Oriole Resources Ltd/State of Western Australia /Albert Little and Ors on behalf of Badimia
[2004] NNTTA 37
•3 June 2004
Reported at (2004) 189 FLR 240
NATIONAL NATIVE TITLE TRIBUNAL
Oriole Resources Ltd/State of Western Australia /Albert Little and Ors on behalf of Badimia [2004] NNTTA 37 (3 June 2004)
Application No: WO03/508
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
Albert Little and ors on behalf of the Badimia People (WC96/98) (native title party)
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The State of Western Australia (Government party)
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Oriole Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: The Hon. E.M. Franklyn QC, Deputy President
Place: Perth
Date: 3 June 2004
Catchwords: Native title – future act – proposed grant of miscellaneous licence – expedited procedure objection application – Objector relies on third limb of s 237 – no evidence of concerns etc of aboriginal communities that exercise of rights is likely to involve major disturbance – proposed licence in area of considerable mining/exploration activity – act attracts the expedited procedure.
Legislation: Native Title Act 1993 (Cth), ss 237(a), (b), (c), 29, 31, 141, 109
Mining Act1978 (WA), ss 29(2), 63
Cases: Wonyabong on behalf of the Tjupan People v State of WA [1996] 134 FLR 462
Nyungah People v State of WA and Empire Oil [1996] 132 FLR 54
Ward v Western Australia (1996) 69 FCR 208
Dann v WA (1997) 144 ALR 1 and 74 FCR 391
Hearing dates: 5 September 2003; 29 September 2003; 26 March 2004.
Counsel for the Ms Carolyn Tan, Yamatji Land and Sea Council Aboriginal
native title parties: Corporation
Representative of the Yamatji Land and Sea Council Aboriginal Corporation
native title parties:
Representative of the Mt Gibson Mining Pty and Mr Chris Clegg, Statewide Tenement
grantee party: and Advisory Services Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DETERMINATION
On 21 May 2003, the Government party (“The State”) gave notice under s 29 of the Native Title Act 1993 (Cth) (“the Act”) of a future act namely the grant under the Mining Act 1978 of Miscellaneous Licence L59/53 (“The Licence”) for “Mine Site accommodation and associated facilities” comprising 119.96ha to Oriole Resources Ltd. The notice included a statement that the State considered the Act to be an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
An objection to the application of the expedited procedure in relation to The Licence was lodged by the Yamatji Land and Sea Council on behalf of the Badimia People (“the objector”) on 8 July 2003. The objector’s Application for Determination of Native Title (WC96/98) was registered by the Tribunal on 4 October 1996. The land encompassed by The Licence is situated wholly within this claim area. The objection revealed the objector to rely only upon s 237(c) of the Act and that it would produce historical, anthropological, archaeological, genealogical, linguistic and environmental evidence in support of the objection.
The Tribunal accepted the objection on 29 July 2003 and issued directions to be complied with by the parties. At the time, directions in respect of objection matters lodged by the Yamatji Land and Sea Council (YLSC) and Pilbara Native Title Service (PNTS) provided for a greater length of time for compliance to allow the grantee and Native Title party to negotiate in respect of the implementation of Standard Regional Heritage Agreements. However, all grantees were given the option of having the objection application dealt with more expeditiously if so required.
Directions
The Directions issued on the 29 July provided for the lodgment by each party with the Tribunal and service on the other parties of their respective Contentions, Statements of Evidence (verified where possible by affidavit) and other documents and material to be relied on by them respectively. They required compliance by the State by 12 January 2004; by the native title party by 4 February 2004 and by the grantee party by 11 February 2004. They also provided for a Listing Hearing to be held on 19 February 2004; for liberty to the parties to apply to vary the Directions; and drew attention to the provisions s 141 of the Act (which renders the objection subject to dismissal for failure by the objector within a reasonable time to comply) and required that, as far as practicable, the parties were to provide evidence in documentary form. They also made provision for the preservation of confidentiality for documents of a confidential nature.
On 16 September the grantee’s representative advised in writing, copied to the other parties, that the beneficial owners and the ultimate holder of the Licence was Mt Gibson Gold Pty Ltd (a wholly owned subsidiary of Oroya Resources Ltd), that it has the carriage in relation to the objector’s application on behalf of the grantee and wished the matter to proceed to inquiry without further delay.
