Richard Evans and Others on behalf of the Koara People/Western Australia/Quartz Water Leonora Pty Ltd
[2002] NNTTA 55
•22 April 2002
NATIONAL NATIVE TITLE TRIBUNAL
Richard Evans and Others on behalf of the Koara People/Western Australia/Quartz Water Leonora Pty Ltd, [2002] NNTTA 55 (22 April 2002)
Application No: WO01/497
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Richard Evans and Others on behalf of the Koara People (Native Title Party)
- and -
The State of Western Australia (Government Party)
- and -
Quartz Water Leonora Pty Ltd (Grantee Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 22 April 2002
Catchwords: Native Title – future act – proposed grant of miscellaneous licence – expedited procedure objection application – no likelihood of direct interference with community or social activities, interference with sites of particular significance or major disturbance to land - act attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth) ss 151, 237
Mining Act 1978 (WA) ss 20(5), 24, 91-94B
Mining Regulations (WA) ss 37-42B
Cases:Cheinmora v Striker Resources NL (1998) 142 CLR 21
Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002
Little v Western Australia [2001] FCA 1706
Smith v Western Australia (2001) 108 FCR 442
Western Australia/Winnie McHenry (Noongar People) NNTT WO98/125, Hon EM Franklyn QC, 28 July 1999
Solicitor for the
native title party: Ms Kathy Burns, Goldfields Land and Sea Council
Representative of the
Government party: Mr Phil Boyland, Department of Mineral and Petroleum Resources
Solicitor for the
Government party: Crown Solicitor
Representative of the
grantee party: Mr Robert Parkinson, Mining Property Administrator, Anaconda Nickel Limited
REASONS FOR DETERMINATION
Background
On 11 July 2001, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the Government party’) advised its intention to do a future act, namely to grant miscellaneous licence 36/139 for the purpose of a pipeline, bore field, taking water, a power line and road (‘the miscellaneous licence’) to Quartz Water Leonora Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). The miscellaneous licence is over an area of 69,325.76 hectares located 69 kilometres west of Leinster, in the Shire of Leonora (centroid - latitude 27o 54 minutes, longitude 119o 59 minutes). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 12 November 2001, Richard Evans on behalf of the Koara People (‘the native title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure. This application was received by the Tribunal within the statutory timeframe. Section 36 of the Acts Interpretation Act 1901 operates such that the effective closing date is 12 November 2001. The native title party’s Application for Determination of Native Title (WC95/1) was registered by the Tribunal on 8 September 1995. The miscellaneous licence 36/139 is situated on this claim area. It is also situated on the area of the Wutha claim (WC99/10) but no objection has been lodged by these claimants.
The Tribunal accepted the objection application on 23 November 2001.
In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. By the time of an adjourned Listing Hearing on 27 March 2002 all parties had complied with Directions and all indicated that a determination could be made on the papers. I have decided that I can adequately deal with the matter in that way (s 151 NTA).
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.’
Legal principles
In Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002, I considered the legal principles applicable to an expedited procedure objection application inquiry and adopt them for the purposes of this inquiry.
The nature of a miscellaneous licence and activities permitted by it
The Mining Act 1978 (ss 91-94B) and Mining Regulations 1981 (ss 37-42B) provide for the grant of miscellaneous licences. They are ancillary titles used for prescribed purposes in connection with mining operations. There is no statutory limit on the area over which they may be granted. The key relevant features of a miscellaneous licence are as follows:
A miscellaneous licence:
may, subject to the Mining Act and in the case of a miscellaneous licence for water the Rights in Water and Irrigation Act 1914, be granted by the mining registrar or warden for prescribed purposes (Mining Act s 91(1));
can only be granted for a purpose directly connected with mining operations (s 91(6));
is granted for a term of 21 years (s 91B(2)) with a right of renewal for a further 21 years and at the Minister’s discretion for another period not exceeding 21 years (s 91B(3)); and
is deemed to be subject to conditions to:
fill in or otherwise make safe to the satisfaction of the State Mining Engineer all holes, pits, trenches and other disturbances to the surface of the land that are likely to endanger the safety of any person or animal; and
take all necessary steps to prevent fire damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise (ss 92, 46).
The Minister may impose reasonable conditions for the purpose of preventing or reducing, or making good, injury to the natural surface of the land, or to anything on the natural surface of that land or consequential damage to any other land (ss 92, 46A).
