Ned Cheedy and Others on behalf of Yindjibarndi #1/ Western Australia/ Cazaly Iron Pty Ltd

[2008] NNTTA 39

NATIONAL NATIVE TITLE TRIBUNAL

Ned Cheedy and Others on behalf of Yindjibarndi #1/ Western Australia/ Cazaly Iron Pty Ltd, [2008] NNTTA 39 (4 April 2008)

Application No:         WO06/529

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

Ned Cheedy and Others on behalf of Yindjibarndi #1 (WC03/3) (native title party)

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The State of Western Australia (Government party)

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Cazaly Iron Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                   Hon C J Sumner, Deputy President

Place:    Perth
Date:     4 April 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significance – whether act likely to cause major disturbance to land or waters – existing agreement that objection be withdrawn – native title party declines to withdraw objection – no consideration of dismissal of objection on the basis of the agreement – expedited procedure attracted

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 147, 148(a), 148(b), 237

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA), s 63

Cases:Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362

Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21

Delores Cheinmora & Others  on behalf of Balanggarra Native Title Claimants/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/447, [2008] NNTTA 8 (21 January 2008), Hon C J Sumner

Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391

Jack Dann & Ors/Western Australia/GPA Distributors Pty Ltd, NNTT WO95/19, [1997] NNTTA 20 (10 June 1997), The Hon. C.J. Sumner

Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362

Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia 2007 FCA 1027

Parker v Western Australia [2008] FCFCA 23

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Ward v Western Australia (1996) 136 ALR 557

Representative of the

native title party:             Mr Michael Woodley, Juluwarlu Aboriginal Corporation

Representatives of the     Mr Matthew Pudovskis, State Solicitor’s Office

Government party:          Mr Clyde Lannan, Department of Industry and Resources

Representatives of the     Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd
grantee party:                  Mr Michael Giles, Cazaly Iron Pty Ltd

REASONS FOR DETERMINATION

1. On 5 July 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/1617 (‘the proposed licence’) to Cazaly Iron Pty 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).

2. The proposed licence comprises approximately 88.7 square kilometres located 36 kilometres westerly of Wittenoom in the Shire of Ashburton. It is overlapped at 11.26 per cent by the registered claim of the Yindjibarndi #1 (WC03/3, registered from 8 August 2003) and at 42 per cent by the Wintawari Guruma Aboriginal Corporation Prescribed Body Corporate (registered from 6 March 2007 as a result of the part determination in respect of the Eastern Guruma registered claim WC97/89).

3. On 11 July 2006 an expedited procedure objection application (WO06/304) was lodged with the Tribunal on behalf of the Eastern Guruma registered claim (WC97/89). On 24 May 2007 following some negotiations, the grantee party advised that the terms of the Eastern Guruma’s alternative heritage agreement were not acceptable and requested that the matter proceed to inquiry. On 10 August 2007 the objection application was dismissed pursuant to s 148(b) of the Act on the basis that the applicant had failed to comply with a direction issued by the Tribunal to provide contentions and evidence supporting its application.

4. On 25 October 2006 an expedited procedure objection application (WO06/529) was lodged by the Pilbara Native Title Service (‘PNTS’), the Pilbara service arm of the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) as the relevant native title representative body under the Act for its then client Ned Cheedy and others on behalf of the Yindjibarndi People (Yindjibarndi No 1) (WC03/3) who are a registered native title claimant (‘the native title party’).

5. 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.

6. At the preliminary conference on 28 November 2006, the native title party representative, PNTS, advised that the objection had been lodged on the basis that it had no record of a Regional Standard Heritage Agreement (‘RSHA’) executed by the grantee party in favour of its client. The grantee party representative reported that a RSHA had been executed and forwarded to the native title party and agreed to re-send a copy of it (‘executed RSHA’). The native title party representative confirmed that if a copy of the executed RSHA was re-sent, the objection application would be withdrawn.  Parties agreed to adjourn to the status conference scheduled for 31 January 2007.

7. At the status conference on 31 January 2007 the grantee party representative advised that he had not as yet forwarded a copy of the executed RSHA but would do so that evening. The native title party representative, PNTS, again confirmed that if a copy of the executed RSHA was re-sent, the objection application would be withdrawn. On this basis parties requested that the directions be vacated and the Tribunal approved that request.

