Mullewa Wadjari Community/Western Australia/Drew Griffin Money
[2012] NNTTA 26
•16 March 2012
NATIONAL NATIVE TITLE TRIBUNAL
Mullewa Wadjari Community/Western Australia/Drew Griffin Money, [2012] NNTTA 26 (16 March 2012)
Application No: WO11/967
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Mullewa Wadjari Community (WC96/93) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Drew Griffin Money (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms Helen Shurven
Place: Perth
Date: 16 March 2012
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 30(1), 31, 75, 109, 146, 151, 237
Native Title (Notices) Determination 1998 (Cth) s 6
Native Title (Notices) Determination 2011 (No.1) (Cth) s 6
Mining Act 1978 (WA) s 66
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 62
Cases:Albert Little and Others on behalf of the Badimia People/Western Australia/FMG Resources Pty Ltd, [2011] NNTTA 173
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Dja Dja Wurrung People/Victoria/Highlake Resources Pty Ltd [2008] NNTTA 67
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Mullewa Wadjari Community/Western Australia/Paul Winston Askins [2012] NNTTA 25
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Representative of the
native title party: Ms Shirley Feng, Corser & Corser Lawyers
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr Eamon Cornelius, Western Tenement Services
REASONS FOR DETERMINATION
On 4 May 2011 the Government party gave notice under s 29 (‘s 29 notification’) of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E59/1736 (‘the proposed licence’) to Drew Griffin Money (‘the grantee party’) and included in its 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) (‘expedited procedure notification’).
According to the s 29 notification, the proposed licence comprises an area of 159.3 square kilometres, with a centriod of Lat 27º54' Long 116º05', located 76 kilometres north west of Yalgoo in the Shires of Murchison/Yalgoo. It is 100 per cent overlapped by the registered native title claims of the Mullewa Wadjari Community (WC96/93, registered from 19 August 1996) and the Wajarri Yamatji (WC04/10, registered from 5 December 2005). It is also 98 per cent overlapped by the registered claim of the Widi Mob (WC97/72, registered from 12 December 2011) which, at the conclusion of the s 29 notice period, was not a Registered Native Title Claimant and therefore cannot be a native title party (for the purposes of s 30(1)(a) of the Act).
On 20 July 2011, Mr Leedham Papertalk and Others, on behalf of the Mullewa Wadjari Community (‘the native title party’) made an expedited procedure objection application to the National Native Title Tribunal (‘the Tribunal’) in respect of the proposed licence. No objection applications were lodged by the Wajarri Yamatji.
On 8 September 2011, Hon C J Sumner was appointed as the Member for the purpose of conducting the inquiry into the application. In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. The directions allow a period from the s 29 closing date for the lodgement of objections (4 September 2011), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
On 20 September 2011, a preliminary conference was held at which the grantee party advised that, if a Regional Standard Heritage Agreement (‘RSHA’) was not acceptable to the native title party, it wished to proceed to an inquiry before the Tribunal. The native title party representative confirmed instructions to negotiate only on another heritage agreement preferred by the native title party. The matter was adjourned to a Listing Hearing on 2 February 2012.
The Government party lodged its contentions and evidence on 22 November and 20 December 2011 and the native title party lodged its submissions on 10 January 2012. On 2 February 2012 the Listing Hearing was held at which the grantee party indicated it would rely on the Government party’s contentions. The Government party requested leave to consider the native title party’s submissions and lodge a written reply, and all parties agreed for the matter to be heard ‘on the papers’ without a further hearing.
Following the 2 February 2012 Listing Hearing, I was appointed by Hon C J Sumner as the Member for the purpose of conducting the inquiry into the objection application. In consideration of the Government party’s requests at that hearing, I directed that any party who wished to file any submissions in reply to another party’s submissions should do so by 12 March 2012. On 1 March 2012, the Government party lodged a Statement of Contentions in Response to the Contentions of the Native title Party (‘the Response’). No other submissions were received.
I have considered all the submissions from the parties and I am satisfied that the objection application can be adequately determined on the papers (as per s 151(2) of the Act).