A miscellaneous licence is subject to prescribed terms and conditions (s 94(1)) and in addition the mining registrar or the warden may make a miscellaneous licence subject to such further terms and conditions as he thinks fit (s 94(2)).
Within 35 days of lodging an application for a mining licence the applicant must lodge with the mining registrar written details of any works to be constructed and the proposed manner of their construction and any operations to be carried out on the subject land (Mining Regulation 37(3)).
The prescribed purposes for a miscellaneous licence are set out in Mining Regulation 42B and may be granted for:
(a)a road;
(b)a tramway;
(c)an aerial rope way;
(d)a pipeline;
(e)a power line;
(f)a conveyor system;
(g)a tunnel;
(h)a bridge;
(i)taking water;
(ia) a search for groundwater;
(j)hydraulic reclamation and transport of tailings;
(k)an aerodrome;
(l)a meteorological station;
(m)a sulphur dioxide monitoring station; or
(n)any other purpose directly connected with mining operations approved by the Director General of Mines.
Mining Regulation 41 prescribes certain covenants and conditions to be contained on the licence including to pay rents due, continuously to use the licence for the granted purpose, lodge periodical reports, report details of all minerals of economic significance discovered and be liable for forfeiture if any covenant or conditions are breached.
Other mining tenements can be granted and operate concurrently with a miscellaneous licence over the same area of land (s 94A).
Endorsements and Conditions to be imposed on the miscellaneous licence: The licence is subject to endorsements which draw the licensee’s attention to provisions of the Aboriginal Heritage Act 1972; the Rights in Water and Irrigation Act 1914; the Environmental Protection Act 1986; the Waters and Rivers Commission Act 1995; and the Country Areas Water Supply Act 1947. These Acts regulate various aspects of activities which may be conducted pursuant to the miscellaneous licence.
Thirty nine conditions will be imposed. A breach of a condition may lead to forfeiture of the licence whereas a breach of an endorsement does not. The conditions are:
‘ PROPOSED SCHEDULE OF ENDORSEMENTS/CONDITIONS
MISCELLANEOUS LICENCE 36/139
….
CONDITIONS
1.To properly maintain the installations as directed by the Mining Engineer-District Inspector of Mines (the Inspector).
2.To construct a fence around all wells, bores, storage tanks, pumping stations and any other installations as determined by the Inspector having such dimensions and to be constructed of such materials and be of such standard as determined by the Inspector.
3.All topsoil that may be removed ahead of pipelaying operations to be stockpiled for replacement in accordance with the directions of the Inspector.
4.Ingress and egress of pastoralists and tenement holders to be preserved by the construction of vehicular access crossings over any pipeline constructed pursuant to this licence.
5.Wherever any part of a road intersects an existing fence, the holder shall where necessary construct a gate or livestock grid having such dimensions and be constructed of such materials and be of such standard as agreed with the pastoralist or as determined by the Inspector.
6.At the direction of the Inspector the holder shall clear such area about any powerline as determined by the Inspector of any dry or other growth considered by the Inspector to be a potential risk for fire or for any other reason the Inspector may deem is necessary.
7.The road to the constructed using proper materials to suit the purpose for which it is being constructed, and further that it be constructed in a workman like manner and further that it be constructed to the satisfaction of the Inspector.
8.The holder shall maintain the road from time to time as shall be required to ensure that it is safe for the purpose that it is constructed.
9.Development and operations, as approved by the Inspector, being carried out in such a manner so as to create the minimum practicable disturbance to the existing vegetation and natural landform.
10.On the completion of the life of mining operations in relation to this licence the holder shall:
· remove all installations constructed pursuant to this licence;
· cover all wells and holes in the ground to such degree of safety as shall be determined by the Inspector; and
· on such areas cleared of natural growth by the holder or any of its agents, the holder shall plant trees and/or shrubs and/or any other plant as shall conform to the general pattern and type of growth in the area and as directed by the Inspector and properly maintain same until the Inspector advises regrowth is self supporting;
unless the Warden or Minister for State Development orders or consents otherwise.
11.The electrical installation shall meet the requirements of relevant on-site conditions and be carried out to the satisfaction of the Senior Electrical Inspector of the Office of Energy.
12.Within six months of the route for the Road, Pipeline and Powerline corridors (to a maximum width of 150 metres) being known, the licensee is to lodge a surrender of the balance of the area of the licence; unless the Warden or Minister for State Development orders or consents otherwise.