8. At the adjourned status conference on 28 February 2007 the grantee party representative confirmed that a copy of the executed RSHA had been forwarded to PNTS on 1 February 2007. The native title party representative, PNTS, advised that the objection had not been withdrawn as the proposed licence contained Aboriginal sites registered under the Aboriginal Heritage Act 1972 (WA), and as a consequence its alternative Heritage Agreement (‘AHA’) was likely to be preferred by the native title party. The grantee party representative advised he would seek instructions but that the AHA was unlikely to be acceptable to the grantee party.

9. At the adjourned status conference on 31 October 2007, following some 12 status conferences during which parties reported attempts to negotiate an agreement, the grantee party representative advised that negotiations had stalled and that the executed RSHA was preferred.  With support from the Government party, the grantee party representative requested that directions be reinstated and that the matter proceed to inquiry. In the interim, the grantee party representative agreed to continue negotiations. Directions were reinstated requiring Government party contentions and evidence by 10 December 2007, native title party submissions by 17 December 2007, and grantee party submissions by 24 December 2007.

1. On 7 November 2007 a status conference was held at which the native title party advised a new representative had been appointed, being Michael Woodley of the Juluwarlu Aboriginal Corporation, the heritage manager for the Yindjibarndi Aboriginal Corporation Prescribed Body Corporate.  Mr Woodley advised that the native title party, being comprised of the same persons as the Yindjibarndi determined native title holders, had instructed the Juluwarlu Aboriginal Corporation to manage its heritage matters.  Mr Woodley stated that the Yindjibarndi Heritage Agreement (‘YHA’) was preferred.  The grantee party representative requested a copy of the YHA be forwarded to him to consider.  Mr Woodley advised that the YHA would not be forwarded unless the grantee party met with the native title party in Roebourne beforehand.  The grantee party representative advised that the grantee party would meet with the native title party but wished to view the YHA prior to that meeting.  Parties agreed to an adjournment to consider their positions.

2. At the status conference on 20 November 2007, the grantee party representative confirmed the request to proceed to inquiry (supported by the Government party) and advised that it would honour the executed RSHA.  The native title party agreed to proceed to inquiry.

3. The Government party lodged its contentions and evidence by 4 December 2007, the native title party on 21 December 2007 and the grantee party on 24 December 2007.

4. At the listing hearing on 10 January 2008 the native title party requested the opportunity to present oral submissions, a request that was considered by me at a listing hearing on 15 January 2008.  At that hearing, the grantee party reported that it preferred the executed RSHA dated 11 May 2006 which had been executed by the Director of YMBBMAC on behalf of the native title party and by the grantee party. The grantee party representative also advised that despite this preference, the grantee party was willing to consider any proposed changes to the RSHA or any other agreement forwarded by the native title party, but had been advised by the native title party that its YHA would not be forwarded unless the grantee party met with the native title party in Roebourne beforehand. The grantee party representative reported that the commercial expense of attending a meeting without viewing the YHA was not justified as the grantee party was a small exploration company. The native title party representative advised that the native title party no longer agreed with the executed RSHA and had developed a new process which required the grantee party to consult with the native title party in Roebourne before its YHA could be exchanged. It also requested the opportunity to provide oral evidence and an audiovisual presentation at a hearing to be convened in Perth.

5. After hearing the parties’ submissions, I adjourned the matter to consider the issues. As the Government party had reserved its decision to provide submissions on dismissing the matter pursuant to ss 147 (frivolous or vexatious), 148(a) (not entitled to deal with it) of the Act, I directed the Government to advise the Tribunal and parties of its decision by 18 January 2008 and if so, to lodge its submissions by 29 January 2008, with the native title party to reply by 8 February 2008.

6. On 24 January 2008 the Government party advised it would not make a submission regarding dismissal on those grounds, and requested that the inquiry proceed ‘on the papers’, without further hearings.

7. On 15 February 2008, after considering the issues, the following was conveyed to parties by the Tribunal:

   ‘The Tribunal has given further consideration to this matter in the light of the submissions made at the Listing Hearing [conducted on 15 January 2008 before Deputy President Sumner].

