Peregrine Resources Pty Ltd and Another v Raymond Ashwin and Others on behalf of the Wutha and Another

[2014] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Peregrine Resources Pty Ltd and Another v Raymond Ashwin and Others on behalf of the Wutha and Another [2014] NNTTA 59 (20 June 2014)

Application No:        WF2013/0011

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

Peregrine Resources Pty Ltd (grantee party/applicant)

- and -

Raymond Ashwin and Others on behalf of Wutha (WC1999/010) (first native title party)

- and -

Evelyn Gilla and Others on behalf of the Yugunga-Nya People (WC1999/046) (second native title party)

- and -

The State of Western Australia (Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:  James McNamara, Member
Place:  Brisbane
Date:  20 June 2014

Catchwords:             Native title – future acts – application for a determination in relation to an exploration licence – s 39 criteria considered – effect on registered native title rights and interests – effect of acts on sites or areas of particular significance – interests, proposals, opinions or wishes of native title party – economic or other significance of act – public interest in doing of act – any other matters the Tribunal considers relevant – determination that the act may be done

Legislation:Native Title Act 1993 (Cth), ss 26D, 29, 30, 30A, 31, 35, 36, 38, 39, 109, 151, 237

Mining Act 1978 (WA), ss 57, 61, 63, 63AA, 66

Mining Regulations 1981 (WA), reg 20, 21, 23AB

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18, 62

Environmental Protection Act 1986 (WA)

Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), reg 5

Cases:Adani Mining Pty Ltd/Jesse Diver & Ors on behalf of the Wangan and Jagalingou People/State of Queensland [2013] NNTTA 30 (‘Adani Mining v Diver’)

Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387; [2008] NNTTA 38 (‘Australian Manganese v Western Australia’)

Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield [2012] NNTTA 27 (‘Wurrunmurra v Salmon’)

Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46; [2001] NNTTA 104 (‘Bissett v Mineral Deposits (Operations)’)

Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thomson (Gugu Badhun)/State of Queensland [2006] NNTTA 3 (‘Cameron v Hoolihan’)

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

Cheinmora v Striker Resources NL & Ors; Dann v Western Australia (1996) ALR 21; [1997] FCA 1147 (‘Cheinmora v Striker Resources’)

Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabinga-Wiraadjuri People (NC11/4)/State of New South Wales [2013] NNTTA 2 (‘Coalpac v Gundungurra Tribal Council’)

Coalpac Pty Ltd/State of New South Wales/North Eastern Wiradjuri People of the Bathurst, Lithgow, Mudgee area [2009] NNTTA 137 (‘Coalpac v North Eastern Wiradjuri People’)

Evans v Western Australia (1997) 77 FCR 193; [1997] FCA 741 (‘Evans v Western Australia’)

Drake Coal Pty Ltd v Smallwood (2012) 257 FLR 276 [2012] NNTTA 31 (‘Drake Coal v Smallwood)

FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yinjdibarndi People/Western Australia [2009] NNTTA 91 (‘FMG Pilbara v Cheedy’)

Jax Coal Pty Ltd v Smallwood (2011) 260 FLR 99; [2011] NNTTA 46 (‘Jax Coal v Smallwood’)

Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurruma and Pinikura People; Puutu Kunti Kurruma and Pinikura People #2/Western Australia [2011] NNTTA 80 (‘Magnesium Resources v Puuntu Kunti Kurruma and Pinikura’)

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)

Minister for Lands, State of Western Australia/Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga People; Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson and Clem Donaldson for their respective (Gubrun) families; Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of Mingarwee (Maduwonjga) People [1998] NNTTA 2 (‘Minister for Lands v Strickland’)

Minister for Mines (WA) v Evans (1998) 163 FLR 274; [1998] NNTTA 5 (‘Minister for Mines v Evans’)

Monadee v Western Australia (2003) 174 FLR 381; [2003] NNTTA 38 (‘Monadee v Western Australia’)

Peregrine Resources Pty Ltd and Another v Raymond Ashwin and Others on behalf of the Wutha People and Another [2014] NNTTA 44 (‘Peregrine Resources v Ashwin’)

Raymond Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (‘Ashwin v Doray Minerals’)

Raymond Dann & Others on behalf of the Amangu People/Western Australia/Warrego Energy Limited [2010] NNTTA 30 (‘Dann v Warrego Energy’)

Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara People’)

Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)

Summons v Victoria (2003) 176 FLR 1; [2003] NNTTA 66 (‘Summons v Victoria’)

The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja/Western Australia [2006] NNTTA 19 (‘The Griffin Coal Mining Co v Nyungar People’)

Walley v Western Australia (1999) 87 FCR 565; [1999] FCA 3 (‘Walley v Western Australia’)

Western Australia v Jidi Jidi Aboriginal Corporation (2002) 169 FLR 470; [2002] NNTTA 114 (‘Western Australia v Jidi Jidi Aboriginal Corporation’)

Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)

Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)

Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169; [2009] NNTTA 49 (‘Western Desert Lands v Western Australia’)

White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales [2011] NNTTA 110 (White Mining (NSW) v Franks)

WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 522 (‘WMC Resources v Evans’)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’)

Representatives of the     Mr David Burton, Peregrine Resources Pty Ltd
grantee party:                 Mr Matthew Wheeler, Peregrine Resources Pty Ltd

Representative of the     Mr Paul Tolcon, Mony de Kerloy
first native title party:    

Representative of the     Mr Colin McKellar, Yamatji Marlpa Aboriginal Corporation
second native title party:

Representatives of the     Mr Trevor Creewel, State Solicitor’s Office
Government party:         Mr Warren Fitt, State Solicitor’s Office
  Ms Jan Mason, Department of Mines and Petroleum

REASONS FOR DECISION

Background

1. On 26 March 2008, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’ or ‘NTA’) of its intention to grant exploration licence E20/660 (‘the proposed licence’) under the Mining Act 1978 (WA) (‘Mining Act’) to Peregrine Resources Pty Ltd (‘the grantee party’).

2. At the date of the notice and four months after the notification day, the following native title determination applications appeared on the Register of Native Title Claims with respect to the proposed licence area:

   ·Raymond Ashwin and others on behalf of the Wutha people – WC1999/010, registered from 15 June 1999 (‘the first native title party’).

   ·Evelyn Gilla and others on behalf of the Yugugna-Nya People – WC1999/046, registered from 12 June 2000 (‘the second native title party’).

3. Each of the native title parties is therefore a ‘negotiation party’ for the purposes of Part 2, Division 3, Subdivision P of the Act (ss 30(1) and 30A NTA).

4. At the time of the s 29 notice, the proposed licence comprised an area of 214.39 square kilometres situated 57 kilometres north-easterly of Cue in the Shires of Cue and Meekatharra. Following the grant of an overlapping exploration licence, the area available for grant has been reduced to approximately 162 square kilometres. The reduced area covers approximately 133 square kilometres of the first native title party’s claim, which equates to 82.4 per cent of the proposed licence area. The proposed licence is situated entirely within the claim boundaries for the second native title party.

5. On 28 August 2013, the grantee party made an application to the Tribunal under s 35 of the Act for a determination under s 38. The application was made on the basis that the grantee party had not been able to reach agreement with the first native title party about the grant of the proposed licence within six months of the Government party giving notice of its intention to do the act. It is understood that the second native title party has entered into an agreement with the grantee party in relation to the proposed licence and a Deed for Grant of Mining Tenement was executed and lodged with the Tribunal on 3 September 2010.

6. On 10 September 2013, President Raelene Webb QC appointed herself to constitute the Tribunal for the purpose of conducting an inquiry into the application. Following my appointment to the Tribunal on 31 March 2014, President Webb QC appointed me to constitute the Tribunal for the purpose of considering the application on 2 April 2014.

The Good Faith Issue

1. The Act states that the parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the future act, whether or not subject to conditions to be complied with by any of the parties (s 31(1)(b) NTA). If a negotiation party satisfies the Tribunal that any other negotiation party (other than a native title party) did not negotiate in good faith, the Tribunal must not make a determination under s 38 of the Act (s 36(2) NTA).

2. On 19 September 2013, the Tribunal convened a preliminary conference to determine whether any of the native title parties wished to contend that the grantee party or Government party did not negotiate in good faith and to set directions for the inquiry. At the preliminary conference, the first native title party indicated that it would be seeking to contend that the grantee party did not negotiate in good faith as required by s 31(1)(b) of the Act. The Tribunal subsequently issued directions requiring parties to file submissions on the good faith issue, following which the first native title party provided materials in support of its contention that neither the grantee party nor the Government party had met its obligation to negotiate in good faith.

3. After considering the materials provided by the parties, I was not satisfied that either the grantee party or the Government party had failed to negotiate in good faith in accordance with s 31(1)(b) of the Act. The reasons for that decision were handed down on 12 May 2014 (see Peregrine Resources v Ashwin).

