Raymond Ashwin and Others on behalf of Wutha People/Western Australia/Regis Resources Ltd
[2013] NNTTA 7
•30 January 2013
NATIONAL NATIVE TITLE TRIBUNAL
Raymond Ashwin and Others on behalf of Wutha People/Western Australia/Regis Resources Ltd, [2013] NNTTA 7 (30 January 2013)
Application No: WO12/208-209
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Raymond Ashwin and Others on behalf of Wutha People (WC99/10) (native title party)
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The State of Western Australia (Government party)
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Regis Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 30 January 2013
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), ss 61(2), 66
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/ Western Australia/Zenith Minerals Ltd [2012] NNTTA 77
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/ Emergent Resources Ltd [2012] NNTTA 17
Wilfred Goonack and Others/Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representatives of the Mr Paul Tolcon, MDK Legal Pty Ltd
native title party:
Representatives of the Mr Joshua Berson, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Mr Vic Miasi, Regis Resources Ltd
grantee party:
REASONS FOR DETERMINATION
On 14 December 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E38/2682 and E28/2683 (‘the proposed licences’) to Regis Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licences are situated in the Shire of Laverton. According to the Department of Mines and Petroleum (DMP) notice to grant mining tenements, E38/2682 is 32 BL (graticular block) in size and located 112 kilometres north west of Cosmo Newberry Mission. (The notice states 1 BL equals 2.8 square kilometres, which I take to be an estimation as Government party contentions state the size of this proposed licence is 97.58 square kilometres). E38/2683 is 19 BL in size (stated by the Government party to be 58.01 square kilometres), and located 123 kilometres north west of Cosmo Newberry Mission.
The native title claim of the Wutha People (WC99/10 - registered from 15 June 1999) overlaps E38/2682 by 89.6 per cent and E38/2683 by approximately 11.3 per cent. On 12 March 2012, an expedited procedure objection application was lodged with the Tribunal by Raymond Ashwin and others on behalf of the Wutha native title claim group (‘the native title party’) in relation to the proposed licences.
The proposed licences also overlap the native title claim of Mantjintjarra Ngalia 2 (WC06/6 – registered from 1 April 2009): 97.1 per cent for E38/2682 and 100 per cent for E38/2683. Expedited procedure objection applications in relation to these proposed licences, lodged by Phyllis Thomas and Others on behalf of Mantjintjarra Ngalia 2 (WO12/302-303), were withdrawn pursuant to an agreement. As such, this determination only relates to the overlaps between the Wutha claim and the proposed licences.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 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.
Parties negotiated in relation to a draft heritage agreement for several months.
On 11 July 2012, both the native title party and the grantee party requested that the matter proceed to inquiry. Directions were amended on one further occasion, at parties’ request.
Pursuant to final directions: Department of Mines and Petroleum (DMP) provided evidence to the Tribunal and other parties on behalf of the Government party on 6 August 2012; the native title party provided a statement of contentions on 9 August 2012; and the grantee party provided a statement of contentions and an affidavit of Mr Jens Balkau on 17 August 2012 (with annexures to the affidavit provided on 21 August 2012); and the State Solicitors Office provided the Government party’s statement of contentions in response to the native title party on 26 September 2012. The Tribunal noted that the original Government party information included a Draft Tenement Endorsement and Conditions Extract for E38/2682 only. The Government party provided an amended statement of contentions which referred to conditions and endorsements for E38/2683 on 19 October 2012.
I note that the grantee party’s annexures to the affidavit were received on 21 August 2012, outside of the compliance date of 17 August 2012, and that in correspondence to the Tribunal on that date the grantee party advised that this was due to these annexures being too large to email. I also note the Government party submitted its contentions on 26 September 2012, outside of the compliance date of 24 September 2012, providing an apology but no specific reason. Taking into account s 109(1) of the Act, I accept these submissions but remind parties it is prudent to seek an extension of time prior to a compliance date passing. I deal further with the importance of compliance dates in [16] of this determination.
The native title party states in its contentions (at 12) that it had not filed any affidavit evidence in support of its contentions, requesting instead to call witnesses to give oral evidence at a hearing on country. The native title party contentions outline (at 11) that it intended to call witnesses Ron Harrington-Smith, June Ashwin and Geoff Ashwin for oral evidence only. The contentions state that it chose not to provide affidavit evidence but instead sought an on-country hearing in order that ‘all parties are able to better understand and make a proper determination about the effect the subject future act will have on the land and the registered native title rights and interests’ (at 13). The native title party stated that the evidence of ‘the witnesses’ which would be given orally is of the following nature:
The likelihood of direct interference to the carrying on of the community and social activities of the native title party if the future act is granted (at 14);
The native title party’s traditional relationship with the land and the stories and dreaming told by the Wutha people ‘from generation to generation since time began’ (at 15);
The relationship between the community and social activities of the native title party and the Wutha people’s relationship with the land and the stories and dreaming told by the Wutha people (at 16);
The native title party’s relevant community and social activities including:
oThe responsibility to protect and care for all the country for which the Wutha people hold registered native title rights and interests (at 17(a));
oThe duty to protect and care for those areas surrounding and including sites of spiritual significance, which are fundamental to Aboriginal customary law and sites or particular significance to the Wutha people (at 17(b));
oThe duty to protect and care for areas of particular importance such as those used for hunting and gathering (at 17(c));
oThe activity of exercising the right to negotiate future act proposals on land located within the area of the Wutha people’s native title determination application (at 17(d));
oGenerally and in relation to specific future act proposals, the activity of exercising the Wutha people’s registered native title rights and interests, which (subject to the exclusions listed in the Wutha people’s Form 1 native title determination application) comprise (at 17(e)):
§Rights and interests to possess, occupy, use and enjoy the area within the Wutha people’s native title determination application (the ‘area’);
§The right to make decisions about the use and enjoyment of the area;
§The right of access to the area;
§The right to control the access of others to the area;
§The right to maintain and protect places of importance under traditional laws, custom and practices; and
§The right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area, for example the telling of stories and the continuation of the Wutha people’s oral traditions about their relation to the land.