13.No interference with Geodetic Survey Stations SAM 56 & SAM 58 and mining within 15 metres thereof being confined to the below a depth of 15 metres from the natural surface.
14.No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
15.The rights of ingress to and egress from Miscellaneous Licences 36/131, 36135, 36/117, 36/142 & 57/14 being at all times preserved to the licensee and on interference with the purpose or installations connected to the licence.
In respect to the area outlined in “red” (FNA 3937) as shown in TENGRAPH the following
conditions apply:
16.No prospecting, exploration or mining activities being conducted that will interfere with or endanger the construction or operation of the Gas pipeline and associated facilities and rights of ingress to and egress from the area being at all times preserved to the holders, their employees, agents and contractors.
17.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 caring equipment or other mechanised equipment.
18.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
(i) the grant of the licence; or
(ii) 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.
19.The prior written consent of the Minister for State Development being obtained before commencing mining on Trigonometrical Survey Station 39075.
20.Water usage by pastoralists and others to be maintained & protected.
21.Written notification of the time frame, type and extend of activity being forwarded to the Waters and Rivers Commission (WRC) prior to commencement of those activities.
22.Existing tracks to be used where possible. The written approval being obtained from WRC prior to constructing any new vehicle access tracks or roads.
23.Any river, wetland or its fringing vegetation that may exist on site shall not be disturbed or removed without prior written approval from WRC.
24.Clearing of vegetation is prohibited unless written approval or appropriate licensing is obtained from WRC.
25.The rights of ingress to and egress from the licence being at all reasonable times preserved to authorised officers of WRC for inspection and investigation purposes.
26.The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the WRC’s Guidelines and Water Quality Protection Notes.
27.All activities within Public Drinking Water Source Areas shall comply with WRC’s Water Quality Protection Note Land Use Compatibility in Public Drinking Water Source Areas.
28.Certain activities including land clearing camping and drilling within Public Drinking Water Source Areas are prohibited unless written approval has been obtained from WRC.
29.Activities are prohibited within 2 kilometres of the maximum storage level of a reservoir including the reservoir itself, unless the written approval of the WRC is first obtained.
30.Storage and use of hydrocarbons and potentially hazardous substances requires written approval or appropriate permits from WRC.
31.All hydrocarbon or other pollutant spillage being reported to WRC. Remediation shall being to the satisfaction of WRC.
32.Activities prohibited within a 300 metre radius of any observation well in a Priority 1, 2 & 3 (P1, P2 or P3) area unless the written approval of the WRC is first obtained.
33.Activities prohibited within a 500 metre radius in a P1 area or a 300 metre radius in a P2 or P3 area of any Public Drinking Water Source production well or dam, unless the written approval of the WRC is first obtained.
CONSENT TO MINE ON THE DEPOT SPRINGS WATER RESERVE, WATER RESERVES
9295, 12835 AND 18137 GIVEN SUBJECT TO:
34.No exploratory drilling within 500 metres of any existing or future public water supply well without written approval of the Water and Rivers Commission.
35.No exploratory drilling within 30 metres of public water supply, monitoring (observation) bores or wells, without the written approval of the Water and Rivers Commission.
36.The licensee to store all diesel and petrol within a secure containment compound unless contained within the fuel tanks of the drilling rig or support vehicles.
37.The licensee immediately make good damage caused by the spillage of diesel, petrol or other chemical substances at the licensee’s expense and to the satisfaction of the Water and Rivers Commission.
38.All materials with the potential to contaminate water resources being removed during decommissioning.
39.No mining operations being carried out restricting the use of water by any authorised user of any well or bore.’