At an adjourned preliminary conference held on 30 September 2003 the grantee’s representative again requested that the matter proceed immediately to inquiry and that the dates set for directions compliance be brought forward. The objector’s representative requested that compliance dates remain as originally set and made submissions as to the difficulties the objector faced in compliance. In particular, the objector’s representative pointed to a lack of financial resources to obtain instructions in this matter, the unavailability of the objector as a consequence of its engagement in law business and his own unavailability on annual leave.
At a status conference convened on 17 December 2003 it was confirmed that Directions compliance dates would remain as set on 29 July 2003.
On 7 January and 4 February 2004 the State and objector duly complied with the Directions. On 5 February 2004 the grantee representative requested an amendment to the directions compliance dates to allow a further 14 days for lodgement of its statement of contentions. The basis of this request was the need for the grantee to obtain legal advice prior to addressing the issues raised in the objector’s statement of contentions. This request was opposed by the objector’s representative, who, in an electronic submission on 6 February 2004, requested that this matter proceed to inquiry. The State responded in support of the grantee party representative’s request on 6 February 2004.
The grantee representative’s request was referred to Deputy President Sumner, the Member appointed to constitute the Tribunal at the time. Parties were afforded the opportunity to make further submissions or to be heard on this issue. Further submissions were made by the objector and grantee party representatives on 9 February 2004. After considering all the material before the Tribunal, Deputy President Sumner approved the grantee party representative’s request and directed compliance by it on or before 25 February 2004.
The grantee party complied with the amended directions on 25 February 2004.
Inquiry
On 16 February 2004 I was appointed Member to constitute the Tribunal for the purposes of this inquiry. As the objector’s representative had requested the opportunity to make oral submissions to the Tribunal in relation to “issues raised by the grantee party’s documents and contentions” I convened a Listing Hearing on 26 March 2004 and requested the objector’s representative to provide the Tribunal and other parties with an outline of the issues intended to be raised at the Listing Hearing, to be there dealt with.
On 22 March 2004, the objector’s representative provided its submission on the issues which was circulated to the other parties.
Shortly before the Listing Hearing on 26 March 2004 the grantee party’s representative made a supplementary submission addressing the points raised in the objector’s submission of 22 March 2004. The objector’s representative opposed admission of this document on the grounds that it had not been afforded adequate opportunity to consider its content.
On 26 March 2004 I made further Directions affording the objector the opportunity to consider the grantee representative’s supplementary submission and make submissions in respect thereof, such submissions to be submitted to the Tribunal and served on the other parties on or before 2 April 2004. Further submissions by the objector’s representative were received on 2 April 2004.
At the Listing Hearing on 26 March 2004, all parties agreed that the matter could be adequately determined on the papers. I am satisfied that this matter can be adequately determined by considering, without holding further hearings and in the absence of the parties, the documents and other material lodged with or provided to the Tribunal.
Material Provided by the State
The State contends that the grant of the Licence will not give rise to any of the issues raised by s.237 (a), (b) and (c) of the Act. It refers to the provisions of s. 20(5) of the Mining Act 1978 (WA) as they apply to pastoral leasehold land, to the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA), to the standard conditions which will apply to the grant as set out in the schedule attached to its contentions and to the conditions that are imposed on the grant by s.63 of the Mining Act 1978 (WA). It states that the grant will include an endorsement drawing the grantee’s attention to the provisions of the Aboriginal Heritage Act 1972 (WA).
The material provided by the State pursuant to the Directions reveals, inter alia, the Licence to be situated within the Mt Gibson pastoral lease (PL398/616) vested in Australian Wildlife Conservancy. The Licence also overlaps a General Lease (GE1288242) that is also vested in Australian Wildlife Conservancy, and unvested reserve land designated as a Common (Res 17367). The material also reveals that no Aboriginal community is located in the vicinity that there are no sites registered under the Aboriginal Heritage Act or reports of sites identified in respect of the land the subject of the Licence and that the following tenements have been applied for or granted previously over all or part of the Licence:
Exploration Licence 59/876; applied for on 27 March 1998 and listed as “Pending”;
Exploration Licence 59/1038; applied for on 24 November 2000 and listed as “Pending”;
Miscellaneous Licence L59/12; application granted on 16 April 1986;
Miscellaneous Licence L59/45; application granted on 27 February 1997;
Exploration Licence 59/517; application granted on 25 November 1993 and surrendered on 23 November 2000; and
Exploration Licence 59/856; application withdrawn prior to grant on 21 May 1998.