The Government party submit (at 31 and 34) that these proceedings can be determined ‘on the papers’, as the issues for determination can be adequately dealt with in the absence of the parties, and a hearing in Kalgoorlie or within the proposed licences would not be helpful. In the alternative, the Government party states that the hearing can be held in Perth (at 31). It contends (at 34) that there is nothing particularly novel in either the substantive portion of the native title party’s contentions or the précis of evidence provided at [14]-[18] of those contentions (as outlined above). It also contends (at 35) that the native title party does not explain why an on-country hearing is superior to evidence by way of affidavit, nor what the difficulty in understanding the parties and Tribunal would face if a hearing was to be held in Perth, rather than on-country. At the listing hearing on 11 October 2012, the grantee party advised that it also agreed the matter could be heard on the papers.
On 12 October 2012, I was appointed by President Graeme Neate as the Member for the purpose of conducting the inquiry.
After being appointed to the matter and reviewing the materials, I requested President Graeme Neate on 25 October 2012 to consider ordering a conference be convened between parties’ representatives, pursuant to s150 of the Act, to ascertain whether parties would be able to reach agreement on the outstanding issues. This conference was so ordered, it occurred on 1 November 2012 with Member O’Dea presiding, and I was advised that no agreement could be reached and no further conferences were to be held.
Having reviewed the submissions, I was also satisfied that the matter could be adequately determined ‘on the papers’ as per s 151 of the Act, and parties were advised of this on 25 October 2012. In light of this decision, I directed that the native title party could file affidavit evidence only by 23 November 2012 and the grantee party and Government party could file submissions in response by 7 December 2012. No documents were received from the native title party and, in response to a follow up email from the Tribunal on 12 November 2012, the native title party confirmed they were intending to file an affidavit. The native title party representative indicated they would file affidavit evidence by 7 December 2012 and Tribunal wrote to parties with directions to that effect on 20 November 2012. Documents were still not received from the native title party by 7 December 2012 and in response to a further follow up email from the Tribunal on 12 December 2012, the native title party confirmed that they were still intending to file an affidavit.
The Tribunal wrote to parties on 17 December 2012 indicating that any materials now provided by the native title party would not automatically be accepted, and that the native title party must provide, by 19 December 2012, an explanation of why the compliance date was missed, and an extension not requested prior to the compliance date. The native title party provided a statement to the Tribunal on 19 December 2012 indicating that a Connection to Country report had taken longer to prepare than initially thought. The Tribunal wrote to parties on the same date allowing the native title party to file affidavit evidence together with an explanation why the extension was not applied for prior to the due date, by 21 December 2012, for my consideration as to whether the affidavit evidence would be accepted.
Pursuant to the above direction, the native title party filed affidavit evidence of Ms June Rose Harrington-Smith on 20 December 2012, together with an annexure to that affidavit which was a Copy of Connection to Country Report prepared by AX Cultures dated 16 December 2012. In relation to the original compliance deadline of 7 December 2012, it appeared that the native title party representative simply did not think to request an extension prior to the passing of the compliance date, even though it was the native title party representatives who originally requested compliance to be by 7 December 2012. This prompted the Tribunal to write to parties on 4 January 2013 stating:
Member Shurven has reviewed the explanation provided by the native title party as to why an extension to compliance dates was not sought and considers that it is not ideal that a request was not made prior to the compliance date lapsing. In the Member’s view, it is clear the native title party’s representatives were endeavouring to obtain the material and were liaising with their clients; however, it appears that no thought was given to the compliance date. In that respect, the Member considers that to not accept the material would be overly harsh on the clients, though she notes that their representatives are now on notice that compliance dates are not merely window dressing to an inquiry matter (or indeed to any Tribunal matter). Directions are set to ensure that matters are conducted in accordance with the Native Title Act 1993 (Cth) (see for example s 109(1)) and to ensure that all parties are able to participate in a process that is procedurally fair. Member Shurven has indicated that it is possible that, should compliance dates not be met in the future without good reason, the material provided will not be accepted.
The grantee and Government parties were directed that they may file submissions in response to the affidavit evidence submitted by the native title party on 20 December 2012, by 18 January 2013. Pursuant to these directions, the grantee party submitted a statement dated 9 January 2013, contending that it considered the native title party had adequate time to put forward evidence concerning its objection, that the request for late lodgement was well out of time and the reasons provided for non-compliance were not compelling. The grantee party further submitted that the annexed Connection to Country report to the native title party’s submissions were not specific to the inquiry tenements.