4. Consequently, the Tribunal has power to make a determination under s 38 of the Act in relation to proposed licence.

The Inquiry

1. Directions for the substantive inquiry were issued by President Webb on 19 September 2013. These directions required the parties to provide contentions and documentary evidence relevant to the criteria in s 39 of the Act and set dates for the hearing of the matter.

2. The Government party provided a statement of contentions on 9 December 2013 (‘GVP Contentions’), together with the following documents:

   GVP1.Mining Tenement Register search for the proposed licence, dated 15 November 2013.

   GVP2.Copy of the s 29 notice for the proposed licence, dated 26 March 2008.

   GVP3.Letter from the Department of Mines and Petroleum (‘DMP’) to the Native Title Registrar dated 3 September 2010, enclosing a Deed for Grant of Mining Tenement executed by the Government party, grantee party and the second native title party.

   GVP4.Tengraph Quick Appraisal Form for the proposed licence, dated 15 November 2013.

   GVP5.Copy of pastoral lease PL 3114/455 and relevant certificate of Crown land title.

   GVP6.Copy of pastoral lease PL 3114/898 and relevant certificate of Crown land title.

   GVP7.Copy of pastoral lease PL 3114/1200 and relevant certificate of Crown land title.

   GVP8.Copy of pastoral lease PL 3114/783 and relevant certificate of Crown land title.

   GVP9.Copy of Indigenous-held pastoral lease I 3114/744 and relevant certificate of Crown land title.

   GVP10.Advice given by Dennis Bettesworth (Acting Land Information officer, DMP) in relation to the proposed licence, comprising:

   (a)a memorandum from Mr Bettesworth to Jan Mason (Project Officer, DMP) dated 19 November 2013; and

   (b)an email from Mr Bettesworth to Ms Mason dated 22 November 2013.

   GVP11.Native Title Spatial Services map of the proposed licence relative to pastoral leases, road reserve and native title claims, dated 19 November 2013.

   GVP12.Tengraph maps of current mineral tenure in the vicinity of the proposed licence, dated 18 November 2013.

   GVP13.Letter from Paul Tolcon on behalf of the first native title party to David Thomson (Project Officer, DMP) dated 26 March 2012.

   GVP14.List of the endorsements and conditions proposed to be attached to the proposed licence as at 20 November 2013.

   GVP15.Letter from David Burton (Director, Peregrine Resources) to Paul Tolcon (representative of the first native title party) dated 19 March 2012.

   GVP16.Search of the Register of Aboriginal Sites for the proposed licence, dated 15 November 2013.

3. The grantee party’s statement of contentions (‘GP Contentions’) was provided on 17 December 2013 by way of a statement signed by Matthew Wheeler, who is a director of the grantee party. The statement was accompanied by the following documents:

   GP-A.Tengraph Quick Appraisal Form for the proposed licence, dated 9 December 2013.

   GP-B.Search of the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs for registered sites within the proposed licence, dated 16 December 2013.

   GP-C.Search of the Aboriginal Sites Database for heritage surveys conducted within the proposed licence, dated 16 December 2013.

   GP-D.Search of the Aboriginal Sites Database for ‘other heritage places’ within the proposed licence, dated 16 December 2013.

   GP-E.Letter from Mr Wheeler to the Mining Registrar dated 28 May 2013, waiving the grantee party’s right of priority in respect of the proposed licence in favour of E20/824.

   GP-F.Mining Tenement Summary Report for the proposed licence, dated 16 December 2013.

   GP-G.A document entitled ‘Report on a Preliminary Investigation for Aboriginal Sites: Porlell Project Area, South-East of Meekatharra’, prepared for W Richmond by G Quartermaine and K Shaw, dated November 1991.

   GP-H.Map of the original tenement application area relative to pastoral leases, road reserve and native title claims, dated 11 March 2012.

   GP-I.Letter from the Department of Mines and Petroleum (‘DMP’) to the Native Title Registrar dated 3 September 2010, enclosing a Deed for Grant of Mining Tenement executed by the Government party, grantee party and the second native title party.

   GP-J.List of open file Mineral Exploration Reports.

4. The first native title party provided a statement of contentions on 10 January 2014 (‘NTP Contentions’), accompanied by the affidavit of June Rose Ashwin (also known as June Rose Harrington-Smith) sworn 8 January 2014 (‘Ashwin Affidavit’). In her affidavit, Ms Ashwin states that she is one of the registered claimants for the Wutha claim and has been authorised by the applicants for the claim to make the affidavit on their behalf. I accept that Ms Ashwin has authority to give evidence on behalf of the first native title party in this matter.  

5. Annexed to Ms Ashwin’s affidavit are pages 1 to 41 of a 105-page ‘connection to country’ report prepared for Ms Ashwin by Kymberley Russell of AX Cultures in November 2012 (‘AX Cultures Report’). Ms Russell’s qualifications are not evident from the report and have not been provided to the Tribunal. Ms Ashwin deposes that she commissioned Ms Russell to prepare the report and says it ‘shows the importance of the country to the Wutha People and some of the history of their association with it’ (Ashwin Affidavit, paragraph 5). The report states that its objective is to ‘[d]ocument the lineage of June (Ashwin) Harrington-Smith’s Aboriginal Heritage and provide a Connection to Country Report’ and the intention of the author was ‘to provide a continuous connection to country for the client Mrs June Harrington-Smith nee Ashwin.’ The report also includes a disclaimer that the author ‘takes no responsibility for the oral information provided by the client and or persons of interests, and should be read without prejudice’ (at 3). It is not clear why the subsequent pages of the report were not included, and it is not apparent from the pages provided that the report is directly relevant to the proposed licence.   

6. At the preliminary conference held on 19 September 2013, the second native title party indicated that, on the basis of its existing agreement with the grantee party, its involvement in the inquiry would be limited and it did not make any submissions in the substantive inquiry.

7. The submissions made on behalf of the Government party and the grantee party were provided before the receipt of the first native title party’s statement of contentions and the affidavit of Ms Ashwin. For this reason, the Government party’s statement of contentions was drafted on the basis that the only material on which the effect of the proposed licence could be assessed were the first native title party’s submissions to the Government party on 26 March 2012 (‘Negotiation Submissions’). These submissions concerned the scope of proposed good faith negotiations. Following receipt of the first native title party’s documents, the Government party informed the Tribunal by email that ‘in view of the very limited evidence and issues raised in the parties’ contentions, the State has nothing further to add to its written submissions.’

8. Though the Government party refers to the Negotiation Submissions throughout its statement of contentions and acknowledges that they can be considered by the Tribunal, it maintains that the Negotiation Submissions are not evidence and, in any event, are extremely general and do not provide sufficient detail to determine the effect of the proposed licence on the matters identified in s 39 of the Act (GVP Contentions, paragraphs 29-30). I agree that the Negotiation Submissions do not provide much assistance in determining the effect on the first native title party’s registered native title rights and interests, though I accept they have some relevance to its interests, proposals, opinions or wishes in relation to the management, use or control of the land. In any event, the first native title party has not sought to rely on them.

9. The first native title party’s statement of contentions outlined its intention to call Ms Ashwin and Ron Harrington-Smith to give oral evidence relevant to the inquiry. Mr Harrington-Smith is described as a spokesperson for the Wutha people. On 10 January 2014, the Tribunal wrote to parties by email to enquire about the amount of time likely to be needed should the matter proceed to a hearing. On 13 January 2014, the Government party replied by email indicating that it had nothing further to add to its written submissions and suggested that the matter should be determined on the papers (that is, without a hearing). On 14 January 2014, the first native title party replied by email noting it had no objection to the matter being dealt with on the papers, pending the outcome of the good faith inquiry. The grantee party also wrote to the Tribunal by email on 14 January 2014 supporting the Government party’s request for the matter to be determined on the papers.

10. A listing hearing was convened on 10 February 2014. At the hearing, the parties indicated that no further documents were to be filed and they were content to proceed on the papers. I have considered the materials provided in this matter and I am satisfied that it is appropriate to proceed on the papers in accordance with s 151(2) of the Act.

The Proposed Licence

Rights conferred by the proposed licence

1. The rights conferred by the proposed licence are set out in s 66 of the Mining Act:

66      Rights conferred by exploration licence

An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject–

(a)    to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;

(b)    to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;

(c)     to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing.

(d)    to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the regular provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for domestic purposes and for any purpose in connection with exploring for minerals on the land.

1. According to reg 20 of the Mining Regulations 1981 (WA) (‘Mining Regulations’), the prescribed limit referred to in s 66(c) is 1,000 tonnes.