The topographical map provided by the State pursuant to the Directions shows that, to the geographic limits of the mapping provided, virtually all available land north, south and east of the Licence lies within past, current or pending mining and exploration tenements. Unfortunately, apart from those tenements detailed above, the information provided by the State does not distinguish between applications which were never granted and licences which have expired or been surrendered. However, the information does reveal a considerable history of exploration and mining in and surrounding the area of the Licence. It also reveals that land the land the subject of “Pending” Exploration Licence 59/1038 was formerly the subject of an Exploration Licence Application E59/517 granted in November 1993 and surrendered on 23 November 2000, which tenement overlapped the whole of the Licence as does pending Exploration Licence 59/1038 and that, the land to the East, North West and South West of the Licence has been or is the subject of granted and pending tenements and tenements either expired, surrendered or withdrawn.
Material Provided by the Native Title Party
The objector’s submissions including those of 2 April 2004 relate only to the third limb of s 237(c), that is, that the act is “likely to … create rights whose exercise is likely to involve major disturbance to any land or waters concerned”. The objector contends that the grant of the Licence will permit the grantee to construct mine site accommodation and associated facilities over the whole of the area of the licence, that such facilities can occupy an extensive area and involve the erection of buildings likely to remain in place for the duration of the mine, the likelihood of major disturbance to land within the Licence is the inevitable consequence. The objector refers to Wonyabong on behalf of the Tjupan People v State of WA [1996] 134 FLR 462 and Nyungah People v State of WA and Empire Oil [1996] 132 FLR 54 in support of their contentions. Each of these decisions was a Tribunal decision. In Tjupan the Tribunal took evidence on country from the Aboriginal community members on or near the country the subject of the various licences. That evidence included that of the story line of Dreamings, concern for the preservation of cultural values in features of the country, Dreamings which were understood to explain the evidence of the lake system and landscape features, the formation of hills, water holes and natural wells. The proposed 13 tenements extended in the form of a band, some intersecting lakes, others being on lands with intermittent stream lines. There were 216 registered Aboriginal sites within the area of the 13 proposed tenements. The people’s concern included interference with community life and the impact in respect of the right to take water. In making his finding in respect of the 2 Miscellaneous Licences the Tribunal Member took into account that land include “air space above and subsoil under” the surface The licences would involve digging of trenches, the laying of pipeline together with powerlines and road to service the same and associated bores. One of the 2 licences was to cover approximately 60 kilometres and the other “a somewhat less distance”. Having commented on these matters the Tribunal followed Carr J in Ward v Western Australia (1996) 69 FCR 208 in finding that “major disturbance” was to be considered according to the standards of the broader community” and found the grant of the Miscellaneous Licences and exercise of the rights under them was likely to involve major disturbance according to those standards. In so doing the Tribunal Member made no reference to the evidence of the native title party, which, it would seem, played no part in his finding. In Nyungah it seems no evidence was produced by or on behalf of the native title party which relied only on submissions made to the Tribunal. The proposed future act was the grant of petroleum licences. The Tribunal concluded that s 237(c) required an assessment of the likelihood of major disturbance of the particular land resulting from the proposed act judged by “the standards of reasonable people in the broader community”. It found it to be “likely that the clearing of seismic lines by bulldozer blade over lengths of many kilometres will occur in the State Forests in these areas and that “reasonable members of the broader community would regard this sort of clearing as a major disturbance to that land”.
In Dann v WA (1997) 144 ALR 1 the Full Court of the Federal Court held that the expression “major disturbance” in s 237(c) must be given its ordinary English meaning. Wilcox J pointed out that “major” is an adjective of degree in respect of which the Tribunal must make a value judgment, considering the matter of degree from the viewpoint of the community generally. The effect of the disturbance on local people is particularly important. If it will have a significant impact on Aboriginals who live or use the affected area, that might be significant to warrant a finding that it will constitute a major disturbance (Wilcox J at 4-5). Tamberlin J pointed out that it is the degree of disturbance authorised by the legal act of granting the licence that is the relevant issue. He concluded that in applying the words to the facts of any particular case, it is the function of the Tribunal to consider all of the relevant evidence placed before it and then to determine whether any disturbance can be properly characterised as “major”; that the proper course is to take into account the concerns of the Aboriginal community including matters such as community life, customs, traditions and cultural concerns, but that the importance and weight to be assigned to the views and concerns of native title holders will vary according to the circumstances and evidence adduced (Tamberlin J at 10-11). Nicholson J found that it is the existence of rights having the potential to involve major disturbance in which s 237(c) is directed, that the expression is to be given its ordinary meaning as understood by the whole Australian community including Aboriginal people. He went on to say “There is nothing in the section to preclude Aboriginal people raising under this paragraph matters which they consider touch on the issue of major disturbance….”, (Nicholson J at 21-22).