The Government party submitted contentions dated 18 January 2013 in response to the native title party affidavit and Connection to Country report. Those contentions accept that the evidence of Ms Harrington-Smith is an accurate statement of her beliefs and concerns and that those beliefs and concerns are genuinely held. However, the Government Party states that the affidavit is of less assistance on the question of the extent to which the grant of the proposed tenements may interfere with the carrying on of community or social activities, or significant sites (at 3-4). The Government party states that the concerns Ms Harrington-Smith expresses in relation to E38/2682 appear to be speculative in nature, and notes that she does not express any concerns in relation to E38/2683 (at 5). In relation to the annexed Connection to Country report, the Government party notes that the expertise and qualifications of the writer are unknown and it is not clear how it relates to the areas of the proposed tenements. Furthermore, it contends that the Tribunal should not rely on such a report to supply information that does not appear in the native title party’s primary evidence (at 6): WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/ Emergent Resources Ltd [2012] NNTTA 17 at [44] and affirmed in Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation)/ Western Australia/Zenith Minerals Ltd [2012] NNTTA 77 at [34]. In relation to the Ularring site mentioned in the native title party evidence, the Government party states (at 9-10) that the native title party has not provided information as to the location of the Ularring site in relation to the proposed tenements, that there is no evidence that it does fall within the area of the proposed tenements, and that interference with the site is not likely. This is discussed in more detail later in this determination.
Having reviewed these further submissions, I confirmed to all parties by email on 24 January 2013 my acceptance of the native title party evidence, and that the matter could be adequately dealt with ‘on the papers’. No further objections or concerns were raised by any party.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others /Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’), in particular [588]-[589]).
Evidence in relation to the proposed act
The Government party has provided: a statement of contentions; tengraph plan 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); a copy of the tenement applications; a copy of the proposed endorsements and conditions of the grant; the instruments of licence; and tengraph quick appraisals.
Government party documentation establishes the underlying land tenure of the proposed tenements to be as follows:
E38/2682 - General lease J350788 overlaps the proposed tenement at 71.3 per cent and Vacant Crown Land overlaps at 28.7 per cent; and
E38/2683 - General lease J350788 wholly overlaps the proposed tenement.
Government party documentation establishes:
E38/2682 - five previously granted exploration licences which partly overlapped the area and two previously granted prospecting licences which partly overlapped the area, all now surrendered;
E38/2683 - six previously granted exploration licences which partly overlapped the area, all now surrendered, and a temporary reserve granted in 1959 which overlapped 85.2 per cent of the proposed tenement and was cancelled in 1964.
The quick appraisal document shows that services affected in relation to E38/2682 are one minor watercourse, a track and various cliffs/breakaways/rockridges, and services affected in relation to E38/2683 are three minor watercourses and a non perennial lake.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within the proposed licences. The Aboriginal Heritage Inquiry System indicates the following ‘other heritage places’ are located within E38/2682:
Site 22654 – Collurabbie Rock Hole;
Site 22657 – Collurabbie Rock Hole 2;
Site 22665 – Betty’s Bore Rockshelter and Artefact Scatter; and
Site 22666 – Betty’s Bore Rock Hole and Artefact Scatter.
Tribunal mapping confirms the location of these places, and indicates that there are no Aboriginal communities located upon or near the area of the proposed tenements.
The draft tenement Endorsement and Conditions Extract for each of the proposed licences provided by DMP indicates that the grant of the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). The following additional conditions would also be imposed on each proposed licence:
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.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of each of the proposed licences:
1. The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Evidence provided by the grantee party
The grantee party has submitted contentions, work programmes for the proposed tenements and an affidavit of the General Manager Exploration, Mr Balkau, with various annexures.
The grantee party’s contentions indicate (at 5) that its proposed exploration activities are to conduct low impact drilling and other field activities for the duration of approximately one week per year. The grantee party addresses each of the limbs of s 237 as follows:
In regard to s 237(a), the grantee party states (at 5) that its activities will not in any way interfere with the native title party’s community or social activities. The grantee party indicates that it has ‘a standard internal procedure for searching the Department of Indigenous Affairs Sites Register and consulting with traditional informants’ and is fully aware of its obligations under the Act and the Aboriginal Heritage Act1972 (WA) (‘AHA’). It states that the grantee party has had a long history of operating in the relevant area and has previously conducted significant exploration in the area without incident;
In regard to s 237(b), the grantee party reiterates (at 6) that it is fully aware of its obligations under the Act and the AHA and conducts site avoidance surveys before conducting any exploration, and that it has a history of conducting extensive ethnographic and archaeological surveys in respect to the relevant area and has expended more than $10 million in exploration in the area without incident; and
In regard to s 237(c), the grantee party states (at 7) that the grant of the tenement will not involve major disturbance to the land. It states that the tenements are for exploration only and not for developmental mining and are, therefore, for low impact activities only. In addition, they state every care is taken that any drilling programs undertaken will cause the minimum possible damage to the environment, and that no drilling is undertaken without a prior ethnographic survey to establish any areas of significance.
The grantee party states (at 4) that it has offered to enter into the Regional Standard Heritage Agreement (‘RSHA’) with the native title party, having entered into such an agreement with Mantjintjarra Ngalia 2, the other native title party overlapping the proposed tenement.