The adequacy of s 29 notification
On 22 November 2011 the Government party provided, as part of its submissions for this inquiry, quick appraisal documentation generated from its Tengraph mapping program on the same day. The documentation describes the proposed licence as comprising 15752.35 hectares (approximately 157.5 square kilometres) with a centroid of Lat 27º54' Long 116º05'30''. The issue to be determined is whether the discrepancy between this documentation provided by the Government party and the s 29 notification, which describes the proposed licence as comprising 159.3 square kilometres with a centroid of Lat 27º54' Long 116º05' (rounded from Long 116º05'29''), constitutes a failure by the Government party to give proper notice in accordance with s 29 of the Act.
Before a future act can be done, s 29(1) of the Act requires the Government party to give notice in accordance with that section. If the Tribunal were to find that proper notice had not been given, it would not have jurisdiction to make any determination pursuant to the application (see, for example, Dja Dja Wurrung People/Victoria/Highlake Resources Pty Ltd [2008] NNTTA 67. Regardless of whether the question of jurisdiction has been raised by a party or by the Tribunal itself in the course of its investigations, it is incumbent upon the Tribunal to satisfy itself that it has the necessary jurisdiction to make a determination (see Albert Little and Others on behalf of the Badimia People/Western Australia/FMG Resources Pty Ltd, [2011] NNTTA 173 (‘Albert Little’) at [11] and [17]). In doing so, the Tribunal has found, on numerous occasions, that it must not take an unduly technical approach: the fundamental task is to consider the consequences of any non-compliance, namely, whether the rights of any person were adversely affected as a result. Depending on the circumstances, substantial compliance may be sufficient (Albert Little and cases cited therein [11]-[17]).
There is no evidence before me which suggests the Government party did not, in accordance with s 29(2) of the Act and its standard practice, provide an identical letter to the registered native title claimants for the area, the Native Title Representative Body for the area, the grantee party, and the National Native Title Tribunal, being the arbitral body in relation to the Act. Indeed, on 2 May 2011 the Tribunal received the letter with a table of exploration licences for the s 29 notification day of 4 May 2011, which includes the proposed licence, and two maps for each licence in the table, the first showing its location within Western Australia as a whole and the second showing its approximate boundaries. The maps in this matter are dated 5 April 2011. Nor is there any evidence before me which suggests the Government party did not, in accordance with s 29(3) of the Act and its standard practice, publish the same table of exploration licences for the same notification day in a newspaper of general circulation through the area and a special interest publication (Native Title (Notices) Determination 1998 (Cth) s 6(1), since superseded by the Native Title (Notices) Determination 2011 (Cth) (No.1)) (Albert Little at [12]).
The table of exploration licences circulated pursuant to s 29(2) and (3) of the Act describes the proposed licence as comprising an area of 159.3 square kilometres, with a centroid of Lat 27º54' Long 116º05', located 76 kilometres north west of Yalgoo. The description accords with that provided in the maps dated 5 April 2011 and circulated pursuant to s 29(2) of the Act, although it appears the table did not exactly reflect the centroid coordinates as mapped, as the map was not rounded to the nearest minute (one map records the centroid as Lat 27º54' Long 116º05'29'').
On 6 March 2012, the Tribunal emailed the Government party requesting the reasons for the discrepancy between the size of the proposed licence as described in the documentation provided by the Government party on 22 November 2011 and the s 29 notification. On 8 March 2012, the Government party advised that the error may have been caused by problems with the version of the mapping program used to produce the 5 April 2011 maps, and that this older version of the mapping program ‘has now been superseded’. The Government party confirmed that ‘[p]rinting a fresh centroid plan today shows the correct area of the tenement (being 15,752.35 Ha. (52 blocks))’. It maintains that ‘[t]he shape or position of this application has not changed since it was plotted on the 19/11/2010’.
In considering the adequacy of s 29 notification, the question is not whether adequate notice was given under s 29(2) of the Act. All relevant parties were provided with notice in the usual way. The question is whether adequate notice was given under s 29(3) of the Act to enable any person to locate the proposed licence in order to determine whether to take steps to become a native title party in relation to the notice (s 29(4)(b)). In other words, the question is whether the rights of any person have been adversely affected as a result of the discrepancy between the size and centroid of the proposed licence as described in the table of exploration licences and that described, and intended for grant, in the Government party documentation dated 22 November 2011.