2. The exercise of the grantee party’s rights under the proposed licence are subject to the conditions outlined in s 63 of the Mining Act:

63      Conditions attached to exploration licence

Every exploration licence shall be deemed to be granted subject to the condition that the holder thereof will explore for minerals and–

(a)    will promptly report in writing to the Minister all minerals of economic interest discovered in, on or under the land the subject of the exploration licence;

(aa)  will not use ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless–

(i)the holder has lodged in the prescribed matter a programme of work in respect of that use;

(ii)the holder has paid the prescribed assessment fee in respect of the programme of works; and

(iii)the programme of work has been approved in writing by the Minister or a prescribed official; and

(b)    will fill in or otherwise make safe to the satisfaction of a prescribed official all holes, puts, trenches and other disturbances to the surface of the land the subject of the exploration licence which are–

(i)made while exploring for minerals; and

(ii)in the opinion of the prescribed official, likely to endanger the safety of any person or animal; and

(c)     will take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.

1. The Government party has also indicated its intention to impose the following endorsements and conditions on the proposed licence:

   ENDORSEMENTS

   1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

   2. The grant of this licence does not include the land the subject of prior Exploration Licence 20/428. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional Provisions relating to Geocentric Datum of Australia’

   3. 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.

   In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

   4.   The Licensee [sic] attention is drawn to the provisions of the:

   ·Waterways Conservation Act, 1976

   ·Rights in Water and Irrigation Act, 1914

   ·Metropolitan Water Supply, Sewerage and Drainage Act, 1909

   ·Country Areas Water Supply Act, 1945

   ·Water Agencies (Powers) Act 1984

   ·Water Resources Legislation Amendment Act 2007

   5. The rights of ingress and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

   6.   The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoW relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

   In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

   7.   The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

   In respect to Waterways the following endorsement applies:

   8.   Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   ·50 metres from the outer-most water dependent vegetation of any perennial waterway; and

   ·30 metres from the outer-most water dependent vegetation of any seasonal waterway.

CONDITIONS

1.     All surfaces holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.

2.     All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Industry and Resources (DoIR). Backfiling and rehabilitation being required no later than 6 months after the excavation unless otherwise approved in writing by the Environmental Officer, DoIR.

3.     All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.

4.     Unless the written approval of the Environmental Officer, DoIR is first obtained, the use of drill rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfiling and/or completion of operations.

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.

1. An endorsement differs from a condition in that the breach of an endorsement does not render the licence liable to forfeiture.

2. If granted, the proposed licence will remain in force for a period of five years, although the term may be extended by one further period of five years and subsequent periods of two years if a prescribed ground for extension exists (see MiningAct, s 61 amd Mining Regulations, reg 23AB).

3. A search of the Mining Tenement Register indicates that the proposed licence originally comprised an area of 70 graticular blocks. According to the notice, the area equates to 214.39 square kilometres. On 28 May 2013, the grantee party gave notice of its intention to waive its right in priority to the grant of the proposed licence in favour of E20/824, an exploration licence applied for by Rio Tinto Exploration Pty Limited. E20/824 was subsequently granted on 3 April 2014. As s 57(2h) of the Mining Act provides that no exploration licence may be granted in respect of a block or any part of a block in respect of which another exploration licence has already been granted, the grant of E20/824 had the effect of reducing the land available for the proposed licence to 53 graticular blocks, or 162 square kilometres. This is confirmed by the second endorsement attached to the proposed licence.

4. The second endorsement notes that the land subject to E20/824 may be included in the proposed licence if E20/824 expires or is surrendered or forfeited. As this would have the effect of extending the area of the proposed licence, the amendment would not fall within the exclusion in s 26D of the Act and would therefore trigger the right to negotiate provisions.

Underlying tenure

1. The documentation provided by the Government party establishes the underlying tenure of the proposed licence to be as follows:

   ·Indigenous-held pastoral lease I 3114/744 (Cogla Downs), overlapping at 45.8 per cent. The lease comprises Lot 138 on Deposited Plan 238120 and was granted for pastoral purposes for a term of 48 years, four months and two days, expiring 30 June 2015. The lease was transferred to Yulella Fabrications Aboriginal Corporation on 1 June 1994.

   ·Pastoral Lease PL 3114/783 (Nallan), overlapping at 21.7 per cent. The lease comprises Lot 134 on Deposited Plan 220917 and was granted for pastoral purposes for a term of 46 years, seven months and five days, expiring on 30 June 2015.

   ·Pastoral Lease PL 3114/1200 (Karbar), overlapping at 16.8 per cent. The lease comprises Lot 25 on Deposited Plan 29083, Lot 130 on Deposited Plan 29083 and Lot 131 on Deposited Plan 29083. The lease was granted for pastoral purposes for a term of 27 years, six months and 28 days, expiring on 30 June 2015.  

   ·Pastoral Lease PL 3114/455 (Cullculli), overlapping at 13 per cent. The lease comprises Lot 136 on Deposited Plan 220211 and was granted for pastoral purposes for a term of 48 years, nine months and five days, expiring on 30 June 2015.

   ·Pastoral Lease PL 3114/898 (Yarrabubba), overlapping at 2.7 per cent. The lease comprises Lot 167 on Deposited Plan 238562 and was granted for pastoral purposes for a term of 47 years and six days, expiring on 30 June 2015.

   ·Road Reserve (Cogla Downs – Taincrow), overlapping at less than 0.1 per cent.

2. Government party documentation also indicates that several historical leases which overlapped the proposed licence area (being H 394/516, H 394/484, H 394/723 and H394/542) have been surrendered or cancelled and superseded by PL 3114/744,          P 3114/783, PL 3114/1200 and PL 3114/455 respectively.

Historical mining activity

1. The documentation provided by the Government party indicates that the area within the proposed licence has previously been subject to the following mineral tenure:

   ·Nine exploration licences granted between 1986 and 2000 with an average lifespan of three and a half years, overlapping the proposed licence area from 0.1 per cent to 5.2 per cent.

   ·12 mineral claims granted between 1970 and 1972 with an average lifespan of one year and four months, overlapping the proposed licence area from less than 0.1 per cent to 0.7 per cent.

2. The grantee party contends that there has been ‘considerable previous mineral exploration’ conducted over the proposed licence and surrounding areas over the past 50 years. The grantee party refers to the list of open file mineral exploration reports extracted from DMP’s WAMEX database, which catalogues 144 unique reports relating to the area, though I note the search was made on the basis of the original application area rather than the reduced area. A comparison between the list and the tenements recorded on the Tengraph Quick Analysis indicates that only 21 of the reports listed concern tenements that once overlapped the proposed licence area. These reports indicate that a variety of exploration activities were undertaken in relation to these tenements, including geological reconnaissance, aeromagnetic surveys, soil and rock chip sampling and rotary air blast drilling. The reports also indicate that the areas were generally accessed by existing roads and tracks.  

3. As the reports only relate to seven of the former tenements, I acknowledge that the list may be incomplete, and it is likely that some work was carried out over the other tenements. At the same time, it is clear that the overlap between the former tenements and the proposed licence area is minimal. In most cases, the overlap is less than one per cent and does not exceed 5.2 per cent of the proposed licence area. Although the mineral exploration reports indicate the kind of activities undertaken on the former tenements, it is difficult to draw any conclusions as to whether the works were carried on in the marginal areas of overlap. It is possible that significant parts of the proposed licence area have not been subject to previous exploration. While the reports suggest that the surrounding areas have experienced a moderate degree of exploration activity over preceding decades, the evidence does not establish that the proposed licence area has been subject to extensive exploration or mining activity.            

Proposed exploration activity

1. The grantee party states that it intends to undertake ‘first-stage exploration’ over the area, targeting gold and base metals. The initial exploration programme will include airborne geophysical surveying, mapping, rock and soil sampling, and shallow, low-impact rotary air blast/reverse circulation drilling of target areas within the first two years of grant. The target areas are not specified. The grantee party expects this work to be followed by more intensive reverse circulation or diamond drilling in years three to six of the project, subject to initial results.

2. The first native title party contends that the grantee party provides little or no information as to its proposed activities (NTP Contentions, paragraphs 5 and 8). I accept that the grantee party’s statement of contentions only provides a broad outline of the kinds of activity it intends to carry out on the proposed licence, and does not provide a great deal of assistance in terms of the precise effect of the exploration programme.

3. The information contained in the grantee party’s letter to DMP in 2008, which was annexed to the affidavit of David Thomson sworn on 25 October 2013 and was before the Tribunal in the good faith inquiry, provides considerably more detail about the proposal. The document, which was provided in response to the Government party’s first negotiation letter, divides the programme into three stages. The first stage, which at that point was already said to be complete, involved the compilation and interpretation of available exploration data. This would be followed by the definition of geochemical and geophysical targets in stage two. According to the document, stage three fieldwork would then occur in the first year of grant and progress along the following steps:

   ·regolith and geological mapping of prospective areas;

   ·geochemical sampling (using rock chip, lag, magnetic fraction and hand auger where required) of all targets for a variety of elements including gold;

   ·ground magnetic surveys over magnetic targets defined by airborne magnetic surveys and areas of covered complex geology to define specific targets using a specialist contractor;

   ·detailed gravity surveys over relevant emerging targets; and

   ·ground electromagnetic surveys over airborne and geochemical targets.