The grantee party notes (at 8) that it has tried to resolve the relevant objections by negotiating in terms of a Heritage Clearance Agreement with the native title party, however, agreement was not reached due to a difference in respect to a single issue concerning the nomination of an anthropologist acceptable to both parties. It states that the matter could easily be resolved by the native title party signing the RSHA, which the grantee party has with Mantjintjarra Ngalia 2.
The grantee party states (at 9) that it intended to call its Tenement Consultant, Mr Miasi, and its General Manager of Exploration, Mr Balkau, to give evidence concerning the proposed exploration program for the tenements and the ethnographic survey and clearance process that will be undertaken before any exploration is commenced. It states that its witnesses would give any further oral evidence that may be required in support of the grantee party’s contention that the tenements and the activities proposed will not impact on any ethnographic or archaeological areas of any significance due to the survey process it intends to undertake. As noted above (at [11]), the grantee party subsequently agreed to the matter proceeding on the papers.
The affidavit of Mr Balkau is made in the following terms:
I Jens Balkau of 22 Kincardine Crescent, Floreat, in the State of Western Australia, employed as General Manager Exploration, Regis Resources Limited, I being duly sworn make oath and say as follows in support of Applications for Exploration Licences 38/2682 and 38/2683 (“the Tenements”) by Regis Resources Limited (“Regis”):-
1.The applications have been made in accordance with the Mining Act 1978 (WA) in an area generally known as the Collurabbie Project Area situated north of Laverton Western Australia.
2.I have been involved in exploration of the Collurabbie Project area since joining Regis in January 2006.
3.The Collurabbie area, including the area within the Tenements was the subject of an ethnographic report commissed (sic) by Regis in July 2006. This report by independent consulting anthropologist Daniel De Gand is attached as Appendix “A”
4.The area comprised in the Tenements was previously held by Regis as Exploration Licences 38/1070, 38/1075, 38/1135 and 38/1412. DMP Register searches are attached as “Appendix B”
5.More than $2 million has previously been expended by Regis on the relevant land comprised in the Tenements without any damage or disturbance of any ethnographic or archaeological sites. DMP register of expenditure is in Appendix “C”
6.Regis now wishes to regain the relevant ground to conduct further exploration. I anticipate that approximately one week per year will be spent on field activities and I believe that these activities will not limit access by the Objectors. The proposed programs of work for the Tenements are attached in Appendix “D”
7.Exploration Licence 38/2682 encroaches 89.6% on the Objector’s WC99/10 claim area and Exploration Licence 38/2683 encroaches 11.3% on the claim area. DMP Appraisel (sic) for each Tenement is attached in Appendix “E”
Regis has executed a Regional Standard Heritage Agreement with the Mantjintjarra-Ngalia claimants (WC06/06) that covers 100% of the area within the Tenements. The cover page and execution page of this agreement are in Appendix “F”
8.Regis has an ongoing site avoidance process and before exploration is commenced, independent consultant anthgropologist (sic) Daniel De Gand is engaged to consult with the relevant Aboriginal informants and obtain a heritage clearance in respect to the proposed exploration program.
Mr Balkau’s affidavit contains annexures ‘A’-‘F’ as follows:
Annexure ‘A’ – Daniel de Gand, Anthropologist of de Gand Pty Ltd: Report on an Aboriginal Heritage Assessment of the Collurabbie Project Areas North of Laverton, W.A. for Regis Resources NL, July 2006;
Annexure ‘B’ – DMP Mineral Titles Online Register for dead tenements E38/1070, E38/1075, E38/1135, and E38/1412;
Annexure ‘C’ – DMP Mineral Titles Online Register for dead tenements E38/1070, E38/1075, E38/1135, and E38/1412;
Annexure ‘D’ – Jens Balkau, Regis Resources Ltd: New Tenement Application Proposed Two Year Work Programme Collurabbie Greenstone Belt (for E38/2682 and E38/2683) (Report No 2011/25-26), 13 October 2011 (outlined below at [42]);
Annexure ‘E’ – DMP Tengraph quick appraisal for E38/2682 and E38/2683; and
Annexure ‘F’ – Agreement for Heritage Protection over Exploration and Prospecting Tenure between Regis Resources Ltd and Phyllis Thomas, Vanessa Thomas, DW (deceased), Kado Muir, Nancy Gordon and Kalman Murphy on behalf of the Matjintjarra Ngalia #2 Native Title Claim, 30 May 2012.
In relation to the Report at annexure A, it was not clear the extent to which it could assist the Tribunal in this determination. The affidavit referred to the fact that ‘the area comprised in the Tenements was previously...38/1070, 38/1075, 38/1135 and 38/1412’. However, of these four tenements, I could find only reference to E38/1135 within the Report, and a specific link between the current proposed exploration licences and those four previously held exploration licences was not clear. As such, while this Report painted a picture of the general area, it was not relied upon specifically in drawing conclusions regarding the current proposed licences.