I note that the centroid discrepancy is very small, being only one second, and the size of the proposed licence as described in the s 29 notification is actually larger (1.78 square kilometres or 1.1% larger) than the area now proposed for grant. I compare this with Albert Little, which was dismissed for want of jurisdiction, where the actual location of the proposed licence was some 290 kilometres south of where the table of exploration licences indicated it was, and its size was over-stated by almost 130 square kilometres. On balance, I find that the location and size of the proposed licence in the current matter has not changed so substantially since the s 29 notification that the rights of any person have been adversely affected by the discrepancy. I find that there is substantial compliance with the requirements of s 29 of the Act and the Tribunal has jurisdiction to conduct an inquiry into this objection application.
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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Hon C J Sumner considered the applicable legal principles (at 439-449, [7]–[23]) and I adopt those findings for the purposes of this inquiry (as per s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters, or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
Evidence in relation to the proposed act
Government party Tengraph Quick Appraisal documentation dated 22 November 2011 establishes the underlying land tenure of the proposed licence to be as follows:
·Yuin Pastoral Lease 3114/1161 (93.2 per cent overlap);
·Vacant Crown Land Reversion, previously Department of Environment & Conservation CALM Purchased Land CPL 47 (6.5 per cent overlap);
·Common Reserve 48494 – Rabbit Proof Fence No. 3 (0.1 per cent overlap);
·Common Reserve 415 – Watering Place for Travellers & Stock (0.1 per cent overlap); and
·Road Reserve (less than 0.1 per cent overlap).
The Government party’s Tengraph Quick Appraisal documentation also notes the File Notation Area 9031 managed by the Public Transport Authority, which relates to the Oakajee-Jack Hills proposed rail corridor overlapping at 34.9 per cent (see Government party’s response to the contentions of the native title party dated 1 March 2012 at 8). In relation to past and current mining activity, the documentation notes: 13 surrendered or expired exploration licences active between 1986 and 2011 which overlapped the proposed licence between 0.2 and 29.3 per cent; two surrendered mineral claims active between 1971 and 1972 which overlapped at no more than 0.4 per cent in total; and two active exploration licences overlapping at 1.9 and 3.8 per cent respectively.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party shows one registered Aboriginal Site under the Aboriginal Heritage Act1972 (WA) (‘AHA’) within the area of the proposed licence, being the Greenough River, identified as mythological Site ID 24761.
Tribunal mapping shows no Aboriginal communities within the area of the proposed licence.
The Draft Tenement Endorsement and Conditions Extract included in the Government Party documentation indicates the grant of the proposed licence intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]) and the following further conditions:
‘5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.The prior written consent of the Mininster responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Watering Place for Travellers and Stock Reserve 415 and Rabbit Proof Fence No 3 Reserve 48494.
In respect to the area designated as CPL 47 in TENGRAPH the following conditions apply:
8.Prior to any ground-disturbing activity, as defined by the Director, Environment, DMP the licensee preparing a detailed program for each phase of proposed exploration for approval of the Director, Environment, DMP. The program to include:
·maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps, drill sites and any other disturbances;
·the purpose, specifications and life of all proposed disturbances;
·proposals which may disturb any declared rare or geographically restricted flora and fauna; and
·techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances [sic]
9.The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the licence to the satisfaction of the Director, Environment, DMP. Such rehabilitation as is appropriate and may include:
·stockpiling and return of topsoil;
·backfilling all holes, trenches and costcans;
·ripping;
·contouring to the original landform;
·revegetation with seed; and
·capping and backfilling of all drill holes.
10.Prior to the cessation of exploration/prospecting activity the licensee notifying the Environmental Officer, DMP and arranging an inspection as required.
And in respect to FNA9031 as shown in Tengraph the following shall also apply:
11.No mining within 30 metres of either side and to a depth of 15 metres of the Rail Corridor Land FNA9031 as shown in TENGRAPH without the prior written approval of the Minister responsible for the Mining Act 1978.
12.No surface excavation approaching closer to the boundary of the Safety Zone established by Condition (11) hereof than a distance equal to three times the depth of the excavation without the prior written approval of the State Mining Engineer, DMP.