Intentions of the grantee party
The grantee party participated in the inquiry and provided details of the work to be carried out for the stated purpose of ‘taking water, water management facilities (including bores and bore fields), pipeline, power line and road’. The details of work required to be provided to the mining registrar by Mining Regulation 37(3) were given to the Tribunal. The miscellaneous licence is needed to gain access to groundwater from the Depot Springs paleochannel aquifer to provide process water for the Mount Margaret lateritic nickel project, which is the subject of a feasibility study by Anaconda Nickel Ltd. The Mt Margaret Project is located 60 kilometres northwest of Leonora and has been approved by the Minister following a Public Environmental Review. The large area applied for (69,325 hectares) enables the infrastructure to be located appropriately and with regard to Aboriginal heritage, geotechnical and environmental factors and pastoral and other mining activities. Once the ground water source is defined and the bore and associated infrastructure established the miscellaneous licence can be reduced to the minimum width necessary, estimated by the grantee party to be no more than 100 metres (see also Condition 12). Bores will be installed in accordance with standards laid down under the production licence issued by the Waters and Rivers Commission. Power will be reticulated through overhead lines constructed in accordance with Australian Standards. The power lines will run adjacent to the service road and pipeline if power is not sourced from local alternators. The pipeline will generally be 100 millimetres in diameter but will be 1,000 millimetres adjacent to the bores. The pipe will either be buried or laid on the surface depending on the preference of the pastoralists and native title claimants. If laid on the surface, the pipes will be protected by a light plastic sheeting and cross over points will be provided particularly where the pipeline crosses existing tracks. It is usual for telemetry to be used to control the bores and if they are powered from external sources rather then locally then traffic on the track would be rare, such that maintenance would only need be done annually or biannually. The road will be a light vehicle access and maintenance track following the pipe line. The area of the proposed miscellaneous licence is already substantially covered by two other miscellaneous licences (L39/131 and L39/135 granted on 15 June 2000) used for the search of groundwater and already entitles the grantee party to drill water bores in the area of the proposed miscellaneous licence. The grantee party contends and I accept that once the bore field and infrastructure is established there will be no ongoing disruptive activities. Rehabilitation is required on the completion of mining operations.
The evidence
The Government party’s evidence establishes that the underlying land tenure of the proposed tenement is a combination of Pastoral Leases 3114/620, 3114/790, 3114/585, 3114/1054, 3114/775 and H91295, Reserves 18137, (Water) 39075 (Trigonometrical Station) and 9295 (Water Act 57 Vic No 20) and a road. The Government party contended that s 20(5) of the Mining Act restricts certain mining activities on pastoral leases without the consent of the owner or the warden. It argues that this is one reason why there is not likely to be direct interference with the community or social activities or the native title party. I have considered this contention in previous matters involving exploration licences (see Walley (WO01/179 and WO01/180) at [30] and [37]) and decided that this aspect of the Government Party’s regulatory regime is of little assistance in reducing the likelihood of interference with the community or social activities of a native title party. I come to the same conclusion in this matter.
With respect to the Crown Reserves the Government party contends that s 24 of the Mining Act provides that mining on Reserve land requires the written consent of the Minister for Mines (now Minister for State Development) who may refuse his consent or give his consent subject to such terms and conditions as are specified in the consent. Before giving his consent the Minister must, pursuant to subsections 24(3) – 24(7) of the Mining Act, consult with and obtain either the concurrence or recommendation of the Minister or other body responsible for the Reserve. These provisions, it is contended, are a further reason why there is unlikely to be direct interference with the carrying on of the community or social activities of the native title party. Again in Walley (WO01/179 and WO01/180) at [31] and [36] I dealt with similar contentions relating to a Reserve and found the restrictions on mining relating to it to be of little weight. Although the Reserves are of a different kind in this matter I also find the regulatory regime relating to them of little use to support the Government party’s contention.The Government party’s contentions do not identify whether the Reserves are of the kind which require only consultation or concurrence of the responsible Minister or body. Obviously, if concurrence is required then greater reliance could be placed on the provision, depending on the circumstances. However, the case of Reserve 39075 for a Trigonometrical Station illustrates the difficulties for the Government party in relying on it to support its contentions. Condition 19 will prohibit mining on it without the prior written consent of the Minister for State Development. However it is clear that this is of no help to a contention that this will reduce the likelihood of the works conducted pursuant to the miscellaneous licence directly interfering with the native title party’s community or social activities. The total area of the Reserve is 0.41 hectares being less then 0.1% of the total area of the miscellaneous licence and already has a facility on it.
The information relating to the other Reserves is incomplete. I assume that they are Reserves not otherwise specifically dealt with in s 24(1) and that mining could be permitted with the consent of the Minister for Mines after consulting and obtaining recommendations from the responsible Minister or body. Although not specifically in the Government party’s contentions, I assume that as the Reserves are for water, there would be other statutory requirements that apply to them. Reserve 18137 is said to be for water and is over 615.13 hectares (0.9% of the total miscellaneous licence area) and Reserve 9295 for Water Act 57 Vic No 20 an area 72.55 hectares (0.1% of the total area). They cover a relatively small part of the total area of the miscellaneous licence. No further details of the Reserve are provided nor is there any indication of how the power to restrict mining would be exercised.