The work programmes for the proposed tenements authored by Mr Balkau dated 13 October 2011 state, in summary:
‘Regis has conducted considerable nickel sulphide exploration in the CGB (Collurabbie Grenstone Belt) and is applying for a new exploration licence over part of the CGB north of Laverton to conduct exploration for nickel sulphide and gold mineralisation. Regis has maintained a strategy to advance exploration and evaluation for nickel sulphide and gold mineralisation within the CGB’
‘This strategy has focused on assessing part exploration work and databases and reinterpreting previous work in line with Regis’ nickel sulphide model and gold mineralisation models’
‘Exploration programs are designed to advance the search for nickel sulphide and gold mineralisation based on previous data assessment and applicability to current nickel and gold exploration models’
‘The proposed work programme will be conducted by Regis staff (geologists and field assistants) and will be facilitated from Regis’ Moolart Well gold mine and accommodation facilities. Aircore and RC drilling will be conducted by contractors’
‘Geochemical sampling programmes including drilling samples will be analysed for... mineralisation’
‘Mineral exploration ‘Year One’: a review of previous exploration work conducted by BHP and MIM including soil geochemistry and shallow RAB drill hole geochemistry and more recently by Newmont and Regis. Aeromagnetic data will be assessed to locate prospective ultramafic stratigraphy in the eastern ultramafic zone. A short program of twenty shallow Aircore (up to 1200 metres) holes is proposed on the application to determine the location and depth to the top of the prospective ultramafic units as defined from aeromafic data. Drilling samples will be assayed for base metals and gold’
‘Mineral exploration ‘Year Two’: the proposed minerals exploration programme for the second year will be based upon successful delineation of ultramafic stratigraphy in the first year. Work will focus on further drilling as most of the area tenement application is covered in terrain. Second year Aircore programmes will aim to test the ultramafic stratigraphy at 400m spaced traverses to determine pathfinder element geochemistry to locate nickel sulphide mineralisation. Any anomalous nickel areas may be followed up with some RC drilling’
Evidence provided by the native title party
The native title party contentions address each of the limbs of s 237 as follows:
In regard to s 237(a), the native title party contends that the grant of the proposed tenements are likely to interfere with the carrying on of the community and social activities of the native title party in relation to the land concerned because:
oThe grantee party will be able to exercise rights and interests in land that will interfere with the Wutha people’s ability to access the land (at 5(a));
oThe exercise of such rights and interests by the grantee will place an impediment to the activities of the Wutha native title claim group, such as hunting, gathering, extraction of flora, the use of other resources of the land and any religious, ceremonial and other activities on the land including all registered native title rights and interests as contained in their Form 1 Native Title Determination Application (at 5(b));
oThe exercise of such rights and interests will place an impediment to the carrying on of social activities such as the telling of stories and dreaming and the continuation of oral traditions about the relationship of the Wutha people to the land (at 5(c)); and
oThe native title party repeats paragraph 7 of the Form 4 (at 5(d)). Paragraph 7 of the native title party’s Form 4 states:
This objection application statement has been limited because the area of the proposed act cannot be identified with sufficient particularity by reading the future act notice. The maps provided lack sufficient topographic details to enable to objector to clearly relate the map to the ground and to really know exactly what is being talked about except for its general location.
The objectors have connections to country indentified on the map which includes the future act. These connections include those maintained through hunting game, collecting bush tucker and medicines, as well as visiting and looking after sites. Exploration activity will scare away bush animals especially when people are drilling and using bulldozers and also destroy plants the objectors use for bush tucker and medicines and may also destroy sites. The grant of the future act will significantly impact on the objecting community’s conduct and enjoyment of these activities and the objectors’ spiritual connection with the land.
The objectors can only properly provide permission or further information when they know the intentions of the grantee party and the exact area that will be affected.
The objectors believe the grant of the subject future act over the area of ground applied for will create rights, the exercise of which will involve major disturbance to the land. This includes the right to drill holes and excavate material and other rights as defined in the WA Mining Act 1978. The objectors believe the extraction of material anywhere within the country may create a major disturbance to the land
In regard to s 237(b), the native title party contends that the grant of the proposed tenements are likely to interfere directly with areas or sites of particular significance in accordance with their traditions in relation to the land concerned because:
oNot all sites of particular significance to the Wutha people in relation to the land concerned have been recorded. Until such time as an approved native title party heritage protection survey has been undertaken in relation to the land concerned, it cannot be said with certainty that the grant of the tenements is not likely to interfere with such areas or sites of significance. In any event there are 4 recorded sites on E38/2682 which must be protected (at 6(a));
oThe Government party has not proposed that a condition be imposed requiring the carrying out of an approved Wutha heritage protection survey prior to any grant of the tenements (at 6(b));
oThe Aboriginal Heritage Act 1972 provides for a Ministerial discretion to permit interference with a site or sites (at 6(c));
oThe Government party has not proposed that a condition be imposed requiring the written permission of the native title party prior to any exercise of Ministerial discretion to permit interference with a site or sites located within the areas of the tenements (at 6(d));
oThe Government party has not proposed a condition be imposed requiring the grantee party enter into a Wutha heritage protection agreement (at 6(e));
oThe native title party repeats paragraph 7 of the Form 4 (at 6(f)) (outlined above for s 237(a) evidence).
In regard to s 237(c), the native title party contends that the grant of the tenements is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to land because:
oIt cannot be said with certainty that the rights accorded to the grantee party by the grant of the tenements will not have a significant impact on aboriginal people who use the land (at 7(a)); and
oAccount needs to be taken of the community life, customs, traditions and cultural concerns of the Wutha people. Unless suitable prior arrangements for consultation and access to the land are made with the native title party by way of a Wutha heritage agreement, it cannot be said with certainty that the grant of the tenements is not likely to involve major disturbance to the land, and will create rights whose exercise is not likely to involve major disturbance to the land concerned (at 7(b)).
