correlate them precisely with Mr Hicks’ general evidence about rock art and an ancient rock quarry site. Apart from the two closed sites referred to above all the others are open which suggests their importance to the native title party may not be as great. Taking all this into account, I find that there are at least two sites of particular significance to the native title party on the subject area or in the vicinity and that there may be others.
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]).
The grantee party has not provided an indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50–51 [34]–[35]). However, there is no evidence to suggest that the grantee will not act lawfully and in accordance with the Aboriginal Heritage Act. The signed statements lodged on behalf of the grantee party indicate that the grantee’s ‘priority is to ensure the conservation and protection of heritage sites’ and ‘to establish an amicable working relationship’ with the native title parties affected by the grant of the proposed licence while ensuring its ‘rights under the Mining Act 1978 are not compromised’. It is also said that the grantee party is mindful of the regulatory restrictions of all relevant legislation as well as the connection of the ‘Traditional Owners’ with country. The grantee party has offered a Regional Standard Heritage Agreement (‘RSHA’) for the Yamatji/Pilbara Region (within which the Wong-goo-tt-oo claim is situated) to the Wong-goo-tt-oo People via its representatives (and this offer has been rejected on the basis that the Wong-goo-tt-oo People prefer their alternative agreement (Hicks affidavit para 12)). The grantee party has also offered an agreement to the Ngarluma/Yindjibarndi People (who have been determined to hold native title over the remaining portion of the proposed licence) via that group’s representative, the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (the relevant native title representative body). It is reasonable to infer that the Ngarluma/Yindjibarndi native title holders were satisfied with this agreement as no objection to the expedited procedure was lodged by them.
The Government party’s condition in relation to acceptance of a RSHA post-grant means that the native title party will have the option to enter into a heritage agreement (albeit not it’s preferred one). 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 at [15]-[35] the relevant parts of which I adopt for the purpose of this determination.
Although the evidence of specific sites was different, the facts of Wilfred Hicks/Geotech and Red River 1 are similar to the present matter. I also observe that in this matter there are eight registered sites in common with those located in or around the proposed licence area in Red River 1 (Site IDs 10681, 10682 10693, 17999, 18000, 18088, 18089 and 21583). I therefore adopt the relevant findings from Wilfred Hicks/Geotech at paras [21]-[29] and my findings at paras [40]-[42] of Red River 1, particularly in relation to the considerable survey research completed in the subject area, the grantee party’s knowledge of the existence of specific sites of particular significance and possibly others, the necessity for the grantee party to consult with the native title party in order to ensure it does not risk breaching the provisions of the Aboriginal Heritage Act, and the fact that neither the overlapping native title holders nor the other registered claimant have found it necessary to object in relation to the assertion of the expedited procedure. I am satisfied that the presumption of regularity is applicable in this matter and that there is unlikely to be interference with sites of particular significance to the native title party from the exploration activity.
Major disturbance to land and waters (s 237(c))
As the facts of the present matter are similar to those in Wilfred Hicks/Geotech, I adopt paras [30]-[32] of that determination and find that the grant of the proposed licence is unlikely to cause major disturbance to land or create rights which do so.
Determination
The determination of the Tribunal is that the grant of exploration licence E47/1707 to Red River Resources Ltd is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
25 January 2008
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