The only evidence produced by the objector in support of its objection is an Affidavit of Mr Cedric Davies, a geologist employed by the YLSC, sworn 14 February 2004, the contents of which are set out hereunder. Mr Davies deposes to his qualifications as a geologist, that he has experience in mining and minerals exploration at named areas in Western Australia and experience in engineering geology and environmental geology in Britain and Western Australia. He deposes to having resided at various mine site accommodation facilities associated with mining operations, commonly known as “mining camps” and lists the facilities included at each such mining camp. He annexes photographs of an unnamed mining camp where he has worked showing the mining camp, a donga where the staff stay and a recreational cricket facility, which photographs are from a public document entitled “The Big Bell Story” produced by ACM Gold Mines Pty Ltd and Placer Pacific Ltd.
Material Provided by the Grantee Party
The Grantee’s Contentions state that the beneficial owner of the grantee’s application is Mt Gibson Gold Pty Ltd, a wholly owned subsidiary of Oroya Mining Limited, the owner and operator of the Mt Gibson Gold Project. It says that the grantee is a “related entity” of Pacmin Mining Corporation (“Pacmin”) and that in support of the application for the Licence Pacmin has filed a Statement with the Mining Registrar that the Licence will be for the sole purpose of “mining camps infrastructure associated with Mount Gibson Gold Mine”, that the campsite consists of transportable unit accommodation structures, transportable house structures and associated facilities which facilities have been in place for a number of years and associated with the Mount Gibson Gold Mine operation. The Grantee states that those existing facilities are and for some years have been on land the subject of Miscellaneous Licence 59/12 comprising 8.75 hectares, granted on 26 August 1986, currently registered in the name of Mt Gibson, and that the land the subject of the Licence application includes the whole of the land the subject of Miscellaneous Licence 59/12. Its says that Miscellaneous Licence 59/12 contains the substantive mining camps and accommodation to support the reconditioning of operations within the existing defined resource areas the subject of previous mining operations and will accommodate up to 106 personnel. The Licence is required for associated support infrastructure including a possible powerline easement, access tracks for construction of protective fire breaks in compliance with the Bushfire Act 1954 and rubbish disposal in compliance with the Health Act 1911 and Local Authorities By Laws. It states that Mt Gibson does not propose construction of any further substantive infrastructure or other works within the boundaries of the Licence other than those referred to above and that it intends to surrender Miscellaneous Licence 59/12 on grant of the Licence and for that reason requires the Licence to be for the purposes sought, pointing out that under s 94B the Mining Act, on surrender of Miscellaneous Licence 59/12 the 8.75 hectares over which it is granted will continue to be subject of the Licence and so available for the purposes of mine site accommodation and associated facilities, as it presently is. The grantee further contends that, contrary to the objector’s submission, it is not possible to generalise regarding the extent of likely disturbance at a particular mine site from experience at others, as each project is unique. Lastly, the grantee contends that the decision of the native title party not to submit anthropological, archaeological or ethnographic evidence in support of the objection application represents a fundamental flaw in the construction of their contentions and renders the arguments advanced purely academic.
In support of its Contentions the grantee relies on an Affidavit of Mr Timothy James Coates, the Executive Director of Oroya Mining Limited sworn 25 February 2004. He deposes as to his qualification and his experience in and with mining companies. He supports the statements of fact made in the grantee’s Contentions and that Mt Gibson Gold Pty Ltd has filed Notice of Intent with the Department of Industry and Resources (DoIR) for recommencement of Mining on Mining Leases 59/14 to 59/16, General Purpose Leases 59/11 to 59/15 and Miscellaneous Licences 59/12 and 59/45. He deposes (supported by correspondence annexed) that the Environmental Officer of the Department of Industry and Resources has advised Mt Gibson Gold Pty Ltd that he intends recommending that the recommencement of mining the subject of the Notice of Intent be approved subject to conditions requiring Unconditional Performance Bonds and further conditions being imposed on Miscellaneous Licence 59/12 and 59/45 directed to minimising disturbance and rehabilitating damage to the land.