The native title party contentions also state (at 8) that it stands ready and willing to withdraw the objection in return for an undertaking by the grantee party that it will undertake a Wutha heritage protection agreement before it conducts ground disturbing activities. The native title party indicate (at 9) that it communicated this offer to the grantee party by facsimile dated 31 October 2011 and emails dated 8 May 2012 and 21 May 2012 respectively.
The affidavit evidence of the native title party was provided by Ms June Rose Harrington-Smith on 20 December 2012, together with an annexure to that affidavit which was a Copy of Connection to Country Report prepared by AX Cultures dated 16 December 2012. The affidavit is in the following terms:
I, June Rose Harrington-Smith of 137 Varden Street, Kalgoorlie in the State of Western Australia, Bookkeeper, being duly sworn MAKE OATH AND SAY as follows:
1.I am one of the registered native title claimants of the registered native title claim for and on behalf of the Wutha people being the National Native Title Tribunal No. WC99/10 and Federal Court No. WAD 6064/98 (“the Wutha Claim”).
2.I make this affidavit in support of the Objector’s objections under s32(4) of the NativeTitle Act 1993 (Cth) before the Tribunal being No. WO 12/208-209.
3.I am authorised by the Objector to make this affidavit on their behalf, the contents of which they are in agreement.
4.Save where indicated to the contrary I make this affidavit from facts within my own knowledge.
5.The contents of this Affidavit are true and correct to my own personal knowledge unless otherwise stated in which case the contents are true and correct to the best of my knowledge, information and belief and the source of my knowledge, information and belief is stated therein.
6.I was the person whom commissioned Kymberley Russell as AX Cultures to prepare a connection to country report relating to land the subject of this licence application. The report shows the importance of the country to the Wutha People and some of the history of their association with it. A true copy of that report dated November 2012 is attached as “JRHS-1”.
7.I also note that there are 4 recorded sites on E38/2682 which must be protected but as a Wutha Heritage Protection Survey has not been undertaken on the subject tenement/s there may be more sites.
8.Some of the sites noted in the report are Wingarra Soak, Wrungall Soak and Ularring. Ularring in particular as an important women’s site and is the metamorphosed body of a female Dreamtime Ancestral Woman.
Until full consultation with the Wutha people has been concluded in accordance with the terms and conditions of any relevant agreement, the Objector can only assume the likely impact of the grant of the licence on the registered native title rights and interest.
Similarly to the Report at annexure A of Mr Balkau’s affidavit, the Report annexed to Ms Harrington-Smith’s affidavit was in broad terms. The Report did not identify the area which was the subject matter of the Report, only to say it was a ‘connection to country’ report. It did refer to various features and sites, but none of these were within the proposed licences of the current matter, as seen on Tribunal mapping dated 11 January 2013. For example, Ms Harrington-Smith refers to Wingarra Soak, Wrungall Soak and Ularring. Wingarra Soak is referenced in the Report as having been used for ‘water, seeds and meat’ and for ‘regular meetings’ (at page 11), but it does not say with whom or how often. Tribunal mapping indicates that this Soak is within the native title party claim area, but is some distance to the south west of the proposed licences. The Report also references Ularring, confirming it is an important site ‘used by tribal women from this area for hundreds of years...’ (at 12-13). Again, Ularring Rock and Soak does not appear to be within the claim area and is some distance south west of the proposed licences, and Ularring as a locality is also on or near the claim area, but again some distance away from the proposed licences.
The Report does not appear to reference Wrungall Soak, and Tribunal mapping was unable to locate same – it would be helpful if parties are to rely on sites or areas as being of significance or particular significance, that clear identification of the position of the site or area is made, where possible. In addition, the Report does not mention the specific features which have been recorded by DIA as being ‘other heritage places’ (see [30] of this determination). As such, while this Report painted a picture of an area which is significant to Ms Harrington-Smith and possibly the native title party, it was not relied upon specifically in drawing conclusions regarding the current proposed licences.
Weighing up the Evidence
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken pursuant 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 and Another (2001) 108 FCR 442 (‘Smith’) 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 at [23]). The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith 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 and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’) at [29]-[30], Member Sosso (whose findings 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.
In regard to the grantee party’s intentions (outlined at [34]-[42] above), the Government party response notes that the grantee party:
Is fully aware of its obligations under the AHA and has a standard procedure for searching the Department of Indigenous Affairs Aboriginal Heritage Inquiry System and consulting with traditional informants, and undertakes ethnographic surveys before conducting any exploration to ensure that its activities are in accordance with the AHA and wishes of the traditional informants (at 18(a));
Conducts site avoidance surveys before conducting any exploration and has a history of conducting extensive ethnographic and archaeological surveys in respect of the relevant area (at 18(b));
Takes care that any drilling programs undertaken cause minimum possible damage to the environment and no such drilling is undertaken without a prior ethnographic survey to establish any areas of significance (at 18(c)); and
Will only spend approximately one week per year in the field undertaking drilling and other field activities (at 18(d)).
