Peterson on behalf of Wunna Nyiyaparli v BHP Billiton Minerals Pty Ltd
[2014] NNTTA 29
•12 March 2014
NATIONAL NATIVE TITLE TRIBUNAL
Peterson on behalf of Wunna Nyiyaparli v BHP Billiton Minerals Pty Ltd and Another, [2014] NNTTA 29 (12 March 2014)
Application Nos: WO2012/1089, WO2012/1090, WO2012/1091
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Betty Peterson and Others on behalf of Wunna Nyiyaparli (WC2012/001) (native title party)
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The State of Western Australia (Government party)
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BHP Billiton Minerals Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 12 March 2014
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 32(3), 151, 237
Aboriginal Heritage Act 1972 (WA)
Acts Interpretation Act 1901 (Cth)
Mining Act 1978 (WA)
Cases:
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Freddie v Asia Investment Corporation’)
Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Cherel v Faustus Nominees’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99, (‘Cheinmora v Heron Resources’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tullock v Bushwin’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little v Oriole Resources’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Parker v Ammon’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Parker v Iron Duyfken’)
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108 (‘Cooke v Dioro Exploration’)
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas v Northern Territory’)
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith v Western Australia’)
Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72, (‘Goonack v Geotech International’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)
Representatives of the Mr Ambrose Cummins,
native title party: Cross Country Native Title Services Pty Ltd
Representatives of the Ms Caitlin Martin, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representatives of the
grantee party: Ms Rebecca Shanahan, Ashurst Australia
REASONS FOR DETERMINATION
On 11 July 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E47/1585, E47/1586 and E47/1587 (‘the proposed licences’) to BHP Billiton Minerals Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The s 29 notice states that if the proposed licence were to be granted, it would authorise the holder to explore for minerals for a term of five years from the date of grant. Any person who is a registered native title claimant in relation to any of the land or waters covered by the proposed licence within the period of four months after the notification day is a native title party who may, within that four month period, lodge an objection with the National Native Title Tribunal (‘the Tribunal’) against the inclusion of the expedited procedure statement in the s 29 notice (see s 32(3) of the Act). The notification day advised in the notice was 11 July 2012, with the four month period for objection closing on 11 November 2012. By the operation of s 36(2) of the Acts Interpretation Act 1901 (Cth) the closing date for lodging an objection became 12 November 2012, the next working day.
The proposed licences are overlapped by the registered claim of the Wunna Nyiyaparli People (WC2012/001 – registered from 30 March 2012) and are all in the Shire of East Pilbara. The location, claim overlap, and size of each proposed licence is outlined in the table below:
Proposed Licence Wunna Nyiyaparli Claim Overlap Approximate size of Proposed Licence (km2) Location E47/1585 97.46%
221 68 km West of Wiluna E47/1586 100% 221 66 km West of Wiluna E47/1587 33.61% 221 64 km West of Wiluna
On 2 October 2012, expedited procedure objection applications in relation to each of the proposed licences were lodged with the Tribunal by Betty Peterson and Others on behalf of Wunna Nyiyaparli (‘the native title party’). They were accepted by the Tribunal on 19 October 2012.
The proposed licences are also wholly overlapped by the Nyiyaparli registered claim (WC2005/006 – registered from 29 November 2005) (‘Nyiyaparli’), however, no objections were lodged on behalf of this claim.
The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted in relation to each of the proposed licences. These directions allow a period after the closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Department of Mines and Petroleum provided evidence to the Tribunal and other parties on behalf of the Government party on 26 July 2013.
On 2 September 2013, the Tribunal directed these matters be determined by inquiry and amended directions were issued. In compliance with those directions:
·the native title party provided a statement of contentions on 22 September 2013 together with an affidavit of Mr Ernest Coffin, affirmed 20 September 2013 - I accept that Mr Coffin has authority to speak for the native title party in relation to the proposed licences;
·the grantee party provided a statement of contentions on 1 October 2013, together with an affidavit of Mr Alistair Gordon McFarlane (Manager Land Access for the grantee party) affirmed on 1 October 2013, (as well as sending an email to all parties on 21 October 2013 correcting a typographical error in the Government party contentions); and
·the State Solicitor’s Office (‘SSO’) provided the Government party’s statement of contentions on 7 October 2013 (and on 8 October 2013 SSO provided an amended copy of their contentions with some minor corrections).