4. The letter states that the grantee party ‘is committed to drilling early in its campaign, with [rotary air blast] drilling planned for the second field season. By year two, it is planned to have [rotary air blast] drilled most of the priority targets, as well as to have detailed geochemical coverage over the surrounding areas.’ The letter indicates that this initial work will be followed by reverse circulation and diamond drilling, and describes the ‘ultimate aim’ of the project as ‘explor[ing] the entire area prior to relinquishment.’

5. Although the letter was drafted in 2008 and there is a possibility that the grantee party’s plans have changed since that time, the programme outlined in the letter is broadly consistent with the statements made in the grantee party’s contentions and its letter to the first native title party on 19 March 2012. In this regard, I have found the letter of some assistance in assessing the likely scope of the grantee party’s operations.              

Aboriginal communities and Aboriginal cultural heritage

1. There is no evidence of any Aboriginal communities within or in the vicinity of the proposed licence area.

2. Searches of the Aboriginal Sites Database provided by the Government and grantee parties indicate there are no registered sites or other heritage places within the proposed licence area. The searches provided by the grantee party also indicate that one survey has previously been conducted over the area, which concerned rock art in the Cue region. It appears that a report was produced following the survey, but it is not before the Tribunal and its relevance to the inquiry has not been established.    

3. The grantee party also provided a report published in November 1991, recording the results of a preliminary investigation into the Aboriginal heritage significance of the Porlell Project Area, south-east of Meekatharra. The report states that the object of the survey was the ‘assembly of data from previous work in the region, including information from WA Museum Aboriginal site files, previous survey reports, maps and environmental information’ (paragraph 1.1). The report concerns an area 45 kilometres south-east of Meekatharra, adjacent to the Gabanintha mine. The report does not appear to have any relevance to the present inquiry.

4. The grantee party states that it has entered into an agreement with the second native title party in relation to the original area of the proposed licence. According to the grantee party, the agreement only allows ‘low-impact exploration activities’ to be undertaken without conducting a heritage survey. These activities are said to include airborne surveys, geological mapping, metal detecting, surface sampling using hand-held tools and non-ground disturbing geophysical survey techniques. The agreement requires the grantee party to give notice to the second native title party when it intends to undertake exploration activities, at which point the second native title party will determine whether a heritage survey is required. The Tribunal has not been provided with a copy of the agreement and no submissions were received from the second native title party.

The regulatory context

1. The proposed licence will be subject to the deemed conditions in s 63 of the Mining Act, as well as those enumerated in the list of proposed endorsements and conditions provided by the Government party. Additional conditions may be imposed for the purpose of preventing or reducing, or making good, injury to the land or to anything below the nature surface of the land, or consequential damage to any other land following the grant of the proposed licence (see s 63AA Mining Act).

1. The Government party notes that the Aboriginal Heritage Act 1972 (WA) (‘AHA’) will apply to activities undertaken by the grantee party on the proposed licence (GVP Contentions, paragraph 61). The Government party refers the findings made by the Tribunal in Western Australia v Thomas at 209-211, which I adopt. Briefly, the AHA provides for the protection and preservation of Aboriginal sites and objects. It is an offence under s 17 of the AHA to excavate, destroy, damage, conceal or in any way alter any Aboriginal site. Section 18 of the AHA provides that the Minister may give consent to the use of land for a purpose likely to result in a breach of s 17. It is a defence to a breach of the AHA if the person charged can prove that he or she did not know, and could not reasonably be expected to have known, that the place was an Aboriginal site (s 62 AHA). It applies to all Aboriginal sites as defined in s 5, whether or not the site appears on the Register of Aboriginal sites.

2. The proposed licence will also be subject to the Environmental Protection Act 1986 (WA) (‘EP Act’). The procedures under this legislation were outlined by the Tribunal in Minister for Mines v Evans at [53]-[58] and I adopt the findings outlined in those passages. Briefly, a proposal must be referred to the Environmental Protection Authority for assessment where the proposal is likely, if implemented, to have a significant effect on the environment. The referral of Mining Act tenements is administered under a memorandum of understanding entered into between the Environmental Protection Authority and DMP.

3. The EP Act was amended in 2003 to incorporate provisions requiring approval before clearing native vegetation (Part V, Division 2). According to the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), mineral activities are exempt from this requirement if carried out pursuant to an authority granted under the Mining Act and not carried out in designated areas (reg 5, item 20 and schedule 1).   

Native title rights and interests

1. The registered native title rights and interests for the Wutha determination application are set out as follows:

   a)     rights and interests to possess, occupy, use and enjoy the area;

   b)    the right to make decisions about the use and enjoyment about the area;

   c)     the right of access to the area;

   d)    the right to control the access of others to the area;

   e)     the right to use and enjoy resources of the area;

   f)     the right to control the use and enjoyment of others of resources of the area;

   g)    the right to trade in resources of the area;

   h)    the right to receive a portion of any resources taken from the area;

   i)   the right to maintain and protect places of importance under traditional laws, customs and practices of the area; and

   j)   the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area

   All claimed native title rights and interests are subject to:

   i)   To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.

   ii)the claim does not include any offshore place.

   iii)  Subject to paragraph (iv) the applicants do not make a claim to native title rights and interests which confer possession, occupation use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia and a law of that State has made provision as mentioned in sec 23I in relation to the act;

   iv)  Paragraph (iii) above is subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing but which include such area as may be listed in Schedule L;

   v)    The said native title rights and interests are not claimed to the exclusion of any other rights and interests validly created by or pursuant to the common law, the law of the State or a law of the Commonwealth.

2. The registered native title rights and interests for the determination application made on behalf of the Yugunga-nya people are set out as follows:

   (a)  rights to possess, occupy, use and enjoy the area;

   (b)  the right to make decisions about the use and enjoyment of the area;

   (c)  the right of access to the area;

   (d)  the right to maintain and protect places of importance under traditional laws, customs and practices in the area; and

   Subject to:

   i)   To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicant.

   ii)    The claim does not include any offshore place.

   iii)  The applicant does not make a claim to native title rights and interests which confer possession, occupation use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in section 23F of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia and a law of that State has made provision as mentioned in sec 23I in relation to the act;

   iv)  Paragraph (iii) above is subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which will be provided prior to the hearing;

   v)    The said native title rights and interests are not claimed to the exclusion of any other rights and interests validly created by or pursuant to the common law, the law of the State or a law of the Commonwealth.

Legal Principles

1. The Tribunal is required under s 38 of the Act to make one of three determinations, namely, that the act must not be done, that the act may be done, or that the act may be done subject to conditions. The determination must be made on the basis of the criteria set out in s 39 of the Act:

39      Criteria for making arbitral body determinations

(1) In making its determination, the arbitral body must take into account the following:

(a)     the effect of the act on:

(i) the enjoyment by the native title parties of their registered native title rights and interests; and

(ii) the way of life, culture and traditions of any of those parties; and

(iii) the development of the social, cultural and economic structures of any of those parties; and

(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

(e)     any public interest in the doing of the act;

(f)     any other matter that the arbitral body considers relevant.

Existing non-native title interests etc.

(2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

(a)     existing non-native title rights and interests in relation to the land or waters concerned; and

(b)    existing use of the land or waters concerned by persons other than the native title parties.

Laws protecting sites of significance etc. not affected

(3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

Agreements to be given effect

(4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

(a)     must take that agreement into account; and

(b)    need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.

1. The Act does not specify the kinds of conditions the Tribunal may impose, although the s 39 criteria provide ‘an indication in broad terms of what Parliament considers might be the appropriate subject matter of conditions which the Tribunal might impose upon the doing of the act’ (see Walley v Western Australia at 576). Section 38(2) specifically prohibits the Tribunal from imposing any profit-sharing condition.

2. The making of a determination involves a discretionary exercise by reference to the criteria in s 39 (see Western Desert Lands v Western Australia at [37]). As the Tribunal observed in Western Australia v Thomas at 165-166:

   We accept that our task involves weighing the various criteria by giving proper consideration to them on the basis of the evidence before us.  The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned.

   The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.

   The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.

3. Section 109(3) of the Act provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence. While there is no burden of proof, evidential or otherwise, which falls on the parties in a future act inquiry, the Tribunal can only act on evidence (see Western Australia v Thomas at 157-158). The Tribunal is required to adopt a commonsense approach to the evidence, meaning that parties will produce evidence to support their contentions, particularly where the facts are peculiarly within their own knowledge (Western Australia v Thomas at 157; Dann v Warrego Energy at [13]).