The Government party contends (at 21) that there is no basis for a conclusion that the grantee party will not act in accordance with its stated intentions, and significant weight should be given to the range of things which the grantee party proposes to do under the tenements, as compared to the activities which the grantee party could do: Western Australia v Smith (2000) 163 FLR 32. The Government party notes (at 57(a)) that the grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive. Any ground disturbing activities (such as exploratory drilling) are intended to be conducted in a way which will not adversely impact on heritage sites which will respect local Aboriginal cultural concerns.
The Government party also notes (at 57(b)) that the grantee party has indicated its willingness to enter into an RSHA type agreement with the native title party and has entered into such an agreement with the Mantjintjarra-Ngalia claimants in the same area. The Government party’s response contends (at 51) that the grantee party’s willingness to enter into an agreement with the native title party is a relevant factor in determining that there is not likely to be interference with the social and community activities of the native title holders (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/ Western Australia/ Faustus Nominees Pty Ltd [2007] NNTTA 15). The Government party response states (at 20) that in general the RSHA provides, amongst other things, that the grantee party must: notify the native title party about proposed on-ground works (whether ground-disturbing or not); provide detailed information about those works before commencing them; consult with the native title party about surveys of the land in relation to ground-disturbing works before carrying out those works; carry out surveys with the participation of the native title party prior to commencing ground-disturbing works in some circumstances; and consult with the native title party before applying for any consent under section 18 of the AHA.
The evidence provided by the native title party is outlined at [43]-[47] above. In summary, the native title party contend that: the grantee party will be able to exercise rights and interests in land that will interfere with the Wutha people’s ability to access the land (at 5(a)), and that the exercise of such rights and interests by the grantee will place an impediment to the carrying on of activities of the Wutha native title claim group, such as hunting, gathering, extraction of flora, the use of other resources of the land and any religious, ceremonial and other activities on the land, including all registered native title rights and interests as contained in their Form 1 Native Title Determination Application (at 5(b)). They also state that the exercise of such rights and interests will be an impediment to the carrying on of social activities such as the telling of stories and dreaming and the continuation of oral traditions about the relationship of the Wutha people to the land (at 5(c)). The native title party refers to its Form 4, where it stated that it has connections to country indentified on the map which includes the future act area, and that these connections include those maintained through hunting game, collecting bush tucker and medicines, as well as visiting and looking after sites. The native title party state that exploration activity will scare away bush animals especially when people are drilling and using bulldozers and also destroy plants used for bush tucker and medicines, and may also destroy sites. The native title party contend that the grant of the future act will significantly impact on the community’s conduct and enjoyment of these activities and their spiritual connection with the land.
In response to the native title party’s evidence, the Government party response states (at 53) that the native title party’s reference to their rights and interests contained in their Form 1 is unhelpful when considering community and social activities carried out in the proposed tenement area.
The Government party states (at 54) that it accepts that the activities listed at 17(a)-(c) of the native title party’s contentions are community and social activities (for example, responsibility to protect and care for country, and a duty to protect and care for sites or particular significance and surrounds).The Government party states (at 55) that it does not accept that exercising the right to negotiate in relation to future act proposals is a community or social activity for the purposes of s 237(a).
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 Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]). The Government party response (at 49) submits that the likelihood of interference directly with the carrying on of community or social activities will only arise if there is evidence of the carrying on of the activities. In the present matter, I agree with the Government party that there is insufficient evidence provided by the native title party about the frequency with which areas within the proposed tenement area are visited for communal or social activities such as hunting and the extraction, gathering and extraction of flora. Based on the available evidence, I cannot say that it appears the activities proposed by the grantee party will directly interfere with the community and social activities associated with the proposed licences.
The Government party response states (at 25-26) that to the extent members of the native title party have concerns about exploration activity in general, or things done by other grantee parties, those concerns are not sufficient to overcome the assumption that the grantee party will comply with the regulatory regime. Rather, the evidence must demonstrate that the particular party undertaking the particular act will not comply with a regulatory regime. I agree with the Government party’s submission that evidence of this type has not been provided by the native title party in this proceeding.
To the extent that the Tribunal may accept that the evidence demonstrates members of the native title party carry out community and social activities, the Government party submits that there is not likely to be direct interference because:
The area of the proposed tenements is also almost entirely covered by a general lease (as outlined in [27] above). In relation to E38/2682, only 28.7 per cent of the proposed tenement area is currently unallocated Crown land. With respect to E38/2683 the entire area of the proposed tenement is covered by a general lease. The carrying on of the community or social activities of the native title party has been subject to, or coexistent with, lawful activities associated with the general lease for a significant period of time. The Tribunal is entitled to take this context into account in determining the likelihood of interference by the proposed tenements. The Government party submits that any interference between the grant of the proposed tenement and the current activities of the native title party in the proposed tenement areas would be the same as, or no more significant than, the previous and continuing use of the area (at 57(c));
There are no Aboriginal communities within the area of the proposed tenement (at 57(d));
The low-scale and infrequent (roughly one week per year) exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon the area of the proposed tenements (at 57(e));
Hunting and gathering and mineral exploration activity are, by their nature, inherently capable of coexistence (at 57(f)); and
Given the limited nature of the rights held by an exploration licensee, there is little prospect of access being prevented in any substantial way (at 57(g)).
I do note that no specific information has been provided about the nature of the general lease which covers a large portion of these proposed licences, or any current conditions which exist on the general lease. As such, it is difficult to say the extent to which activities of the native title party have been interfered with by the general lease. Where such information is to be relied upon by a party, it does assist to have some information about the nature and extent of any competing activities on a certain area.