On 6 January 2014, I was appointed as the member for the purpose of conducting the inquiry in this matter. I consider this a matter which can be determined ‘on the papers’ as provided for in s 151 of the Act, and I note that no party had any concerns in relation to this approach. On 21 January 2014, the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination, and no concerns were raised in response.
Legal principles
Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In relation to the legal principles to be applied in this matter, I adopt those outlined by President Webb in Yindjibarndi v FMG at [15]-[21].
Evidence and Contentions in Relation to the Proposed Act
Government Party
The Government party has provided: a statement of contentions; tengraph plans with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA) (now known as the Department of Aboriginal Affairs (DAA)); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and quick appraisal documents.
Government party documentation establishes the underlying tenure as follows:
Significant Underlying Land Tenure
E47/1585
E47/1586
E47/1587
· Pastoral Lease I957440 (Roy Hill) (97.4%)
· Pastoral Lease 3114/984 (Marillana) (2.5%)
· Road Reserve (<0.1%)
· Two dead explorations licences (encroaching 18.1% and 59.5% respectively), active between 1983 and 1984, now both surrendered
· Pastoral Lease I957440 (Roy Hill) (99.9%)
· Road Reserve (<0.1%)
· Two live miscellaneous licences encroaching by 0.2 per cent and 1.4 per cent respectively.
· Pastoral Lease I957440 (Roy Hill) (33.6%)
· Pastoral Lease 3114/984 (Marillana) (66.1%)
· General lease I154297 (0.3%)
· General Lease I126374 (<0.1%)
· Two live miscellaneous licences (encroaching 20% and 1.1% respectively) and one live mining lease (encroaching 0.1%)
· Three dead explorations licences (encroaching 10.7%, 1.9% and 0.2% respectively), active between 1993 and 2012, now surrendered or expired
· Six dead prospecting licences (encroaching between <0.1 and 0.8%), active between 1993 and 1997, now surrendered or expired
Services affected on E47/1585 include a minor road (Wittenoom Roy Hill Road), four fence lines, one earth dam and one transmission line. Services affected on E47/1586 include two minor roads (one being Wittenoom Roy Hill Road), seven tracks, two fence lines, five yards, five well/bores (three with windmills), one earth dam, one major non-perennial water course and two transmission lines. Services affected on E47/1587 include 13 minor roads, 39 tracks, the Port Hedland-Newman Railway, two buildings, three fence lines, three yards, and five well/bores (four with windmills).
DAA documents provided by the Government party establish there are no registered sites or other heritage places within the area of the proposed licences.
Tribunal mapping indicates there are no Aboriginal communities located upon or near the area of the proposed licences.
The draft tenement Endorsement and Conditions Extract for the proposed licences provided by DMP, and dated 19 July 2013, indicates that the grants will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]), in addition to the endorsements and conditions outlined in Annexure A to this determination.
The Government party state (at 20) that the grantee party entered into an Alternate Heritage Agreement (‘AHA’) with the Nyiyaparli People (whose claim also overlaps the proposed licences, but from which no objection was received, as outlined at [5] above), thereby satisfying the State policy and, in the Government party’s view, demonstrating a willingness to ensure the protection of heritage sites. The grantee party note this agreement was entered into on 26 June 2012. The Government party do note that the native title party in this matter are a distinctly different native title claim group to Nyiyaparli, but contend the grantee party’s willingness to enter into such an agreement is a relevant factor in these proceedings. They outline (at 21) ‘it is State policy that the Grantee Party offer or enter into a heritage agreement with one of the claimant groups’, and in doing so with the Nyiyaparli People ‘the Grantee Party has therefore complied with its obligations under State policy in relation to heritage agreements, and in doing so the Government Party submits the Tribunal can infer that the Grantee Party has demonstrated it willingness to ensure heritage sites are protected’.