Consideration of the Section 39 Criteria

Sections 39(1)(a)(i) and 39(2) – enjoyment of registered native title rights and interests

Contentions and evidence

1. The first native title party contends that the grant of the proposed licence will impair the recognition of its registered native title rights and interests, specifically the right to possess, occupy, use and enjoy the whole of the land subject to the proposed licence and the right to hunt and gather, camp, traverse and have access to natural resources in the area (NTP Contentions, paragraph 10(a)(i)). The first native title party submits that the proposed licence will interfere with its access to the proposed licence area and place impediments on hunting and gathering; the extraction of flora and use of other resources in the proposed licence area; the conduct of religious, ceremonial and other activities; and the telling of stories and dreaming and the continuation of the oral traditions of the first native title party (NTP Contentions, paragraphs 10(a)(v)(A)-(C)).

2. Ms Ashwin states that the proposed activities ‘will interfere with our community and social activities such as camping and catching animals like kangaroos and emus by traditional methods along with our use of the natural environment for bush medicine, jewellery and making boomerangs, spears and throwing sticks’ (Ashwin Affidavit, paragraph 8). Ms Ashwin also states that members of the claim group ‘still make those weapons and try to care for their country today’ (Ashwin Affidavit, paragraph 9). Ms Ashwin says that she ‘[tries] to go to areas of country including the areas of the proposed tenement regularly with my children and grandchildren to make sure it is all okay. We clean soaks, springs and other waterways and remove rubbish’ (Ashwin Affidavit, paragraph 9).      

3. The Government party’s contends that, in the absence of evidence regarding the extent to which the first native title party’s registered native title rights and interests are enjoyed within the proposed licence area, the Tribunal should conclude that the proposed licence will not have any adverse effect on the enjoyment of those rights and interests. Alternatively, any interference could be mitigated by the imposition of appropriate conditions of the kind that will be imposed by the Government party (GVP Contentions, paragraphs 44-46). In the Government party’s submission, any interference with the physical enjoyment of the first native title party’s rights and interests would be slight having regard to the size of the proposed licence relative to the first native title party’s claim, and would be outweighed by the economic significance of and public interest in the doing of the act (GVP Contentions, paragraph 47). The Government party also draws attention to the fact that the area has been and is currently subject to several pastoral leases and has previously been the subject of other mining tenure, which may have similarly affected the enjoyment of native title in the past (GVP Contentions, paragraph 48).

4. The grantee party contends that the grant of the proposed licence is not likely to interfere directly with the carrying on of the community or social activities of any native title holders or claimants or have an adverse effect on the first native title party’s access to the area and the carrying out of rights, ceremonies or other activities. The grantee party states that the rights and interests of the native title parties to enjoy their way of life, culture and traditions and continued freedom of access in accordance with their traditions will not be interfered with.

Consideration

1. Section 39(1)(a)(i) involves an assessment of the effect of the proposed act on the present and future enjoyment of the native title parties’ registered native title rights and interests (WMC Resources v Western Australia at [30]). This assessment requires the Tribunal to treat claimed native title rights and interests on the same footing as determined rights and interests, and accept the possibility that each of the registered native title rights and interests in the area exists (see Western Australia v Thomas at 167; Drake Coal v Smallwood at [68]; Adani Mining v Diver at [49]). However, it does not require the Tribunal to proceed on a ‘worst case’ scenario, whereby the relevant rights and interests are presumed to exist and exercised equally over the entire area. This is particularly so where the act only comprises a small part of a much larger claim area (see Drake Coal v Smallwood at [70], citing Coalpac v North Eastern Wiradjuri People at [31]). There must be evidence to demonstrate which rights and interests will be affected and how they will be affected. As the Tribunal explained in Western Australia v Thomas at 167:

   The question of whether a particular proposed future act has an effect on native title rights and interests of a particular native title party (or parties) is a matter of fact to be determined on the evidence in each case and will depend on the nature of the act and the native title rights and interests which are capable of being affected.

2. In evaluating the effect of the proposed act on the enjoyment of the native title parties’ registered native title rights and interests, the Tribunal is also required to take into account the nature and extent of existing non-native title rights and interests in the land or waters concerned, as well the existing use by persons other than the native title parties (see s 39(2) NTA).

3. It is clear that the grant of the proposed licence is in direct conflict with the right to make decisions about the use and enjoyment of the area as well as rights concerned with controlling access to the area and the use and enjoyment of the area’s resources. However, there is no evidence as to how those rights are currently exercised or enjoyed in the proposed licence area and it is likely that any rights of this kind have been extinguished by the pastoral leases and the road reserve.

4. There is some evidence that members of the first native title party carry on activities that are consistent with rights to use and enjoy the claim area and its resources, such as camping, hunting and gathering and making traditional weapons. In Western Australia v Jidi Jidi, Deputy President Sumner considered that interests of this kind could potentially be affected by exploration (at [26]-[27]). However, there is little in the way of evidence regarding the extent to which these rights are actually enjoyed in the proposed licence area. Ms Ashwin merely states that the grant will interfere with these activities, and does not provide any information as to how they are carried on in the proposed licence area. Similarly, Ms Ashwin states that she tries to visit the claim area, including the proposed licence area, with her children and grandchildren on a regular basis to care for country. However, it is not clear how frequently the proposed licence area is visited for these purposes and there is little indication of the significance of the area for the activities described. In any event, the exercise of these rights will have already been, and will continue to be, subject to the lawful activities of the pastoral lessees.

5. One of the pastoral leases, namely the Cogla Downs lease, is designated as being Indigenous-held. In Monadee v Western Australia, the Tribunal found at [28] that the usual factors in assessing the effect of pastoral interests on the exercise of native title rights and interests do not automatically occur in the case of Indigenous-held pastoral leases (see also Wurrunmurra v Salmon at [52]-[53]). In Monadee v Western Australia however, the Tribunal also gave weight to evidence that members of the claim group had not experienced difficulties in entering upon the pastoral lease to carry out traditional activities. There is no such evidence in the present case, nor is there anything before the Tribunal regarding the relationship between the claim group and the holder of the Cogla Downs lease.

6. Even had there been evidence of the exercise or enjoyment of the registered native title in the proposed licence area, it is unlikely the activities proposed by the grantee party would have a significant effect on the enjoyment of native title rights and interests in the area. If exercise of the rights conferred by the proposed licence intersects in any way with the activities of the native title parties, it is likely to be incidental and temporary. Any disturbance to the land that might affect the exercise or enjoyment of the native title parties’ registered rights and interests will need to be rehabilitated in accordance with the proposed conditions. I have also taken into consideration the fact the proposed licence area represents approximately 0.5 per cent of the claim areas.   

1. The first native title party says there is further evidence about the activities carried on by the first native title party in its native title application and the materials provided in support of the claim’s registration (NTP Contentions, paragraph 10(a)(v)(B)). The Tribunal was not directed to any specific material and it is not clear to what extent these materials might concern the exercise or enjoyment of the registered native title rights and interests in the proposed licence area. The first native title party asserts that much of this information is subject to confidentiality orders, and other confidentialities according to traditional laws and custom. The nature and scope of those orders and the documents to which they apply were not explained. If any of the information is confidential on a cultural basis, the first native title party could have asked the Tribunal to make non-disclosure directions under s 155 of the Act. The first native title party also says that a lack of resources and consents has prevented them from obtaining much of this information. However, that does not provide the Tribunal with any basis for assuming there will be any effect on the registered native title rights and interests (see Coalpac v Gundungurra Tribal Council at [49]-[52]; Cameron v Hoolihan at [15]-[17]; The Griffin Coal Mining Co v Nyungar People at [7]-[10]). In any case, the best evidence of the exercise or enjoyment of the registered native title rights and interests is from the claimants themselves.

2. In conclusion, I find that the grant of the proposed licence will have a minimal effect on the native title parties’ enjoyment of their registered native title rights and interests.

Section 39(1)(a)(ii) – way of life, culture and traditions

Contentions and evidence

1. The first native title party contends that its physical connection with the area will be severed by lack of access to the land if the proposed licence is granted, and its spiritual connection will be affected due to its inability to exercise its native title rights and interests. The first native title party also contends that its members will be prevented from engaging in and protecting their traditional cultural pursuits and way of life generally and will be unable to perform their traditional practices and responsibilities due to restrictions on access (NTP Contentions, paragraph 10(a)(ii)).  

2. In addition to the matters discussed above at [54], Ms Ashwin states that ‘some of the area’ within the proposed licence ‘may contain sites of our stories and Dreaming’ and dreaming tracks, but says she cannot discuss the stories because they are sacred and ‘for our people only’ (Ashwin Affidavit, paragraph 7). Ms Ashwin also refers to the possibility that significant archaeological or hunting sites might exist within the proposed licence area but have not been recorded, and says that ‘under our lore and culture they should not be damaged or disturbed’ (Ashwin Affidavit, paragraph 11).