   The Tribunal is satisfied on the material before it that there is a valid agreement entered into between the native title party (Yindjibarndi #1 Claim WC03/3) and grantee party whereby the native title party has agreed not to lodge or pursue an expedited procedure objection application. The agreement is in the form of a Regional Standard Heritage Agreement negotiated between Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) (the relevant native title representative body under the Act), the WA Government and industry organisations. The agreement is dated 11 May 2006. YMBBMAC entered into the agreement as agent for the Yindjibarndi Claim Group and warrants in the agreement (para 4) that it has been authorised by them to act as their agent. The Tribunal is aware that the issue of whether to adopt the RSHA was considered by the various native title claim groups in the YMBBMAC area. On the information before the Tribunal the authorisation to YMBBMAC to adopt the RSHA was given by the native title party at a working group meeting in Roebourne on 21 June 2004.

   It was pursuant to this authorisation that YMBBMAC on behalf of the native title party entered into the agreement dated 11 May 2006.  Despite the existence of this agreement YMBBMAC lodged an expedited procedure objection application with the Tribunal on 25 October 2006.  This appears to have been a mistake as the native title party has provided no evidence to suggest that it had authorised YMBBMAC to lodge the objection.  This is not surprising as the RSHA was entered into some months before the objection was lodged.

   No challenge to the validity of the agreement was made by Mr Michael Woodley who represented the native title party at the Listing Hearing.  His only response to queries about the existence of the agreement was to say that time had moved on and the agreement no longer reflects the native title party’s current process.  The Tribunal points out that while the native title party is at liberty to change their procedures for the future, they should honour existing agreements.

   Because there is no question about the validity of the agreement, the Tribunal considers that this case is distinguishable from WO05/753 (2 June 2006 - Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, [2006] NNTTA 65) where the Tribunal proceeded to conduct an inquiry and make a determination because there was a dispute about whether the agreement had been properly entered into. In the present case validity is not in question.

   At the Listing Hearing the Government party was invited to make submissions on the further conduct of the inquiry and whether dismissal of the objection application was appropriate.  The Government party made no application to dismiss the objection on the basis of the pre-existing agreement and said the matter should proceed to a determination on the papers.

   The agreement (para 15) says that the claimant group will not object to the grant of the tenement and withdraw any existing objections.

   It is the Tribunal’s view that this objection has been lodged in clear breach of an agreement between the native title party and grantee party and should be withdrawn.  The Tribunal invites the native title party to do this.

   The Tribunal has given consideration to whether there are powers to dismiss the objection in the circumstances of the valid agreement but has concluded that the Native Title Act 1993 (Cth) (NTA) is not clear on the issue. The provisions of s 147 (frivolous or vexatious objections) and s 148(a) (not entitled to deal with the application – jurisdiction) may provide some authority to dismiss on the grounds of the pre-existing agreement but the power to do so is not explicit and may be open to challenge.

   In the absence of any submission to the contrary from the Government or grantee parties the Tribunal considers that it must proceed with the inquiry and make a determination. However, the Tribunal is of the view that the agreement effectively deals with the issues in s 237(b) of the NTA relating to interference with sites of particular significance. As a valid agreement is in place providing for an Aboriginal heritage survey to be carried out in a manner acceptable to the native title party the Tribunal considers it highly unlikely that exploration will interfere with sites of particular significance. In addition, there is the protective regime based on the Aboriginal Heritage Act 1972 (WA) which has been described on many occasions by the Tribunal which the Tribunal has often found make such interference unlikely.

   For this reason, the Tribunal considers that any evidence should be related to the issues in s 237(a) and s 237(c) of the NTA only. This means that unless there are credible reasons to the contrary put forward by the native title party the matter should be able to be determined on the papers.

   The Hon C J Sumner, Deputy President, has made the following directions (attached):

   (1)   The native title party is to consider whether the objection should be withdrawn and advise the Tribunal of its decision on or before 22 February 2008.

   (2)    If the inquiry is to proceed the native title party is to provide to the Tribunal and other parties on or before 29 February 2008 documents and other evidence (including any affidavits) in relation to the issues dealt with in s 237(a) and s 237(c) only.

   (3)   Any confidential material can be dealt with in accordance with Direction 3(b) of the original directions made on 14 November 2006.

   (4)    A further Listing Hearing will be conducted if requested by the parties or considered necessary by the Tribunal.

   (5)    If the native title party makes application and satisfies the Tribunal that an oral hearing is necessary this will occur in Perth on 7 March 2008 at 9:30am.’