13.Mining below 15 metres from the natural surface of the land in the Safety Zone established in Condition (11) hereof being approved by the State Mining Engineer, DMP in consultation with the operator of the railway on corridor land.
14. No interference with the drainage pattern, and no parking, storage or movement of equipment or vehicles used in the course of mining within the Safety Zone established in Condition (11) hereof without the approval of the operator of the railway on corridor land.
15.The Licensee not excavating, drilling, installing, erecting, depositing or permitting to be excavated, drilled, installed, erected or deposited within the Safety Zone established in Condition (11) hereof, any pit, well, pavement, foundation, building, or other structure or installation, or material of any nature whatsoever without the prior written consent of the State Mining Engineer, DMP.
16.No explosives being used or stored within one hundred and fifty (150) metres of the rail corridor land without the prior written consent of the Director, Dangerous Goods Safety Branch, DMP.
17.The rights of ingress to and egress from the rail corridor land being at all times preserved to the employees, contractors and agents of the operator of the railway on corridor land, and the Public Transport Authority of WA.
18.Such further conditions as may from time to time be imposed by the Mininster responsible for the Mining Act 1978 for the purpose of protecting the rail corridor land.
The Draft Tenement Endorsement and Conditions Extract also notes the following two endorsements for the proposed licence (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach):
‘1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.’
The Government party’s contentions (at 5(f)) note a Regional Standard Heritage Agreement condition (‘the RSHA condition’) offered by it:
‘[T]he government party will place the following condition (“the proposed condition”) on the grant of the proposed tenement:
“In respect of the area covered by the licence the Licensee, if so requested in writing by the Wajarri Yamatji, the applicants in Federal Court application no. WAD6033 [sic] of 1998 (WC04/10), such request being sent by pre-paid post to reach the Licensee's address, Western Tenement Services, PO Box 428, Greenwood LPO WA 6924 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wajarri Yamatji the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and Yamatji Land and Sea Council.”
Government party evidence and contentions
The evidence provided by the Government party has been summarised above and any further relevant contentions made in its submissions will be discussed in my findings below. The Government party’s Response to the contentions of the native title party dated 1 March 2012 are largely a restatement of the original contentions provided by the Government party, including further detail about concerns with the evidence provided by Mr Papertalk. For example, the Government party states: that Mr Papertalk fails to outline the kinds of activities which he and other Aboriginal people participate in within the vicinity of the proposed licence area; that his concerns relating to interference with sites are not sufficiently particular; nor does he identify any major disturbance to land or waters that may arise from the grant of the proposed licence.
Native title party evidence and contentions
On 10 January 2012 the native title party representatives lodged a document entitled ‘Native Title Party’s Statement of Contentions’ dated 10 January 2012 and signed by it propria persona (that is, for) Mr Leedham Papertalk on behalf of the native title party as follows:
‘1.The Native Title Party submits that the grant of the exploration licence numbered 59/1736 (“the proposed tenement”) is likely to interfere directly with the carrying on of the community or social activities of the objectors in relation to the land and to interfere with areas or sites of particular significance, in accordance with their traditions, to the objectors in relation to the land, and involve major disturbance to the land.
2.The Grantee Party has not entered into a mutually acceptable Heritage Agreement, nor has the Grantee Party even sent a copy of the Regional Standard Heritage Agreement (“RSHA”) to the Native Title Party. The Statutory Declaration of Michael Behrendt declared 16 December 2011, sworn as agent for the Grantee Party declares that a RSHA was offered to ‘Wajarri Yamatji’ but not the Native Title Party in this matter.