In these circumstances I find the existence of the Reserves as of no use in mitigating interference with the native title party’s community or social activities. Ultimately this finding has not been of any significance because of the view I have taken of the native title parties evidence. However I have the impression that the Government party’s contentions in objection matters have become somewhat formulaic and do not always specifically relate to the matters in hand. The contentions about restrictions on mining on pastoral leases are made in all cases despite the Tribunal’s findings that they usually can be given little weight and where Reserves are involved the same general contentions are usually made. Where the Reserve is, for instance, a national park or a class A nature reserve (s 24(1)(b)) where the concurrence of the responsible Minister (and in the case of a mining lease or general purpose lease the concurrence of both Houses of Parliament) for mining is needed and the Reserve is a reasonably large part of the area of the mining tenement, the existence of a Reserve can clearly be relevant to whether the native title party’s activities will be interfered with. However in cases like this, contentions based on limited evidence about Reserves can be given little (if any) weight. The Government party may care to take these comments into account when preparing contentions in future matters.
The Government party advised that there are no Aboriginal communities on or in the vicinity of that land and produced a search of the Aboriginal Sites Register which revealed that there are three sites within the area of the tenement application registered under the provisions of the Aboriginal Heritage Act 1972 (WA). The sites are Gum Well 1, Gum Well 2 and Boundary Well Claypans 1. Gum Well 1 is on the interim register, is classified as having open access, does not have a gender restriction and has an unreliable location classification. The site type is artefact. Gum Well 2 and Boundary Well Claypans 1 are both on the interim register, have open access, do not have a gender restriction and have a reliable location classification. The site types are artefact.
The native title party lodged an affidavit of Richard Evans (a named applicant on the Koara claim) in the following terms.
‘On the 27th day of February, 2002, I, Richard Evans of Gwalia Street Leonora, in the State of Western Australia, Self Employed say as follows:
1.I am one of the Applicants fro the Determination of Native Title WC95/1 that has been lodged with the National Native Title Tribunal.
2.This statement is in support of my objection to the inclusion of a statement that the act is an act attracting the expedited procedure.
3.I am a spokesperson for the Koara people and I have native title rights and interest in the country where the government wants to grant exploration licence; L36/139 (“the said licence”).
4.The Koara people’s native title rights and interests, according to traditional Aboriginal law and custom, mean that we are the custodians of sites, and must protect and care for country, which includes this area.
5.While all the country for which the Koara people have native title rights and interests must be cared for, of particular importance are those areas used for hunting and gathering, and those surrounding and including sites of spiritual significance which are fundamental to Aboriginal customary law.
6.Koara country, including this area, is of particular significance to me because the Koara people have lived and travelled through there for generations.
7.The Koara people have, and continue to utilise the area for hunting, collecting bush medicines and food gathering. There are significant waters sources in the country including the subject land, and we are concerned that any damage to the area may be detrimental to the Koara people, both physically and spiritually.
8.The whole area is significant in that it contains sacred and other sites of significance. These are associated with ceremonies and other aspects of Aboriginal customary law.
9.People who come on to the land without consulting the people who speak for that country may interfere with areas that are of great importance to the Koara people. Given the acts allowable by the said licence, I believe it will interfere with both the physical and spiritual connections, which we have with our country. The Koara people seek to avoid any damage or interference to these sites of spiritual and cultural significance.
10.The Koara people are not opposed to exploration activity but ask that the Grantee Parties take care not to damage that land and the sites in it, given that the said licence broadly covers what the Grantee Party can do to the land and not what the Grantee Party intend to do. The Koara people ask that the Grantee Parties undertake proper survey of this tenement. The Koara people are willing to help the Grantee Party in a heritage protection survey before the Grantee Party commences their operation.’
Community or social activities (s 237(a))
For the objection to be upheld the evidence must show that there is a likelihood in the sense of a real risk that there will be substantial impact on the community or social activities of the native title party. There is no doubt that the work proposed to be done under the miscellaneous licence has the potential to interfere with a native title party’s community or social activities. However, the evidence relating to such activities on the area of this proposed tenement is limited. The native title party relies on the affidavit of Richard Evans. Mr Evans says that the Koara people have and continue to utilise the area for hunting, collecting bush medicines and food gathering (para 7 of his affidavit). A broad statement of this kind is insufficient to support the objection. The nature and frequency of the activities need to be spelled out in greater detail. Mr Evan’s evidence is very general in nature and does not indicate with any degree of specificity the spectrum of community or social activities that take place in the area of the proposed tenement. In addition, the evidence does not provide an indication of the number of people involved in the community or social activities, nor any estimate of the frequency of them.