8. The Tribunal provided to the parties documents which it had in its possession which confirmed that at a working group meeting in Roeburne on 21 June 2004 the native title party decided to adopt the Regional Standard Heritage Agreement.  In his evidence to the Tribunal Mr Woodley acknowledged that a RSHA had been signed on behalf of the native title party but that they now regarded it as an old document, about which they had not been consulted and that in the years since that agreement they had developed the YHA to manage and protect their heritage (Transcript, p 8).  I confirm that there is no credible evidence to suggest that the ‘executed RSHA’ is not a valid agreement and this inquiry has proceeded on that basis.

9. On 21 February 2008 the native title party submitted:

   ‘The Yindjibarndi (native title party) will not withdraw the objection, and respond to the tribunal’s decisions in the way they wish to proceed with the matter, within the framework set down by Deputy President Sumner, in the following manner:

   The Yindjibarndi will provide documents, affidavits, and other evidence in relation to s 237(a) and s 237(c) to the tribunal and the other parties by 29/02/08

   The Yindjibarndi notify the tribunal that the opportunity to directly voice their opinions is of the utmost importance. The Yindjibarndi people want to be actively, physically and materially involved in the issues that affect their heritage, community, identity, knowledge networks and country. Therefore the Yindjibarndi have directed four of their Elders, depending upon the tribunal’s judgement, to go to Perth on the 07/03/07 to speak for their country.’

10. Following the native title party’s lodgement of affidavit evidence by 29 February, a Hearing was held in Perth on 7 March 2008 at which evidence was provided in the form of an audiovisual presentation and oral evidence by Mr Woodley, Mr Thomas Jacobs, Ms Charmaine Adams and Ms Maudi Jerrold.  No oath or affirmation was administered to the witnesses but an understanding sought from them that they would tell the truth.  The Government and grantee parties were given leave to cross examine the native title party’s witnesses but declined to do so.

Legal principles

1. 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.’

1. 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.

2. 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.

3. 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.  An appeal by the native title party against this judgment was rejected by the Full Federal Court on 7 March 2008 (Parker v Western Australia [2008] FCFCA 23 Moore, Branson and Tamberlin JJ).

Native title party contentions

1. The native title party has made some contentions on the law which require comment.  First, it says that the Tribunal should follow the law in Jack Dann & Ors/Western Australia/GPA Distributors Pty Ltd, NNTT WO95/19, [1997] NNTTA 20 (10 June 1997) and that the 1998 amendments to the NTA did not affect the principles enunciated in this decision. This submission cannot be accepted. In a very important respect, the 1998 amendments altered the law by requiring the Tribunal to make a predictive assessment based on the likelihood or otherwise of the interference or disturbance referred to in s 237 occurring. It is no longer the law that the issue is to be determined on the basis of what might occur if a grantee party exercises to the full all the rights given to it by the grant of an exploration licence (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 448-450, ([19]-[23]).

2. Second, the native title party makes a submission in relation to s 237(a) which is still commonly made by native title parties in objection inquiries but which is no longer the law. The native title party says that the words in s 237(a) should be construed as not limited to mere physical activities and should be construed as including activities with a spiritual dimension that may be directly interfered with, without any physical interference. In support of its contention the native title party relies on the statement of Carr J in Ward v Western Australia (1996) 136 ALR 557 at 572 that:

   ‘…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 kilometers 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.’

3. Since the insertion of the words ‘the carrying on of the community or social activities’ for ‘community life’ in s 237(a) the statement of Carr J based as it is on the Act before the 1998 amendments is no longer applicable. I adopt my findings in Delores Cheinmora & Others  on behalf of Balanggarra Native Title Claimants/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/447, [2008] NNTTA 8 (21 January 2008), Hon C J Sumner at [26]. The applicable law is explained in Walley at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1. The s 237(a) interference must have some negative consequences for the carrying on of community or social activities. Activities which are a physical manifestation of spiritual connection to the land can fall within the definition but feelings of concern or distress about exploration activities are not on their own sufficient.