The Government party states the grantee party has indicated it will explore for iron ore within the proposed licences and that, in the absence of information detailing how the grantee party intends to exercise its rights, the Tribunal must assume that the grantee party will exercise the full suite of rights conferred under the Mining Act. The Government party state the grantee party’s evidence indicates their awareness of the native title party’s heritage concerns and their intention to conduct work that does not adversely impact on heritage sites. The Government party state there is no basis for a conclusion that the grantee party will not act in accordance with its stated intentions.
The Government party state ‘it is important to remember that this area is already the subject of pastoral leases and is currently and has been the subject of numerous mining tenements in the past, including exploration licences'. However, I do note there is no evidence of mining leases as such. The grantee party, in their contentions (at 10), note underlying tenure in the form of several pending and granted miscellaneous licences ‘which while only covering a small area, potentially permit significant infrastructure’.
Government party - s 237(a)
The Government party accepts, based on the native title party’s affidavit evidence, the community and social activities of camping, hunting, collecting traditional food and medicines and the transfer of inter-generational knowledge about looking after country are carried out by the native title party in the area of the proposed licences. However, they contend that, to the extent the Tribunal finds members of the native title party do carry out these community and social activities, there is not likely to be interference with those activities because:
·the grantee party has indicated its willingness to protect Aboriginal sites by entering into an AHA with Nyiyaparli (who, as noted above, are not the native title party in this matter).
·the area of the proposed licences is and/or has been subject to prior mineral exploration and possible mining activity, and all three proposed licences are significantly overlapped by pastoral leases. Therefore, some of these interests would have at least affected any native title rights to control access to and use of the proposed licence. Further, the activities of the native title party have been ‘subject to, or coexistent with, all of these lawful activities for a significant period of time’;
·there are no Aboriginal communities within the area of the proposed licence;
·the proposed exploration activities planned by the grantee party do not appear likely to have any real disruptive effect on the native title party’s activities, particularly given the grantee party’s intention to conduct their exploration with cultural sensitivity and to maintain good relations with the native title party; and
·hunting and mineral exploration are, by their nature, inherently capable of coexistence and the Tribunal has on numerous occasions found that to be the case and determined that the grant of an exploration licence is not likely to interfere with hunting.
Government party - s 237(b)
In relation to s 237(b), the Government party state that the artefact scatters referred to in the native title party’s affidavit evidence are not registered sites, however they acknowledge that registration is not determinative of whether these sites constitute a ‘site of particular significance’ within the meaning of s 237(b) of the Act.
The Government party rejects the native title party’s contention that mere presence in an area without the native title party’s permission may cause interference.
The Government party state that, in the event there are any sites of particular significance within the proposed licence area, interference is unlikely because:
·The grantee party has indicated that any ground disturbing activities will be conducted in a way that will not adversely impact on heritage sites and which will respect the local Aboriginal cultural concerns;
·The grantee party has offered to work with the native title party to avoid interference with and protection of any heritage sites of particular significance;
·The Government’s endorsements and conditions imposed on the grant of the proposed licences are intended to prevent the concerns put forward by the native title party;
·The area of the proposed licences has been subject to prior mineral exploration and possible mining activity, and is largely covered by pastoral and historical leaseholds; and
·The regulatory regime is likely to prevent interference with any site of particular significance and can provide mechanisms, in consultation with the native title party, for cultural heritage management.
Government party - s237(c)
The Government party states that, as the native title party do not appear to press their objection in relation to s 237(c), the Government party do not propose to address this aspect in their contentions.
Native title party
Native title party - s 237(a)
In regard to s 237(a), the native title party contend the grant of the proposed licences is likely to interfere with the carrying on of the community and social activities of the native title party. They state that interference will occur in relation to the native title party’s camping, hunting and collecting bush food, as well as in relation to the maintenance of the native title party’s consultation and permission process under their traditional laws and customs.
The native title party contentions state (at 6) that this interference would be the direct result of the grant of the proposed licences without the Government requiring, or the grantee party agreeing, to consult in a culturally appropriate manner with the native title party.