In addition to the paucity of evidence of relevant activities of the native title party I can also have regard to the substantial size of the area which covers part of six pastoral leases and extends for some 60 kilometres in length and is 10 kilometres wide in parts. The activities under the miscellaneous licence will not take place over this whole area at the same time and any hunting, gathering or camping activities will be able to continue over the area and other parts of the pastoral leases.
Further the Tribunal is entitled in determining the nature and degree of interference to ‘have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation’. (Smith v Western Australia (2001) 108 FCR 442 French J at 451)). Most of the tenement is over pastoral leases and there are roads and tracks, an airfield and a considerable number of wells, bores and windmills, which reflect the presence of non-indigenous interests. The inter relationship between these interests and those of the native title party are not the subject of evidence. For instance, apart from Mr Evans generalised statement, there is nothing from the native title party which deals with the claimants relationship to pastoral lease holders and whether or not there are any impediments to the full exercise of their native title rights. I can infer that the pastoral and other activity undertaken over the years and currently has reduced the full scope of the traditional activities of the native title party. I also note that the grantee party holds miscellaneous licences over substantially the same area which already entitles the grantee party to drill water bores throughout most of the tenement area. There is no evidence of whether any activities have been undertaken pursuant to these licences but these existing rights already have the capacity to cause interference with the native title party’s community or social activities. Taking all these factors into account, but particularly relying on the insubstantial and non specific nature of the native title party’s evidence I find that there is no real risk that their community or social activities will be directly interfered with.
Areas or sites of particular significance (s 237(b))
There are three registered sites within the tenement area but they are not necessarily sites of particular significance to the native title party in accordance with their traditions. They are open artefact sites on the interim register with no gender restrictions. Mr Evans does not specifically refer to these sites in his affidavit and his general statements about the significance of the area are not sufficient to establish these three sites to be of the kind referred to in s 237(b) of the Act.
On the question of areas or sites of particular significance Mr Evan’s evidence is very general. He says that Koara country is of particular significance to him, as is the area of the tenement (affidavit - para 6). He then says that the whole area of the proposed tenement is significant as it contains sacred and other sites of significance which are associated with ceremonies and other aspects of Aboriginal customary law (affidavit para 8). It can be acknowledged that because of their spiritual connection to land and their views on the dreamtime creation, Aboriginal people regard all land as significant to them. However, s 237(b) deals with areas or sites that are special or of more than ordinary significance over and above the general importance with which Aboriginal people regard their land. It is not normally sufficient to simply say that the whole of the claim area is of special significance. Section 237(b) presupposes the existence of a general spiritual and/or physical relationship to land over which native title exists but within which there are special areas or sites according to the traditions of the native title holders. This position has been recognised by the Federal Court in Cheinmora v Striker Resources NL (1998) 142 ALR 21 (per Carr J at 34): ‘A relevant site is one which is of special or more than ordinary significance to native title holders. It is not enough that the site be simply of significance to native title holders.’ Further the particularity of the significance of them must be ‘capable of identification’ (Western Australia/Winnie McHenry (Noongar People) NNTT WO98/125, Hon E M Franklyn QC, 28 July 1999). In Little v Western Australia [2001] FCA 1706 (per RD Nicholson J at [79]) the Federal Court said that the evidence ‘did not go to the nature of the sacredness so that it is not evidence on which a Tribunal could arguably reach a conclusion about the likelihood of a real chance or risk of interference.’
In my view the general statements in Mr Evan’s evidence that the whole claim area is of particular significance or the whole tenement area is significant falls short of establishing that there are special areas or sites of the type referred to in s 237(b) which are likely to be interfered with. Paragraph 8 of his affidavit does not explicitly say that the tenement area or sites have any particular or special significance. Mr Evans says that the tenement area contains ‘sacred and other sites of significance’ which are ‘associated with ceremonies and other aspects of Aboriginal customary law’. This suggests that they may be of particular significance to the native title party but Mr Evans does not provide specific information about the nature of the sites, their location or number. His evidence does not form a sufficiently firm basis for me to conclude that the grantee party’s proposed activities create a real risk of interference with sites of particular significance to the native title party in accordance with their traditions.