3. The AX Cultures Report states that Ms Ashwin’s parents ‘taught their children about life in the bush how to hunt, gather and survive; they were taught about their heritage; the dreaming, places that were very significant to the horde, and how to look after their country.’ It also states that Ms Ashwin and her siblings ‘still maintain that connection today in the 21^st century’ (at 29). This statement is presumably based on information provided by Ms Ashwin, though this is not explicitly stated in the report.

4. The Government party submits that, in the absence of particulars and supporting evidence, the Tribunal should conclude that there will be little or no effect on the way of life, culture and traditions of the first native title party (GVP Contentions, paragraph 50). The grantee party’s submissions referred to above at [56] are also relevant to s 39(1)(a)(ii).

Consideration

1. Section 39(1)(a)(ii) requires the Tribunal to consider whether the proposed future act will have a tangible effect on the contemporary way of life, culture and traditions of the native title parties (see White Mining (NSW) v Franks at [48]; FMG Pilbara v Cheedy at [62]).

2. I accept Ms Ashwin’s evidence that members of the claim group continue to carry on activities in the claim area that are consistent with their traditional laws and customs. However, the evidence does not suggest that the grant of the proposed licence will have an appreciable effect on the conduct of those activities. Though I accept that some of the activities proposed by the grantee party, such as drilling, may restrict the first native title party’s access to certain places at specific times, the effect on the conduct of traditional activities is likely to be minimal. The evidence does not establish that the first native title party’s way of life, culture and traditions is linked to any specific places or sites within the proposed licence area, and in any case any restriction on access is likely to be temporary. There is no evidence of any Aboriginal community living on or in the vicinity of the proposed licence area.

3. I accept the possibility that interference with significant areas or sites may have a consequential effect on the culture and traditions of native title holders. This was recognised by Bissett v Mineral Deposits (Operations) at [72], where the Tribunal accepted evidence that the violation of traditional law and custom through disturbance to the land could have an impact on the culture and traditions of the native title party. However, the evidence does not establish that the proposed licence is situated in an area of particular significance to the first native title party, and there is no evidence that the activities proposed would result in a violation of traditional law and custom. I will turn to the effect of the proposed licence on areas and sites of particular significance later in these reasons.

4. Based on the material before me, I am unable to conclude that the grant of the proposed licence will have any effect on the way of life, culture or traditions of the native title parties.  

Section 39(1)(a)(iii) – development of social, cultural and economic structures

Contentions and evidence

1. The first native title party contends that any ground disturbance that interferes with the dreaming stories of the cultural landscape may interfere with the capacity of present and future generations of Wutha people to interpret their stories. It is submitted that this will deprive the Wutha people of the ability ‘to freely determine the social and cultural arrangements from which they draw their identity and thus construct meaning in their lives’ (NTP Contentions, paragraph 10(a)(v)(D)). The first native title party further submits that an independent social impact assessment should be made before any activity is undertaken on the proposed licence to determine the nature and scale of the proposed activity and its effect on the social, cultural and economic structures of the Wutha people (NTP Contentions, paragraph 10(a)(iii)).

2. The Government party contends that, in the absence of evidence to the contrary, the Tribunal should conclude that the grant of the proposed licence will not have any adverse effect on the development of the social, cultural and economic structures of the first native title party (GVP Contentions, paragraph 52). The grantee party contends that the proposed licence is not likely to have any adverse effect on the development of the social, cultural and economic structures of the first native title party.  

Consideration

1. I turn to the effect of the proposed licence on areas or sites of particular significance to the first native title party later in these reasons, and I discuss the proposal for a social impact assessment when I come to consider the question of whether the proposed licence should be made subject to conditions. For present purposes, I note there is no evidence to support the first native title party’s contention that activities undertaken by the grantee party will have the effect of preventing members of the claim group from freely determining their social and cultural arrangements. There is no other information that might assist me to form a view about the effect of the proposed licence on the social, cultural and economic structures of the native title parties.  

Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies

Contentions and Evidence

1. The first native title party contends that the Wutha people have traditionally enjoyed freedom of access to the subject land and desire access to the country at all times (NTP Contentions, paragraph 10(a)(iv)). The first native title party submits that the grant of the proposed licence will curtail its freedom of access to the land and place an impediment on the conduct of religious, ceremonial and other activities (NTP Contentions, paragraphs 10(a)(ii), 10(a)(v)(B)).

2. The Government party contends there is no evidence that any rites, ceremonies or other activities are conducted on the proposed licence area (GVP Contentions, paragraph 54). The Government party accepts that, due to exploration activities, some of the land may become less freely accessible to the first native title party, but submits that the low-impact nature of the exploration proposed and the size of the proposed licence area means that any effect will be of little moment when weighed against the economic significance of and public interest in the doing of the act (GVP Contentions, paragraph 55).

3. The grantee party states that the grant of the proposed licence is not likely to limit the first native title party’s access to the area and it will not interfere with the first native title party’s continued freedom of access.

Consideration

1. There is no evidence that any rites, ceremonies or other activities of cultural significance are carried out in the proposed licence area. Accordingly, it is not possible to make any finding regarding the effect on the native title parties’ freedom to carry out rites, ceremonies or other activities of cultural significance in the proposed licence area.

2. I accept that the grantee party’s activities are likely to impose some restrictions on the native title parties’ access to the proposed licence area. However, any restrictions on access are likely to be confined to the specific areas where the particular activity is taking place and will be strictly temporary in nature. Any disturbance to the land that might obstruct access will need to be rehabilitated pursuant to the conditions of grant. In the circumstances, I do not consider the proposed licence will have an appreciable effect on the native title parties’ freedom of access.  

Section 39(1)(a)(v) – effect on areas or sites of particular significance

Contentions and evidence

1. The first native title party contends that the proposed licence is likely to interfere with areas and sites of particular significance in accordance with the traditions of the Wutha native title claim group (NTP Contentions, paragraph 10(b)(ii)). In support of this contention, the first native title party submits that:

   ·it is possible that not all areas and sites of particular significance to the Wutha people have been identified or recorded;

   ·none of the Wutha people have been invited nor participated in any survey undertaken over the proposed licence area;

   ·until such time as an approved Wutha Heritage Protection Survey has been undertaken, it is impossible to say with certainty that the grant of the proposed licence is not likely to interfere with area or sites of significance;

   ·sites may exist but have not been entered onto the Register of Aboriginal sites; and

   ·the AHA does not afford adequate protection and no conditions have been placed on the proposed licence requiring the permission of or consultation with the Wutha people prior to any exercise of the ministerial discretion to disturb Aboriginal sites, or any other conditions regarding heritage or consultation.

2. The AX Cultures Report refers to various features and sites, some of which are identified by reference to coordinates. The nearest of these sites is Depot Springs, which is appropriately 150 kilometres south-east of the proposed licence area. Ms Ashwin refers specifically to three sites mentioned in the report, namely Wingarra Soak, Wrungull Soak and Ularring, the last of which is described as ‘an important women’s site and … the metamorphosed body of a female Dreamtime Ancestral Women’ (Ashwin Affidavit, paragraph 6). However, it is apparent that the Wingarra Soak and Ularring are not located in the vicinity of the proposed licence area, and there is nothing to identify that Wrungull Soak is located either in the proposed licence area or its surrounds.

3. As noted above at [40], the searches of the Aboriginal Heritage Database provided by the Government party and grantee party indicate there are no registered sites or ‘other heritage places’ within the proposed licence area.

4. The grantee party contends that it is obligated to undertake all exploration activities over the proposed licence area, including the area subject to the Wutha claim, in accordance with the conditions set out in its heritage agreement with the second native title party. This agreement has not been put before the Tribunal, but I accept that it provides for a heritage survey to be undertaken in specified circumstances. Specifically, the grantee party states that the agreement only allows for low-impact exploration activities (including airborne surveys, geological mapping, metal detecting, surface sampling using handheld tools and non-ground disturbing geophysical survey techniques) to be undertaken without conducting a heritage survey. The agreement requires the grantee party to give notice to the second native title party when it intends to undertake exploration activity, at which point the second native title party will determine whether a survey is required and, if so, what kind.

5. The grantee party states that it ‘is prepared to engage with Aboriginal persons with appropriate traditional knowledge of the land the subject of the [proposed licence] in order to ensure that any proposed works will not interfere with any Aboriginal sites that are not recorded in the register’. The grantee party has not indicated whether it intends to consult specifically with representatives of the first native title party or identified the proposed method of consultation.

Consideration

1. Section 39(1)(a)(v) is concerned with the effect of the act on areas or sites of particular significance to the native title parties in accordance with their traditions. In Cheinmora v Striker Resources; Dann v Western Australia, Carr J interpreted the term ‘sites of particular significance’ to mean sites ‘of special or more than ordinary significance’ (at 34-35). Although that decision involved the use of the expression in s 237 of the Act, it has been found to be equally applicable in the present context (see Jax Coal Pty Ltd v Smallwood at [69]; Bissett v Mineral Deposits (Operations) at [83]-[84]; Summons v Victoria at 23).