The affidavit of Mr Coffin states ‘my family and I carry out traditional activities on the land within the proposed tenements including camping, hunting and getting bush tucker and bush medicines’. Mr Coffin states that exploration activity will scare away bush animals and will destroy plants that the native title party use - however, no information is provided such as which plants or plant types these are, where they may be found on the proposed licences, whether they are available only on these proposed licences, and so on. Mr Coffin states the grantee party need to show respect for the native title party’s law and culture. He states the ‘right way to do it’ is for the grantee party to talk to the native title party about what they want to do and where they want to do it. If this does not happen then it will have a ‘bad effect’ on the community, because ‘we will worry about what BHP might be doing or going to do and we feel like our law and our culture and our rights and responsibilities to our people and our country aren’t being respected’.
Native title party - s 237(b)
The native title party contentions state the affidavit of Mr Coffin establishes the existence of a number of sites of particular significance within the proposed licences. Mr Coffin states ‘[t]here are many artefact scatters on the land covered by the proposed tenements, left by our ancestors. These artefacts are not recorded sites and can only be found by close examination of the country’. Mr Coffin explains these sites are very important to the native title party because they are ‘part of what our old people have left behind’. However, no further information is provided such as why these sites in particular are important or of significance to the native title party, or where they may be, even approximately, on the proposed licences, or why these sites, in comparison to other sites or areas in the native title party claim, are of particular significance.
Mr Coffin states it is not sufficient to just talk to the native title party or show them on a map, and that the proper people should be taken out on a site survey. Mr Coffin also states that a heritage protocol with the Nyiyaparli over the proposed tenements area is not sufficient - Mr Coffin argues that the Wunna Nyiyaparli, the native title party in this matter, are a different claim group with their own registered rights to maintain and to protect places of importance.
The native title party rejects the grantee party’s assertion that the heritage protocol signed with Nyiyaparli adequately addresses heritage issues. The native title party contends that this assertion fails to take account of the following:
·Nyiyaparli is a different claim group, with different members than the native title party;
·Nyiyaparli does not speak for the native title party;
·There is no evidence that the Nyiyaparli heritage protocol would in any way guarantee or facilitate: the provision of information regarding the nature, location and timing of proposed exploration activities by the grantee party in relation to the native title party; or the opportunity for appropriate Wunna Nyiyaparli people to participate in a heritage survey, thereby ensuring the grantee party avoids damage to areas and sites of significance to the native title party.
The native title party contentions state that, due to the presence of sites of significance, and the absence of an agreement between the grantee party and the native title party, the proposed future acts will interfere with sites of significance despite the State’s site protection regime.
The native title party contentions state they are currently undertaking further investigation into significant sites within the area, and seek leave to submit supplementary submissions and evidence in this regard. However, since the native title party’s contentions were lodged, no further submissions have been provided and, on 18 October 2013, the native title party agreed to the matter proceeding on the basis of the material currently before the Tribunal.
Native title party - s 237(c)
The native title party provide a perfunctory statement in relation to s 237(c), contending that the grantee party would have the right to conduct a range of activities that would impact on the native title party’s land in a major way. They state they reserve the right to provide further submissions on this point once information regarding the grantee party’s intentions is available. However, since the native title party’s contentions were lodged, no further submissions have been provided and the native title party agreed to the matter proceeding on the basis of the material currently before the Tribunal.
Grantee party
The grantee party provided a statement of contentions, dated 1 October 2013, as well as the affidavit of Mr McFarlane, the Manager Land Access for BHP Billiton Iron Ore Pty Ltd (‘BHP’). Mr McFarlane states BHP manage the iron ore operations of BHP Billiton companies in the Pilbara, including those of the grantee party.
Mr McFarlane states that BHP intends to use the proposed licences for the conduct of exploration activities for iron ore only, and will meet the conditions imposed on the proposed licences, including those related to rehabilitation and expenditure. Mr McFarlane attests the grantee party has stringent Aboriginal heritage and environment standards which will apply to operations on the proposed licences.
Mr McFarlane states that access required by the grantee party to the proposed licences will, by and large, be periodic and confined to particular areas. He states traditional activities will be temporarily constrained for safety and operational reasons in those areas, but otherwise there will be no cause for preventing the native title party carrying on these activities. Mr McFarlane also addresses Mr Coffin’s concerns in regards to information about the grantee party’s plans and activities on the proposed licences. He states that BHP is prepared to provide information to the native title party to help address their concerns.