3.The ground covered by the proposed tenement is highly likely to contain sites (within the meaning of that expression in the Aboriginal Heritage Act 1972 (WA)) because:
a.The Spring, Kerbar Pool and Murchison/Greenough River are bodies of water, some seasonal which means that in season, the locality of this water source (and prior to European settlement, was) a source of traditional food, including kangaroo, goanna (including the black bungarra), emu and bush turkey;
b.Members of the Mullewa Wadjari claimant group continue to hunt for and take traditional foods from this region within the exploration licence area;
c.The area covers the Greenough River where there is a registered and sacred site. This site has a very high significance to the Mullewa Wadjari people. The proposed exploration activities will disturb this site, and other significant sites in the exploration area.
d.The land in the vicinity of Kerbar Pool and Murchison River was occupied and travelled through by the traditional owners prior to European settlement. There is a prevalent supply of Bimbe Tree in this area, which is a source of a sweet sap emitted by the tree. This sap was and is highly regarded as a form of traditional food.
e.The same region contains Biliya Trees, which are grown on flat land along rivers and in breakaway country. Biliya Trees are a valued source of food.
f.The same region contains growths of Thuga Thuga (sometimes called Bush Banana) which is a popular form of food, in season, and also quandongs and jalga (similar to a bean), which is a highly nutritious food.
g.In the same region there exists the bush fruit called goggola, which is a type of hanging pod containing seeds. It is sweet and contains a silky white material with the seed inside.
h.The presence of these sources of food means that the area is very likely to contain old camp sites used by my people’s ancestors when they spend extended periods of time in the region, year to year.
i.Therefore, there is also a strong possibility that there will be traditional gravesites in the region.
j.There is also likely to be scatterings of artifacts within the region, as a result of the historical occupation of the region by my people’s ancestors. The area is the ancestry camping grounds and meeting place for all Wadjari People. There are identifying artifacts to the west and east, and within the claim area.
k.It is also a strong possibility that there will be sites and scatterings of artifacts deposited by my ancestors in the course of their observances of traditional ceremonies within the region.
l.The same types of food sources and thus the same likelihood of evidence of occupation of the country by my ancestors exist in the northern portion of the exploration licence because it is close to Murchison River and other water sources including Mummering Spring.
m.Within the breakaway country regions of the explorations [sic] licence area I have observed evidence of traditional owners cooking fires in caves, the smoke markings evidencing the use and occupation of the area by my ancestors.
2.If the licence holder is permitted to perform exploration activities within the area of the licence without the ground being surveyed and monitors being present when the region is being disturbed, then there is the risk of damage to items left behind by my ancestors. [sic- numbering repeats itself]
3.Further, in traditional terms, there is a strong law requiring my people to care for and protect places where our ancestors have lived, and particularly where they camped, or carried out ceremonies, or where they were buried. The spirits of our ancestors live in these places.
4.If these places are disturbed or damaged then in my people’s belief system they can expect that the disturbance of our ancestors’ spirits will lead to misfortune, ill health and possibly also death within my people’s society. For this reason, when exploration activities are to occur without arrangements being in place for the identification and protection of sites and artifacts before the work is done, my people and I experience strong fear of the adverse consequences likely to befall us if and when our ancestors’ spirits are disturbed by damage to or interference with the places that they inhabit.
In its Response to the above contentions, the Government Party notes these are signed by the legal representatives of the native title party and ‘contain both submissions and what appear to be a number of factual assertions. However, the basis for those factual assertions has not been provided to the Tribunal, nor is it clear ... who amongst the Native Title Party is deposing ...’ Accordingly the Government party contends ‘the Tribunal can give little or no weight to any of the unattributed assertions of fact contained in the NTP Contentions and, on this basis, the Tribunal should find that there is no evidentiary support for the Native Title Party’s objection’ (at 24-25).
I note that the native title party’s contentions are, for the main, the same as those submitted by it in Mullewa Wadjari Community/Western Australia/Paul Winston Askins [2012] NNTTA 25 (‘Askins’), except that in Askins the contentions were signed by Mr Leedham Papertalk himself on behalf of the native title party. I accept that Mr Papertalk, as one of the persons comprising the native title party Applicant, has the necessary authority to speak on behalf of the native title party. With reference to s 109 of the Act, the Tribunal is not bound by technicalities or rules of evidence, and I accept the contentions provided in this matter as evidence for the purposes of that inquiry. However, as noted by the Government party, it would enable me to give the evidence more weight if the ‘deponent’ of the contentions signed the document.
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 interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith’)). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451). The assessment is also contextual, taking into 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 451-452).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 66, conditions to be imposed on exploration licences, and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
The evidence suggests that some of the area of the proposed licence has been subject to recent exploration activity which will have already interfered with the native title party’s community or social activities to some degree.