Evidence in relation to the proposed act

1. Government party documentation establishes the following notable underlying land in relation to the whole of the proposed licence area:

• Crown Reserve 30082 National Park (43.2 per cent overlap)

• Hamersley Pastoral Lease 3114/1277 (32.8 per cent overlap. Overlap subject to exclusion upon renewal in 2015 for the Department of Environment and Conservation, but reverting to unallocated crown land in the first instance)

• Four vacant crown land parcels (totalling 18.5 per cent overlap)

• Mt Florence Pastoral lease 3114/465 (5.5 per cent overlap. Overlap identified as CPL/3 purchased by the Department of Environment and Conservation for conservation of flora and fauna)

The above tenure (totalling 100 per cent) is also subject to:

• National Estate Registered Site 10129 (21.1 per cent overlap)

• Three Threatened Ecological Community Buffer Zones (totalling 9.5 per cent overlap)

• Department of Industry and Resources s19 area (43 per cent overlap and exempt from mining activities as defined under s19 of the Mining Act)

1. Mapping provided by the Tribunal’s Geospatial unit shows the underlying tenure over that area of the proposed licence overlapped by the native title party’s claim to be Mt Florence Pastoral Lease (identified by the Government party as CPL/3 purchased by the Department of Environment and Conservation for conservation of flora and fauna) and unallocated Crown Land.

2. Government party documentation also shows the proposed licence area is overlapped by two ‘live’ exploration licences totalling 4.6 per cent, one ‘live’ amalgamated licence at 1.5 per cent, one ‘pending’ prospecting licence at 0.9 per cent and three ‘pending’ mining leases totalling 1.2 per cent. Recent ‘dead’ tenements include two exploration licences granted in 1996, surrendered in 1998 and 2003 overlapping at 0.3 and 52 per cent respectively, and one granted in 1982, expired in 1990 overlapping at 0.2 per cent.

3. 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:

• No interference with Geodetic Survey Stations HRE 81-83 and Mount Bruce 153 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 5)

• Notifying the holder of any underlying pastoral or grazing lease of activities or transfers of licence (conditions 6-7)

• In respect to the area designated as CPL/3, prior to any ground disturbing activity, the preparation of detailed programme for each phase of exploration for approval by the Director, Environment DoIR and rehabilitation of all areas cleared, explored or otherwise disturbed to the satisfaction of the Director, Environment, DoIR (conditions 8-10)

1. The following relevant Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed on the proposed licence:

• The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder, 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 land the subject of this licence may affect a Threatened Ecological Community. The licensee is advised to contact the Department of Conservation and Land Managements (now Department and Environment and Conservation) Threatened Species and Communities Unit for detailed information on management.

1. The Government party 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 Yindjibarndi People, the applicants in Federal Court application no. WAD 6005 of 2003 (WC03/3), such request being sent by pre-paid post to reach the Licensee’s address c/- McMahon Mining Title Services, Post Office Box 8638, 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 Yindjibarndi People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Pilbara Native Title Service.’

2. The effect of this condition was described by the Tribunal in Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [15]-[35] (‘Champion’) but on the facts of this case it is of little relevance because of the executed RSHA.

3. The Government party documentation notes there are no Aboriginal communities in the vicinity of the proposed licence.

4. The Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) documents four registered sites within the proposed licence. Mapping provided by the Tribunal’s geospatial unit shows that two of the registered sites are located within the area overlapped by the native title party’s claim being:

• 6614 – Rio Tinto Gorge, artefacts/scatter, rockshelter, permanent register, open access

• 11267 – Hamersley Gorge, ceremonial, artefacts/scatter, waters source, interim register, open access

1. In support of its contentions the grantee party submitted the executed RSHA dated 11 May 2006 signed by the Director of YMBBMAC on behalf of the native title party and by the grantee party. Also submitted was a work programme with a map for the proposed licence showing proposed exploration over the majority of the area overlapped by the native title party’s claim.

2. In support of its contentions, the native title party’s submissions include the affidavits of Mr Stanley Warrie, Ms Charmaine Adams, Ms Maudi Jerrold, Mr Michael Woodley and Mr Thomas Jacobs dated 29 February 2008 and identical in terms as follows:

   ‘1.I am an Yindjibarndi person, knowledgeable and acknowledged in the Law.

   2.I am authorised to affirm this affidavit on behalf of the Yindjibarndi people.

   3.My country is Yindjibarndi country and I have been associated with the area in question all my life. My Yindjibarndi Elders have taught me all about that country and I can speak for it as an Yindjibarndi person. I know about the Yindjibarndi places within the claim area.