Mr McFarlane goes on to outline BHP’s approach to heritage, stating they strive to achieve a balance between:
·The identification, preservation, promotion and protection of the cultural heritage values in the area; and
·Securing the timely access to land and resources to enable the future growth of BHP Billiton’s business.
Mr McFarlane states BHP is aware of its statutory obligations under the Aboriginal Heritage Act, and its approach to heritage exceeds its strict legal obligations under that Act. Mr McFarlane details the principles BHP follow when conducting exploration activities such as those proposed in this case, including:
·BHP engages with Aboriginal people who can speak for country and qualified anthropologists and archaeologists to identify sites prior to conducting ground disturbing activity;
·It is ordinarily reasonably practicable to alter proposed exploration programs to avoid significant sites, and BHP does this;
·Where exploration may affect sites, BHP consults with the Aboriginal people who speak for country to identify practical measures to enable exploration to proceed whilst avoiding or managing the sites at risk;
·Where it is not reasonably possible to avoid a site, BHP will give a section 18 notice under the Aboriginal Heritage Act and will also consult with the appropriate Aboriginal people.
Considering the evidence
Community or social activities (s 237(a))
The relevant Aboriginal community for the purposes of s 237(a) is the Wunna Nyiyaparli people on whose behalf the Wunna Nyiyaparli claim is made, noting that there is no evidence of any localised, residential community within or close to the proposed licence area whose community or social activities may be likely to be interfered with.
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith v Western Australia at [27]).
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver v Northern Territory at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The grantee party’s general approach to its activities and its intentions are outlined at [35]-[38].
The Government party contentions and evidence in relation to s 237(a) is outlined at [12]-[20].
The native title party’s submissions relating to s 237(a) of the Act are outlined at [25]–[27] above.
I accept past and present pastoral and exploration activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party if and where they exist. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that these previous activities will already to some extent have interfered with the native title party’s community and social activities (see Tullock v Bushwin at [122]).
The total area of the Wunna Nyiyaparli claim is approximately 4138 square kilometres and the proposed licences are each approximately 221 square kilometres. Consistent with previous Tribunal decisions, such as Cooke v Dioro Exploration, I find the size of the proposed licence area, in the context of the much larger native title claim area, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out in the proposed licence area).
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Freddie v Asia Investment Corporation, at [14])). In the present matter, the native title party has provided limited affidavit evidence and the contentions relating to this section are brief and of a very general nature.
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place. In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way. I believe this is such a case.
In the circumstances, taking into account the evidence available, I am unable to conclude there would be interference of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted above, it is established in DAA documentation that there are no registered sites within the proposed licence area and no Other Heritage Places. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity.
The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act protects ‘Aboriginal sites’, as defined in s 4 of the Aboriginal Heritage Act, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the Aboriginal Heritage Act applies ‘by the operation of section 5’. While some sites may be administratively assessed as not being an ‘Aboriginal site’ under the Aboriginal Heritage Act, those sites may still be ‘areas or sites of particular significance’ to the native title party ‘in accordance with their traditions’ as per s 237(b) of the Act.
The native title party contentions and evidence directed at s 237(b) of the Act are outlined at [28]-[32] above. This information provides little content as to the nature of any ‘particular significance’ of the areas which are said to be of significance to the native title party. The Government party contentions and evidence are outlined at [12]-[19] and [21]–[23]. In addition, I note the conditions and endorsements to be imposed on the grant of the proposed licences at Annexure A to this decision. The grantee party evidence is outlined at [35]–[38].
The grantee party has outlined its own internal policies and procedures, as well as the processes by which it is bound under the AHA with the Nyiyaparli people, which could be said to minimise the risk of interference with sites or areas of particular significance to the native title party.
The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Parker vIron Duyfken at [39]; Cheinmora v Heron Resources at [43]). I accept the native title party’s contentions that there is a likelihood of sites existing in the proposed licence which are not on the DAA Register. However, I agree with the Government party that the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or the likelihood of them being interfered with.
The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal (see for example, Parker v Ammon (at [31]-[38], [40]-[41]). While the Tribunal has usually found the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Cherel v Faustus Nominees (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance. I am satisfied, based on the available evidence, that the Aboriginal Heritage Act and its associated processes, together with the endorsements and conditions to be placed on the proposed licence, are likely to prevent interference with any area or site of ‘particular significance’, should any exist, in the context of exploration activities.