2. In the present matter, there is no evidence of any sites or areas of particular significance within the proposed licence area. Nevertheless, the first native title party contends that it is possible sites or areas may exist in the area, though they have not been identified or recorded. In this respect, the first native title party placed significant emphasis on the fact that none of the Wutha people have participated in a survey over the proposed licence area or have been invited to do so. Ms Ashwin also refers to protocols around the disclosure of information regarding dreaming tracks, though I note that directions could have been sought to restrict disclosure of the information.  

3. The submissions of the first native title party on this point come down to an argument that there is a chance that areas or sites of particular significance will be affected unless a heritage survey is conducted in the form endorsed by the Wutha people. I do not accept that argument. It is not open to infer that, because a survey has not been undertaken, there is a greater likelihood of interference with areas or sites of particular significance. The precondition of the inquiry is the identification of sites or areas of particular significance (see Yindjibarndi v FMG Pilbara at [125]). As Deputy President Sosso rightly noted in Monadee v Western Australia at [13], the kind of argument advanced by the first native title party essentially requires an inference to be drawn from speculation (that is, the existence of sites) based on the non-occurrence of an event (the heritage survey). If it is claimed that areas or sites of particular significance exist, they must be capable of identification (see Western Australia v McHenry; Silver v Northern Territory at [91]). In the absence of further evidence, I find that there is no more than a remote possibility that sites or areas of particular significance to the first native title party exist within the proposed licence area.

4. It is relevant that the grantee party has entered into a heritage agreement with the second native title party. I note that a similar agreement was offered to the first native title party but was not accepted. It is not the Tribunal’s role to endorse one agreement over another (see Champion v Western Australia at [46]; Ashwin v Doray Minerals at [38]). Nevertheless, the fact that the grantee party has entered into a heritage agreement with the second native title party and sought to negotiate such an agreement with the first native title party suggests that it is aware of its obligations under the AHA and will take steps to comply with those obligations.

5. On the basis of the material provided, I find that that the proposed licence is unlikely to have any effect on areas or sites of particular significance in accordance with the traditions of the native title parties.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party

Contentions and evidence

1. The first native title party states that it has previously made attempts to settle the matter ‘on the basis of heritage and Aboriginal protection and consultation’ but has not been able to obtain adequate or specific information from the grantee party regarding the proposed exploration activities (NTP Contentions, paragraphs 12-13). I also note the first native title party’s Negotiation Submissions, which provide that an agreement should address matters including:

   ·respect and acknowledgement of the native title party’s native title to the area;

   ·full information about the grantee party’s proposed activities;

   ·rules about the heritage protection of areas of significance and for limiting, restricting or monitoring the activities of the grantee party; and

   ·benefits and compensation payable to the Wutha people.

2. In relation to the grant of the proposed licence, the first native title party contends that, at a minimum, the proposed licence should be the subject of conditions requiring a work programme order and a heritage clearance survey to be conducted with the Wutha people. According to the first native title party, this would ensure that ‘the stories connected with the cultural landscape, sites of significance and other registered native title rights and interests are recorded and not unnecessarily disturbed and indeed made known to the grantee party so as no disturbance will take place’ (NTP Contentions, paragraph 11). As noted above at [73], the first native title party also contends that the proposed licence should be subject to an independent social impact assessment.   

3. In its statement of contentions, the Government party maintains that, until the first native title party provides cogent evidence of the basis for its heritage concerns, they must be taken to have no factual foundation (GVP Contentions, paragraph 63)

Consideration

1. While the Tribunal is obliged to have regard to the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the land or waters concerned, the fact that a native title party has not been able to negotiate an agreement that is satisfactory to it is not on its own sufficient justification for a determination that the act cannot be done (see Adani Mining v Diver at [98]). The material before me suggests that the first native title party is not opposed to exploration as long as it is done on the basis of an agreed heritage process and perhaps following a social impact assessment, though it is not apparent that this was raised in negotiations with the grantee party.

2. The contentions made on behalf of the first native title party suggest that the Wutha people were not satisfied with the level of information provided by the grantee party in relation to its proposal. It is reasonable to infer that the first native title party might have been cautious about giving its consent to the proposed licence if it was unsure about the effect it might have on significant areas or sites and the claim group in general. It is clear the grantee party did provide information about its proposal and discussed its plans with the first native title party, though it is not certain whether it did so at the level of detail required to satisfy the concerns of the claim group or its representatives. On the other hand, the first native title party has not identified any specific concerns in relation to the proposed licence area. Although the Tribunal will take into account the interests, proposals, opinions or wishes of the native title parties, this does not amount to an effective veto over development (see Australian Manganese v Western Australia at [55]-[57]; Western Desert Lands v Western Australia at [161]-[163]). In the circumstances, I have not given particular weight to these matters.

3. In assessing the relative weight to be given to this criterion, I have also taken account of the second native title party’s consent to the proposed licence.     

Section 39(1)(c) – economic or other significance

Contentions and evidence

1. The Government party contends that the grant of the proposed licence is of potential economic significance to the nation, the State and the Shire of Meekatharra. The benefits of the State include potential royalties, and benefits to Australia include employment opportunities and potential export income. The Government party also submits there is likely to be a benefit to the local economy in and around the towns of the Shire and the Goldfields in general (GVP Contentions, paragraphs 64 and 65).

2. The grantee party states that the area covered by the proposed licence is ‘at an early-exploration stage having no known mineral occurrence or past mineral production.’ The grantee party refers to previous exploration, but notes that ‘much of the area remains inadequately tested using modern exploration techniques.’ The grantee party’s letter of 2008 includes a proposed exploration budget of $300,000 across the first two years of exploration. However, I note that the 2008 letter refers to both the proposed licence and E20/661, and it is not clear whether the budget includes both tenements and, if so, how the funds would be distributed between the two.  

Consideration

1. Section 39(1)(c) requires the Tribunal to evaluate the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples or Torres Strait Islanders who live in that area. The focus is on the significance of the act itself, rather than the general significance of exploration or mining to the economy (see Western Australia v Thomas at 175-176; Drake Coal v Smallwood at [102]).   

2. The evidence suggests that the proposed licence area has not been explored to a significant degree. What exploration has occurred in the area and surrounds does not appear to have been encouraging, though the grantee party contends that the area has not been adequately tested using modern exploration technologies. Further economic benefits are likely to flow if a resource is identified, but at the present stage those benefits are purely hypothetical. While it is acknowledged that exploration is a prerequisite to production, I have not given much weight to this possibility.     

3. I accept that the proposed licence will generate some economic benefits through rental payments and expenditure on exploration. The grantee party’s letter of 2008 indicates that exploration expenditure will amount to $300,000 in the first two years of exploration, though this figure may have incorporated planned expenditure on E20/661. As the budget was presumably created using contemporary assumptions, the figure may not be an accurate reflection of the current costs of implementing the grantee party’s exploration programme. At a minimum, the grantee party will need to comply with the expenditure condition in reg 21 of the Mining Regulations. While it is not clear how many personnel will be required to carry out the exploration, I accept that the exploration programme is likely to create opportunities for employment, though it is uncertain to what extent these opportunities will be available to the local population.

4. There is no evidence that the expenditure will directly benefit local Aboriginal people, though it may do so if any Aboriginal people are employed or contracted by the grantee party during exploration. There may also be benefits to local Aboriginal people that will accrue from the grantee party’s agreement with the second native title party, but as the document has not been provided in this inquiry I make no finding in this respect.

5. In conclusion, while the proposed licence is unlikely to be significant from the perspective of the State or national economy, there is likely to be some positive economic benefits arising from the grant.  

Section 39(1)(e) – the public interest

Contentions and evidence

1. The Government party contend that the public interest is served by the exploration of the proposed licence area due to the economic benefits that will accrue at a local, state and national level (GVP contentions, paragraph 66).

Consideration

1. I accept that the economic benefits arising from the exploration will serve the public interest, though I have already noted that these will not be significant.

2. The Tribunal is entitled to have regard to the public interest in exploration and its contribution to the ongoing viability of the mining industry (see Evans v Western Australia at 215). In Western Australia v Thomas at 215-216, the Tribunal accepted that the public interest is served by the maintenance of an active exploration programme and the continuing development of the mining industry (Western Australia v Thomas at 215-216). I find that the proposed licence is consistent with that object and will therefore serve the public interest in a general sense.