The Tribunal acknowledges that there are sensitivities based on Aboriginal traditional law and custom in providing information about sites in public. There may be gender restrictions in relation to them and recriminations if sites are spoken of by the wrong people or the nature of them revealed to the public. However, the Tribunal has processes for receiving evidence in restricted circumstances (that is, in private and by restricting publication of evidence – s 154 and 155 of the Act). It is not necessary for all details of a site to be given or the precise location to be disclosed. However, there should be some evidence identifying the sites, their nature and the basis for their ‘particular’ significance. Unless such evidence is provided the Tribunal has difficulty in assessing whether the existing protective regime in the Aboriginal Heritage Act is sufficient to ensure that there is not likely to be interference with them.
It is accepted that the Register of sites is not a complete record of all Aboriginal sites in a given area. Where sites of particular significance exist, the Tribunal has often found that the protective measures in the Aboriginal Heritage Act, administrative procedures and the presumption of regularity make it unlikely, in the sense that there is no real risk of interference with them (see discussion and cases cited in Walley (WO01/179 and WO01/180) at [11], [50]-[51]). On the evidence of sites provided in this matter the same finding is justified. The grantee party has participated in these proceedings and is aware of its obligations under the Aboriginal Heritage Act. It has undertaken Aboriginal ethnographic surveys of the area of the proposed tenement as part of the regional survey for the Mt Margaret Nickel Project. It contended that the objector declined to participate in the surveys but does not say who did or what the results of the survey were. I draw no adverse inference against the native title party if its members did in fact decline to participate in the survey. Nevertheless, it is apparent that some Aboriginal site survey has been carried out, (presumably with the assistance of other claimants – the Wutha people) thus lessening the likelihood that there will be interference with any sites which exist.
Major disturbance (s 237(c))
This paragraph requires the Tribunal to make a value judgement about whether there is likely to be major disturbance to land judged from the point of view of the general community but having regard to its effect on local people. The Tribunal can have regard to the local Aboriginal people’s concerns about their customs, traditions and culture (Dann v Western Australia (1997) 74 FCR 391). I acknowledge that in some circumstances the proposed activities of the grantee party involving the creation of bores, a pipeline (on or under the ground), power lines and a road could cause major disturbance to land. However, the decision about major disturbance is not made in a vacuum, such that a particular type of disturbance would in all cases be considered as major. The general context in which the works are to be carried out including the location must be considered.
The grantee contends that “the rights bestowed upon the Grantee by the grant of a miscellaneous licence are limited and any ground disturbing activities associated with the exercise of those rights are subject to approval, scrutiny and bonding by the Department of Mineral and Petroleum Resources. In addition, grant of the tenement would carry with it a schedule of conditions designed to minimise the impact on the environment.” I accept that there is a comprehensive regulatory regime in place to minimise the impact of the proposed activities on the land. The presumption of regularity applies to enable the Tribunal to accept that the grantee party will comply with the law and conditions imposed and the Government party will administer the miscellaneous licence activities in accordance with the law.
Whether the regulatory regime is sufficient to prevent the likelihood of major disturbance to the land must also be judged by reference to the nature of the land and the native title party’s attitude to its disturbance. There is no specific evidence of the nature of the area in which the tenement is situated or whether there are any topographical, geological, environmental or other characteristics that might lead to any disturbance being considered major by the general community, including local Aboriginal people. As explained above the tenement area is largely over pastoral lease land where there are already roads or tracks, fences and a considerable number of existing bores. This is not a pristine area from an environmental point of view. The works which are proposed are to some extent similar to those already established. The affidavit of Mr Evans does not specifically address the issue of major disturbance although he refers to his concern that damage to the land may be detrimental to the Koara people (para 7) and the activities may interfere with the physical and spiritual connections they have to their community. While acknowledging the native title party’s concerns I do not think the evidence overall leads to a conclusion that the disturbance to land will be major. In coming to this conclusion I have taken into account the conditions to be imposed including those for rehabilitation at various stages of the works and that once established there will be little activity of the grantee party which will cause further disturbance. More detailed evidence of the nature of the area of the tenement and the native title party’s concerns about how the activities under the miscellaneous licence will impact on specific areas of it is needed to satisfy this paragraph.
Determination
The determination of the Tribunal is that the grant of miscellaneous licence 36/139 to Quartz Water Leonora Pty Ltd is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
22 April 2002
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