   4.As an Yindjibarndi person who strongly upholds my culture, I have responsibilities. If I don’t uphold my responsibilities then my country makes me answer for it. It is my responsibility to look after the country that I have been given by my Elders because of who I am. My country, my family, my law are connected forever – there is no way I can get away from that responsibility – that is why, even though I don’t physically live on this tenement, it is still a part of me - it is up to me to look after it – it is my cultural law that dictates this to me – that country makes up my identity – that is who I am – I am just a much a part of it, as it is of me

   In the old days my parents, grandparents, uncles, aunties, skin group and all those people, animals and plants that make up my family were able to live on that country. But these, my fundamental human rights, were denied to me because we were forced off and removed from our homelands and were made to live in the reserves set aside for us – this was not our choice – my people had been living on that land for thousands of years. We understand that place like no-one else – we know the names of the animals, the plants, the thalu sites, the rivers, the birds, the caves — we know where to camp and where the dangerous places are for men, women and children. We have a special relationship with that country which we are born with and take with us when we die – it is my privilege and my burden.

   What we are asking for is respect – we want this company to come and speak to us before they go onto our country and potentially destroy those places that we are responsible for. We want to be involved in the process. We don’t accept the heritage agreement that was signed on our behalf because we did not know anything about it – we need to discuss the proposal in a community meeting. By Cazaly going onto my country without the whole Yindjibarndi community knowing and being allowed to voice their opinion, then we are being disrespected, our knowledge of that country is not being valued, and our involvement is being denied.

   We want all proponents to directly talk to us – we want to voice our opinion and understand the process. We need to be respected in the same way that we respect our Ngurra – our country. The problem is we can only give our land and heritage away once to developers who prosper – if we get it wrong the first time then it can never be rectified and once again we Yindjibarndi lose. We are the ones that will have to live with our mistake and disrespect for eternity – any disturbance on our country has physical and mental consequences for us, because of our total connection to the land – it doesn’t matter if we don’t live there or not – we are there spiritually all the time – our people, our ancestors inhabit every part of the country through eternity, just as we will – it is up to us to protect the diversity – if we don’t we have to pay for it forever.

   5.We are asking that Cazaly respect us, come to see us and to sign a new heritage agreement – an Yindjibarndi Heritage Agreement (YHA) that reflects our involvement – the old days where nobody took notice of the ‘poor black fella’ should be gone – we need Cazaly to respect our wishes – come and see us – do the right thing – if they do that then there won’t be a problem – we will know that they are prepared to do the right thing.’

3. The evidence of Mr Stanley Warrie, Ms Charmaine Adams, Ms Maudi Jerrold, Mr Michael Woodley and Mr Thomas Jacobs is uncontested and I accept it.  The native title party’s claim application notes Mr Jacobs and Mr Woodley as two of the persons comprising the native title party Applicant.  I accept that all have authority to speak on behalf of the native title party.

Community or social activities (s 237(a))

1. 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 (Smith at 448-450, ([19]-[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])).

2. At the hearing the grantee party provided evidence of its intentions.  It confirmed its intention to comply with relevant legislation, regulations and conditions imposed in particular under the Mining Act and Aboriginal Heritage Act.  It will comply with the terms of the executed RSHA.  Exploration in the first two years will be low impact mapping which may involve some off-road vehicular access.  Any drilling would occur after the first two years depending on the results of the initial exploration.  This would involve a truck and drilling rig and may need tracks and other ground disturbing work to be done.  There is no intention to costean (i.e. to dig trenches).  According to Mr Michael Giles, the exploration manager for Cazaly, costeaning, if necessary, is done with a backhoe or excavator and may involve digging a trench of a metre to metre and a half depth and commonly 50 to 100 metres in length.  I accept Mr Giles evidence that costeaning is not contemplated. In 15 years of mineral exploration experience he has never dug one because there are now better techniques available. I also accept that removal of up to 1000 tonnes of material (being the prescribed limit under s 66(c) of the Mining Act) is not likely to happen.  Drilling or making of tracks would not be regarded as low impact exploration under the executed RSHA and its site survey provisions would become applicable.  Under Standard Condition 4 permission from the Environmental Officer, Department of Industry and Resources will be necessary if this type of exploration is to occur.

3. In this matter, the area of the proposed licence overlapped by the native title party’s claim has not been subject to extensive mining or exploration activities. The majority of the area is unallocated crown land and the remainder a pastoral lease purchased by the Department of Environment and Conservation for the conservation of flora and fauna, suggesting little impediment to any community or social activities of the native title party.

4. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.