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities or interfere with areas or sites of particular significance to a native title party. In Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’) at [29]-[30], Member Sosso outlined that:
‘The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.’
As no contentions or evidence have been submitted by the grantee party regarding its intentions for the proposed licence, it is assumed that the grantee party will exercise its rights to the full should the proposed licence be granted.
With reference to the contentions provided by the native title party, I note that much of the information is the same as that provided for Askins, which is 30-40 kilometres west of the current proposed licence. Whilst Mr Papertalk states that members of the native title party ‘continue to hunt for and take traditional foods from this region within the exploration licence area’ (at 3b) and lists a number of food sources within the area (at 3a-3g) there is no information provided regarding the frequency, duration, or specific members of the native title party who engage in these activities in a contemporary context. The evidence lacks sufficient specificity to support a conclusion that the native title party’s community or social activities are likely to be interfered with as a result of the grant of the proposed licence.
Taking all of these factors into account, on the basis of the evidence provided, I find there is not a real chance or risk that exploration activity is likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The next issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions.
As stated at para [24] of this determination, the Register kept under the AHA shows one site within the proposed licence, being the Greenough River itself, a section of which overlaps a narrow portion of the proposed licence and extends for a number kilometres to the northeast and southwest of the proposed licence. There may be other sites or areas of particular significance over the area 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. In this matter, apart from the Greenough River, there is little specific evidence to identify sites of particular significance or how they may be interfered with by activities of the grantee party.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (for example in Maitland Parker at [31]-[38], and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Besides the statement that the Greenough River is a ‘sacred site ... [which] has a very high significance to the Mullewa Wadjari people’ (at 3c), the native title party provides no further evidence of specific sites within the propose licence other than the general statements that ‘the area is very likely to contain old camp sites used by my people’s ancestors’, that there is ‘a strong possibility that there will be traditional gravesites in the region’, that there ‘is also likely to be scatterings of artifacts within the region’ and ‘evidence of traditional owners cooking fires in caves’ (3h-3mm). With the exception of the statement regarding the Greenough River, these statements are the same as those submitted in Askins.
I accept that the Greenough River is a site of particular significance to the native title party. Given the Greenough River is a registered site under the AHA, the grantee party is aware of its location and therefore cannot avail itself of s 62 of the AHA. Furthermore, there is no evidence to suggest that the grantee party will not comply with the regulatory regime which, if it does wish to interfere with the site, provides for appropriate consultation with the native title party (as per s 18 of the AHA).
In accordance with the Government party’s policy requirement for expedited procedure notification where more than one native title claim or determination area overlaps a proposed future act, the grantee party has offered a Regional Standard Heritage Agreement (‘RSHA’) with one of the overlapping parties, in this case, the Wajarri Yamatji. Furthermore, it appears that at the preliminary conference, the grantee party offered a RSHA to the native title party, which it declined to accept. The grantee party’s offers indicate an awareness of Aboriginal heritage issues.
There is no evidence to suggest that the grantee party will not comply with the regulatory regime and its offer to enter into a RSHA with the Wajarri Yamatji indicates awareness of Aboriginal heritage issues, albeit that this is not the native title party. The Government party’s RSHA condition is of little practical benefit for the native title party because it provides for a RSHA to be executed in favour of the Wajarri Yamatji and not the native title party. However, there is insufficient evidence provided by the native title party to support a conclusion that sites of particular significance are likely to be interfered with.
Taking all these factors into account, I find it unlikely that there is a real risk of interference with sites of particular significance from exploration activity conducted by the grantee party.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 at [75]-[79] and the cases cited therein).
On the balance of the evidence provided in this matter, I find it is insufficient to suggest there are any factors leading to a finding that major disturbance to land or waters is likely. I find there has not been evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113. Nor in my view is such disturbance likely to be considered major as required by the general community as outlined in Silver.
Determination
The determination of the Tribunal is that the future act consisting of the grant of exploration licence E59/1736 to Drew Griffin Money is an act attracting the expedited procedure.
Helen Shurven
Member
16 March 2012
1
14
0