Taking all of these factors into account, I find there is not a real risk of interference with sites of particular significance as a result of the grant of the proposed licences, as envisioned by s 237(b) of the Act.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little v Oriole Resources at [41]-[57]).
It is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas v Northern Territory at [84]). Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance (see Goonack vGeotech International at [44]).
In this matter, the native title party provided a single paragraph in its contentions in support of s 237(c) applying in relation to these proposed licences. The Government party and grantee party, accordingly, provided little in the way of a response. In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:
·nearly 100 per cent of the proposed licences are covered by pastoral leases and some previous exploration activity has occurred, and is currently occurring, on portions of the proposed licences. As such the Tribunal is entitled to assume some disturbance has already, and will continue to occur;
·The conditions imposed on the proposed licences deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4) and numerous additional conditions and endorsements;
·The grantee party has indicated it will work within the State’s regulatory regime;
·There is no evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters; and
·There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter, as envisioned by s 237(c) of the Act.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licences E47/1585, E47/1586, and E47/1587 to BHP Billiton Minerals Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
12 March 2014
Annexure A: Draft Endorsements and Conditions for Proposed Licences
E47/1585 E47/1586 E47/1587 Conditions
5. The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, 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 details of the grant or transfer.
7. No interference with the transmissions line or the installations in connections therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
In respect to the area designated as AW/66 (Fortescue Marshes) in TENGRAPH the following conditions apply:
8. Written notification, where practicable, of the time frame, type and extent of proposed ground disturbing activities being forwarded to the Department of Environment Karratha seven days prior to the commencement of those activities.
9. Any significant waterway, flowing or not, wetland or its fringing vegetation that may exist on site not being disturbed or removed without prior written approval from the Department of Environment.
10. The rights of ingress to and egress from the Licence being at all reasonable times preserved to officers of the Department of Environment for inspection and investigation purposes.
11. The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Department of Environment’s Guidelines and Water Quality Protection Notes.
12. All Mining Act tenement activities prohibited within 200 metres of RAMSAR or ANCA listed wetlands unless written permission of Department of Conservation and Land Management, in consultation with the Department of Environment, is first obtained.
13. All Mining Act tenement activities prohibited within 200 metres of "Conservation" and "Resource Enhancement" Category wetlands unless written permission of the Department of Environment is first obtained.
14. No activities being carried out within the proposed railway corridor (designated FNA8271) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.
Endorsements
1. The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protections (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
2. The Licensee, pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
3. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4. The Licensee attention is drawn to 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, 1947;
· Water Agencies (Powers) Act 1984;
· Water Resources Legislation Amendment Act 2007.
5. The rights of ingress to 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 DoWs 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
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, 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 details of the grant or transfer.
7. No interference with the transmissions line or the installations in connections therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
8. No activities being carried out within the proposed railway corridor (designated FNA8271) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.
Endorsements
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder.
2. The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protections (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3. The Licensee, pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4. The Licensee attention is drawn to 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, 1947;
· Water Agencies (Powers) Act 1984;
· Water Resources Legislation Amendment Act 2007.
5. The rights of ingress to 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 DoWs 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
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, 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 details of the grant or transfer.
7. Mining within a radius of 150 metres of any Australian Telecommunications Commission microwave repeater station being confined to below a depth of 60 metres from the natural surface.
8. No interference with the Australian Telecommunications Commission microwave repeater station ray-line.
9. No mining on a strip of land 60 metres wide with the Port Hedland-Newman Railway Line as the centreline and no materials being deposited or machinery or buildings being erected on such strip of land.
10. Blasting operations being controlled so that no damage or injury can be caused by fly rock concussion, vibration or other means.
Endorsements
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder.
2. The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protections (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3. The grant of this licence does not include the land the subject of prior Exploration Licence 47/883. 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”.
4. The Licensee, pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
5. The grant of the licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
6. The Licensee attention is drawn to 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, 1947;
· Water Agencies (Powers) Act 1984;
· Water Resources Legislation Amendment Act 2007.
7. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
8. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
9. 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:
10. 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.
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14
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