Section 39(1)(f) – any other relevant matters

Contentions and evidence

1. The Government party contends that the effect of the proposed licence on the natural environment may be a relevant factor, citing WMC Resources v Evans (1999) 163 FLR 333 at [81] (GVP Contentions, paragraphs 67-68). The Government party submits that any effects on the local environment will be regulated and minimised by:

   ·the limitations imposed by the Mining Act and Mining Regulations, including the conditions deemed to apply by s 63 of the Mining Act;

   ·the proposed conditions; and

   ·the regulatory regime with respect to environmental protection and the protection of Aboriginal heritage.

2. The grantee party contends that the Mining Act places restrictions on the extent to which ground disturbance is permitted under an exploration licence. In particular, the grantee party notes that the holder of an exploration licence may only extract or disturb up to 1,000 tonnes of material from the ground, including overburden. According to the grantee party, this represents 500-600 cubic metres of surface or near-surface material (sand, clay or weathered rock) or 400-450 cubic metres of hard rock, and includes the clearing of exploration tracks, preparation of drill pads and excavation of sumps.

Consideration

1. The Tribunal may have regard to the environmental impact of the future act (see WMC Resources v Evans at [81]). The Tribunal may also have regard to the environmental protection regime as described in Western Australia v Thomas and Minister for Mines v Evans and noted above at [45]-[46].

2. The evidence suggests that the grantee party intends to undertake a range of activities over the proposed licence area, including activities of a ground-disturbing nature. However, these activities will be regulated by the conditions of grant and the environmental protection regime. Specifically, the Mining Act requires a programme of work to be lodged and approved before ground-disturbing equipment may be used. In accordance with its memorandum of understanding with the Environmental Protection Authority, DMP will refer the programme of work for assessment under the EP Act if it is likely to have a significant effect on the environment. The grantee party will also be required to comply with the rehabilitation measures outlined in the proposed conditions.

3. In the absence of evidence regarding any specific environmental considerations that might be associated with the grant of the proposed licence, I am satisfied that the regulatory regime will ensure the proposed licence has minimal impact on the environment.

Conditions

1. The Tribunal has a broad discretion to impose conditions, though it must be exercised by reference to the s 39 criteria and it is controlled by the subject matter, scope and purpose of the Act (see Re Koara People at 93). Conditions will not normally be imposed unless the evidence suggests a need for them (see Magnesium Resources v Puuntu Kunti Kurruma and Pinikura at [92]-[96]).

2. The first native title party makes several submissions throughout its statement of contentions regarding conditions it believes ought to be imposed. First, it is submitted that an independent social impact assessment is necessary prior to any operations on the proposed licence area. Second, it submits that the proposed licence should be subject to a condition requiring ‘a work programme order and site heritage clearance survey’ to be conducted with the first native title party. Third, the first native title party makes reference to a condition requiring permission from or consultation with the Wutha people before the exercise of any ministerial discretion to permit disturbance with sites of significance. Lastly, the first native title party notes that the Government party has not sought to impose any conditions in relation to heritage or consultation generally.

Social Impact Assessment

1. The first native title party submits that an independent social impact assessment ‘needs to be undertaken to determine the nature and scale of the proposed prospecting, exploration and mining and its effect on the social, cultural and economic structures of the Wutha People’ (NTP Contentions, paragraph 10(a)(iii)).

2. In Minister for Mines v Evans, the Tribunal imposed a condition requiring the grantee party to commission a socio-economic impact assessment prior to commencing operations on the tenement. The condition was formulated in circumstances where the grantee party had sought the grant of a mining lease but had no proposal to mine when the matter came for determination and planned to use the lease for further exploration. As it was uncertain whether or when productive mining would occur and there was no information about the probable location or scale of operations, the Tribunal determined that the condition should be imposed.

3. The circumstances of the present matter are quite different to those encountered by the Tribunal in Minister for Mines v Evans. Although the grantee party has not provided a comprehensive work programme, it is reasonably clear what it intends to do. Where the details of a proposal are known, it is Tribunal’s role to conduct an assessment by reference to the factors in s 39 and on the basis of the evidence presented (see Western Australia v Thomas at [265]). As it was, the evidence provided by first native title party made only limited reference to these factors.

4. Another significant distinction is that, unlike the act considered in Minister for Mines v Evans, the proposed licence does not authorise the grantee party to establish mining operations. Exploration is unlikely to have the same impact as mining. Importantly, the condition in Minister for Mines v Evans was designed so that a social impact assessment was only required once there was a proposal to undertake development or productive mining or construction activity. It was not contemplated that the assessment would be required in the case of exploration activity. In the present case, the evidence does not support the imposition of such a condition.

Heritage Survey

1. It is submitted by the first native title party that a work programme order and heritage survey should be undertaken with the Wutha people ‘in order that inter alia the stories connected with the cultural landscape, sites of significance and other registered native title rights and interests are recorded and not unnecessarily disturbed and indeed made known to the grantee party so as no disturbance will take place (NTP Contentions, paragraph 11). It is not clear what is meant by a ‘work programme order.’

2. There is no evidence that sites or areas of particular significance in accordance with the traditions of the native title parties will be affected by the grant of the proposed licence area. I accept there is a possibility that sites or areas of this kind exist within the proposed licence area that have yet to be identified, but given the lack of evidence I have not given particular weight to this possibility.

3. The agreement entered into between the grantee party and the second native title party requires a heritage survey to be undertaken in specified circumstances. Though this agreement is likely to identify any sites or areas that are significant to the second native title party, it may not identify sites or areas that are significant to the first native title party. The grantee party states that it is prepared to engage with Aboriginal persons with appropriate traditional knowledge of the land to ensure that any proposed works will not interfere with any Aboriginal sites that are not recorded on the Register of Aboriginal Sites. It is not clear whether those persons will include members of the first native title party and the grantee party has not indicated how it intends to identify such persons or engage with them. However, I am satisfied that the grantee party is aware of its obligations under the AHA and will take appropriate steps to comply with then.

4. In the circumstances, I have not found that a condition requiring a heritage survey to be undertaken with the first native title party should be imposed.

Permission or consultation prior to exercise on ministerial discretion

1. The first native title party contends that, despite the grantee party’s contention that it will comply with the AHA, the existence of a ministerial discretion under s 18 of the AHA to permit disturbance with sites means there is likely to be interference with areas or sites of particular significance unless a condition is imposed requiring the permission of or consultation with the Wutha people prior to the exercise of the discretion. It is not clear whether it is contemplated that the proposed condition is to be complied with by the grantee party or the Government party or both.

2. A condition requiring the grantee party to obtain the first native title party’s permission before it seeks the Minister’s consent under s 18 would not be consistent with the subject matter, scope and purpose of the Act, as it would amount to a veto on exploration activity (see Re Koara People at 80; Minister for Lands v Strickland). A condition binding the Government party would have the same effect and would also amount to a fetter on the Minister’s discretion (see Minister for Lands v Strickland; Western Australia v Thomas at [262]-[263]).

3. The administrative procedures for obtaining consent under s 18 already contemplate consultation. These procedures are described in Parker v Ammon at [35]-[41]. Briefly, a person seeking to obtain consent must give notice to the Aboriginal Cultural Materials Committee (‘ACMC’). The ACMC is then required to form an opinion on whether there is any Aboriginal site on the land, evaluate the importance and significance of the site and then make a recommendation to the Minister as to whether consent should be given and if so on what conditions. The Minister is not required to follow the recommendation, but is required to consider it ‘having regard to the general interest of the community’ (s 18(3) AHA). The notice to the ACMA must provide a summary of consultations with relevant Aboriginal people and other stakeholders. This would presumably include both native title parties. The summary must provide an outline of: the process used to consult; the basis for selecting those consulted and reasons why others were not consulted; comments made by Aboriginal people about the proposal; the outcomes of the consultation process; and the nature and outcomes of any heritage survey report. As noted above at [85] and [120], the grantee party has indicated that it will consult with relevant Aboriginal people in relation to heritage.

4. The Tribunal has previously imposed conditions requiring notice to be given to the native title party in relation to s 18 applications. In Minister for Mines v Evans, conditions were imposed requiring the grantee party to serve a copy of the notice given to the ACMC on the native title party and required the grantee party to provide the native title party with an opportunity to meet and discuss the application. However, whether such a condition is warranted will depend on the evidence presented. In Western Australia v Thomas, a finding that the evidence merely established the possibility of sites that could be affected by the acts was not considered to provide sufficient basis for imposing a condition requiring notice to be given in the event of a mining proposal. I consider this to be equally applicable to a condition requiring notice or consultation in the event of a s 18 application.

5. In the circumstances, I am satisfied there is no need to impose any condition requiring consultation prior to any application under s 18 of the AHA, or any other condition relating to heritage or consultation.

Conclusion

1. Taking into account the matters referred to above, I consider that the evidence favours a determination that the proposed licence may be done.

Determination

1. The determination of the Tribunal is that the act, being the grant of exploration licence E20/660 to Peregrine Resources Pty Ltd, may be done.

James McNamara
Member
20 June 2014