However, I agree with the Government party (at 57(e)) that although from time to time the grantee party and the native title party may come across one another in the course of their activities in the proposed tenement area, it is not apparent that the social or community activities of the native title party will thereby be prevented or disrupted to any significant extent. The activities of the two parties may intersect, but that does not mean that there is a chance of substantial interference.
Tribunal geospatial services indicate the total area of the Wutha claim is approximately 32,684.37 square kilometres (I note Government party contentions appear to indicate the figure is 61,763 square kilometres, which may be a typographical error) and the proposed licences cover a total of approximately 155 square kilometres. The size of the area of the grantee party’s proposed activities within the overlap between the claim and proposed licence areas in the context of the much larger native title claim, and in the context of the overlap being 89.6 per cent and 11.3 per cent respectively, makes it less likely that exploration activity of the nature outlined in the grantee party’s program of works and Mr Balkau’s affidavit will interfere with the community or social activities described by the native title party.
In the circumstances, taking into account the evidence available, I am unable to conclude that 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, it is established in DIA documentation that there are no Registered Sites within the overlap between the claim and the proposed licence areas. However, this does not mean that there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence/claim overlaps 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 native title party’s contentions directed at s 237(b) of the Act (outlined at [43]-[47] above), in summary, are that there are four recorded sites which fall within the overlap between E38/2682 and the claim area, and not all sites of particular significance to the Wutha people in relation to the land concerned have been recorded. The native title party state that the Government party has not proposed that a condition be imposed requiring the carrying out of an approved Wutha heritage protection survey prior to any grant of the tenements, and notes that the provisions of the Aboriginal Heritage Act 1972 provide for a Ministerial discretion to permit interference with a site or sites.
The Government party response indicates (at 66-67) that there is no evidence before the Tribunal that there are any sites of particular significance within the area of the proposed licences. The Government party contends (at 71) that the AHA is likely to prevent interference with any area or site of particular significance to the native title party. In addition, Mr Balkau has sworn that the grantee party has been operating around or near the area of the proposed licences for some years with no damage or disturbance to sites, which was not challenged by the native title party, and also that prior to exploration they conduct site avoidance surveys.
The Government party response further states (at 72) that in the event of there being any areas or sites of significance within the proposed licences, interference with those areas is not likely for the following reasons:
The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive, and any ground disturbing activities are intended to be conducted in a way that will not adversely impact on heritage sites (at 72(b)); and
The area of the proposed mining tenement has been subject to prior mineral exploration and possibly mining activity. It is also largely covered by a general lease, and as such the activities contemplated by the grantee party in the proposed licence areas area would be the same as, or not more than, the previous and continuing use of the area (at 72(c)).
As outlined earlier in this determination, the Government party has provided no information about the nature and extent of the general lease, so it is difficult to come to any conclusion on the extent to which interference may have already occurred. In addition, there is evidence of exploration on both proposed licences, and prospecting on one, but no evidence of mining activity. However, 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 Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010), Neville MacPherson at [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250, [2005] NNTTA 99 at [43]). 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 sites on the proposed licences, or the likelihood of them being interfered with.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel (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 found to exist.
I am satisfied that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed licences, are likely to prevent interference with any area or site of ‘particular significance’ in the context of the grantee party’s stated program of activities.
Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licences.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party contentions directed at s 237(c) of the Act, in summary, are that it cannot be said with certainty that the rights accorded to the grantee party by the grant of the proposed licences will not have a significant impact on Aboriginal people who use the land, unless suitable prior arrangements for consultation and land access to the land are made with the native title party.
The Government party response (at 78) notes that the native title party’s submissions in relation to s 237(c) are that the grant of the proposed licences is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to the land, because it cannot be said with certainty that the rights accorded to the grantee party will not have a significant impact on the Aboriginal people who use the land. The Government party contends that s 237(c) is in fact primarily concerned with the impact of the future act on the land, not on the people who use the land. I concur with this, in addition to noting, as the Government party does (at 79), that the native title party’s submission does not accurately reflect the predictive assessment undertaken by the Tribunal. It has been 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 and Another (2002) 169 FLR 330; (2002) NNTTA 113 at [84]). Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance: Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72 at [44].
The Government party response notes (at 83) that the grant of the proposed tenement is not likely to involve major disturbance to the land or waters or create rights, the exercise of which is likely to involve major disturbance to land or waters for the following reasons:
· The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive. Any ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites (at 83(a));
· The exercise of rights conferred by the exploration licences will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment (at 83(b));
· Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration (at 83(c));
· The area of the proposed tenement has been subject to prior mineral exploration and possibly mining activity. It is also largely covered by a general lease, so the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area (at 83(d)); and
· It does not appear that the area of the proposed tenements has any particular characteristics that would be likely to result in ‘major disturbance’ to land and waters arising, given the activities being proposed by the grantee party (at 83(e)).
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 above at [74] and the following:
· The conditions imposed on the proposed licences deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4);
· Additional conditions will be imposed;
· The grantee party has agreed to enter the RSHA should the native title party request it;
· The endorsements on the proposed licences direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
· There is no firm 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.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licences E38/2682 and E38/2683 to Regis Resources Ltd, are acts attracting the expedited procedure.
Helen Shurven
Member
30 January 2013
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