1. At the hearing on 7 March 2008 the native title party provided some limited oral and audiovisual evidence relating to community and social activities in the general area of the proposed licence notably camping, hunting, fishing, and collection of bush medicine. No specific evidence was provided regarding the frequency and nature of activities within the proposed licence area itself.  Some of the evidence clearly related to areas outside the proposed licence area. 

2. As no specific evidence was provided regarding the frequency and nature of activities within the proposed licence, I cannot find that community or social activities are likely to be directly interfered with by the grant of the proposed licence and activities carried out pursuant to them.  There is no evidence of members of the native title party living near the proposed licence and no established physical communities of claim group members in the immediate vicinity.  Most of the native title party live in Roebourne some 200 kilometres north of the proposed licence.

1. The native title party’s claim overlaps the proposed licence area at 11.26 per cent being approximately 10 square kilometres.  The grantee party’s access to the area would be limited to the area in which exploration is taking place and temporary.  I note that the grant of the proposed licence does not confer exclusive rights of access on the grantee party and any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wider area over which any hunting or gathering may occur.  The Yindjibarndi Claim #1 covers an area of approximately 2,778 square kilometres and the Yindjibarndi determined area approximately 10,320 square kilometres over which it may enjoy its native title rights and interests and carry out community or social activities in relation to them.  In this context the proposed exploration activity is not likely to amount to a substantial interference with the native title party’s community or social activities.

2. I accept the native title party’s evidence contained in their affidavits and supplemented by oral evidence. The native title party’s connection to country and responsibility for it according to traditional law and customs are not in dispute in these proceedings. Mr Woodley said (Transcript p 27) that any impact on country whether low, medium or high impact should not occur without the involvement of Yindjibarndi people and that nothing should be touched without the permission of the Traditional Owners. However, under s 237 of the Act this general responsibility does not translate into an automatic right to prevent mining exploration unless the native title party agrees to it. The task of the Tribunal in these proceedings is confined to considering whether on the evidence before it the proposed exploration activity is likely to result in interference or disturbance of the kind referred to in s 237. The evidence in this matter does not support a finding of this kind.

Sites of particular significance (s 237(b))

1. On the predictive assessment approach the Tribunal is required to determine whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35).

2. The native title party accepted the Tribunal’s ruling referred to in para [16] that the executed RSHA should be enough to ensure that there is no likelihood of interference with sites of particular significance and that the inquiry would be concerned with issues arising only under ss 237(a) and 237(c) of the Act. Even so, as some of the native title party’s evidence and submissions dealt with this issue (particularly the contention that low impact exploration should involve negotiation with the native title party and not be permitted to occur unless there was agreement from them) I make the following findings.

3. I confirm that in my view a combination of the following factors means that s 237(b) interference is not likely to occur.

• The existence of the regulatory regime to protect Aboriginal sites based on the Aboriginal Heritage Act described in Maitland Parker.  If the two sites on the Register are of particular significance to the native title party (and the evidence is not clear about this), their existence is known to the grantee party and it would be committing an offence if it interfered with them without following the procedures in the Aboriginal Heritage Act.

• The intentions of the grantee to comply with all relevant legislation, including that relating to the protection of Aboriginal sites.

• The existence of the executed RSHA which will require the grantee party to give the native title party notification of its exploration program and conduct a site survey if more than low impact activity is contemplated will be adequate to identify any other sites (including ones of particular significance) within the area of the proposed licence that is overlapped by the Yindjibarndi #1 claim.

Major disturbance to land and waters (s 237(c))

1. Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely to involve major disturbance to land or likely to create rights whose exercise are likely to involve major disturbance to land. The Tribunal applies the law as enunciated by the Full Federal Court in Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 and more recently in Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 (5 December 2005). The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.

2. The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place.  It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land.  In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (Champion at [77]).

3. In making a finding on this point I have had regard to the fact that there are no Aboriginal communities in the vicinity; the presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities; the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4); further conditions imposed relating to approval of activities and subsequent rehabilitation of Mt Florence pastoral lease (CPL/3 purchased by the Department of Environment and Conservation for conservation of flora and fauna relating to rehabilitation); and the endorsements in relation to the threatened Ecological Community Buffer Zones, the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004. While some of this area is likely to be environmentally sensitive I do not consider that what the grantee party intends by way of exploration (i.e. no costeaning or bulk sampling) will involve major disturbance to land. I find that there is not likely to be major disturbance to land or waters in this case.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E47/1617 to Cazaly Iron Pty Ltd is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President
4 April 2008