Findings
I have considered the supplementary submission made by the grantee party on 26 March 2004, and response submitted by the native title party pursuant to my Directions of the same date. It is my view that neither makes a substantive contribution to the issues for determination in this matter.
As already mentioned the meaning of ‘major disturbance” in s.237(c) was considered in Dann v Western Australia 144 ALR1 and 74 FCR 391. The question of whether there is a likelihood of major disturbance is to be determined by the Tribunal from the viewpoint of the general community but taking into account the views and concerns of the local community as disclosed by the evidence. The objector relies solely on the third limb of s 237(c) of the Act contending that “the grant of the Licence will create rights whose exercise is likely to involve a major disturbance to the land and will give rise to activities which will constitute a major disturbance by the standards of the whole Australian community and in the eyes of the Aboriginal community as a whole”. In my opinion the reference to a major disturbance giving rise to a major disturbance adds nothing and is unhelpful. If it is intended to refer to authorised activities which are not likely to cause major disturbance to the land or waters but which may cause disturbance to people by way of perception, in my opinion it is not the subject of s 237(c).
The objectors have produced no evidence as to the views or concerns of the Aboriginal people in respect of the land the subject of the proposed licence as to the exercise of rights created by its grant. Nor have they produced any such evidence in respect of any tenement, past or present, in the area as to the exercise of rights conferred by its grant. There is no evidence of any use of, or customs or traditions relating to, the land. There is evidence that there are no Aboriginal communities on or in the vicinity of the Licence and no evidence of the existence of any areas or sites on the land the subject thereof, of “particular” significance or otherwise. There is no evidence to lead to an inference on reasonable grounds that any disturbance which may result from the grant and the exercise of rights thereunder is or would be considered by them as a major disturbance. There is no evidence of what the impact of the exercise of any such rights may have on them or as to concern as to any impact. The grantee contends that the Licence is required for “associated support infrastructure” including a possible powerline easement, access tracks for construction of adequate protective fire breaks and rubbish disposal and that it does not propose construction of any further substantive infrastructure. It is clear however that the Licence, if granted, will increase very considerably the areas available for “mine site accommodation and associated facilities”, which at present is limited to the 8.75 hectares the subject of Licence 59/12, and in respect of the enlarged area will permit it “to do such matters and things as are specified in the licence”. (Mining Act 1978 s 91(B)(b)). It follows that the grant will create rights whose exercise may involve major disturbance. There is however no evidence of any concern on the party of the Aboriginal people in respect thereof other than the assertions in the contentions. In my opinion such assertions, in the absence of supporting evidence, do not establish the matters asserted. It is of some significance that there is no evidence to suggest that the construction and use of the existing mining camp, accommodation and associated facilities on Miscellaneous Licence 59/12, or any thing else done under its authority, are considered by the Aboriginal people to be a “major disturbance” or that they have any concerns whatever about the same. The evidence produced by the State reveals the proposed Licence to be within an area where there has been, and is, considerable mining and exploration activity and that the whole of the proposed Licence was formerly the subject of Exploration Licence E59/517 granted in November 1993 and surrendered 11 November 2000 and is presently the subject of “pending” Exploration Licence E59/108.
On the available evidence I am satisfied that the Australian community as a whole, in the absence of any evidence of the concerns (if any) and views of the Aboriginal people in the locality, would consider the grant of the Licence and the exercise of the rights created thereby to be no more than another aspect of the conduct of the Mining and Exploration Industry in an area, presently and over many years the subject of considerable mining and exploration activity and that whilst the exercise of such rights will result in or involve disturbance to the land, in all of the circumstances it is not likely to involve “major” disturbance or to create rights whose exercise is likely to involve major disturbance in the ordinary meaning of that expression.
Determination
The determination of the Tribunal is that the grant of Miscellaneous Licence L59/53 to Oriole Resources Ltd is an act attracting the expedited procedure.
Hon E M Franklyn QC
Deputy President
3 June 2004
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