Ronald Crowe and Others on behalf of Gnulli/Western Australia/Australian Mineral Mines Pty Ltd - [2010] NNTTA 91

NATIONAL NATIVE TITLE TRIBUNAL

Ronald Crowe and Others on behalf of Gnulli/Western Australia/Australian Mineral Mines Pty Ltd, [2010] NNTTA 91 (1 July 2010)

Application Nos: WO09/716 and WO09/717

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Ronald Crowe and Others on behalf of Gnulli (WC97/28)
(native title party)

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Australian Mineral Mines Pty Ltd
(grantee party)

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The State of Western Australia
(Government party)

DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Neville MacPherson, Member

Place: Melbourne
Date: 1 July 2010

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure is not attracted.

Legislation: Native Title Act 1993 (Cth), 29, 31, 35, 38, 151(2), 155, 237

Mining Act 1978 (WA), ss 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member Daniel O’Dea
Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner, Deputy President
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner, Deputy President
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340)
Ronald Crowe & Ors (Gnulli)/Charlie Lapthorne & Ors (Thudgari People)/Western Australia/Zhukov Pervan, NNTT WO07/806 & WO07/813, [2008] NNTTA 71 (6 June 2008), Member John Sosso (now Deputy President Sosso)
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Western Australia vSmith [200] NNTTA 239; (2000) 163 FLR 32

Solicitor for the

native title party: Ms Brooke Creemers, Yamatji Marlpa Aboriginal Corporation

Representative of the
native title party: Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation

Solicitor of the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office

Representative of the Mr Greg Abbott and Mr Clyde Lannan, Department of Mines and

Government party: Petroleum

Representative of the
grantee party: Mr Tamas Kapitany, Australian Mineral Mines Pty Ltd

REASONS FOR DETERMINATION

On 3 June 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E09/1525 and E09/1526 (‘the proposed licences’) to 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 area, location and extent to which each of the proposed licences is overlapped by the registered native title claim of Gnulli (WC98/62 – registered from 14 April 1997) are as follows:

E09/1525 being an area of 311.68 hectares, located 57 kilometres north west of Gascoyne Junction in the Shire of Carnarvon – overlap 100 per cent;
E09/1526 being an area of 311.31 hectares, located 43 kilometres north west of Gascoyne Junction in the Shire of Carnarvon – overlap 100 per cent.

No other native title claims overlap the proposed licences.

On 5 October 2009, the native title party made an expedited procedure objection applications to the Tribunal in respect of the proposed licences (designated WO09/716 in relation to E09/1525 and WO09/717 in relation to E09/1526).
On 26 October 2009, Deputy President Sumner was appointed as the Member for the purposes of the conduct of the inquiry, and, on the same day, the expedited procedure objection applications were accepted by the Tribunal.
In accordance with standard practice in expedited procedure matters, on 26 October 2009, 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 four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to the resolution of the objection by consent.
At an adjourned status conference on 7 April 2010, following a number of conferences and requests to amend directions to allow further time for negotiations, the representative of the native title party requested the matter proceed to inquiry on the basis of instructions obtained at a working group meeting held on 30 March 2010. Compliance dates were amended on a further two occasions to enable the provision of contentions and evidence by the parties.
On 18 May 2010, I was appointed by Deputy President Sumner as the Member for the purposes of the conduct of the inquiry.
The Government party and the native title party have lodged contentions and evidence in line with the amended directions. The grantee party’s representative lodged submissions in the form of a brief emailed statement on 14 June 2010.
At the listing hearing on 27 May 2010, all parties agreed that the inquiry can be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objections can be adequately so determined (s 151(2) Act).
A Tribunal map, based on the evidence provided by the parties, has also been provided to parties for comment, and I rely on the information contained within it for the purposes of this inquiry.

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 v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles at (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence as described in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation, unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978, which requires approval by the Environmental Officer, DoIR (now DMP), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs to obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237 (b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner, Deputy President (‘Maitland Parker’) at [31]–[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).

Evidence in relation to the proposed acts

Government party documentation establishes the following notable underlying land tenure on the proposed licences:

Vacant Crown Land (overlap: 100 per cent of E09/1525, 86.3 per cent of E09/1526)
Department of Environment and Conservation CPL30 (CALM Purchased Former Pastoral Lease) (overlap: 100 per cent of E09/1525, 86.3 per cent of E09/1526)
Kennedy Range National Park (overlap: 13.7 per cent of E09/1526)

There are no Aboriginal communities identified inside the area of the proposed licences.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals one site registered under the Aboriginal Heritage Act1972 (WA) (‘AHA’) wholly overlapping E09/1525 and partially overlapping E09/1526 (Site ID 6701 – Kennedy Range (Mythological, permanent register, open access, no restrictions)).
There is no current mineral exploration or mining activity in the area of the proposed licences; however, two mineral claims, active between 1973 and 1974, partially overlapped the area and four temporary reserves, active between 1959 and 1982, entirely overlapped the proposed licences. Further, the entire area of the proposed licences falls wholly within petroleum Special Prospecting Authority PA67 (SPA 6/08-9 AO), which was granted on 1 June 2010.
One previously granted tenement, E09/1015, which entirely overlaps E09/1526, was the subject of an objection by the native title party (designated WO03/847). This matter was finalised by way of agreement and the objection was withdrawn.
The proposed licences will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker, at [21], conditions 1-4).
The area of the proposed licences which overlap CALM Purchased Former Pastoral Lease (CPL30) will be subject to conditions regarding rehabilitation and approval for ground-disturbing activity (conditions 5-7).
Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) are included on grant of title which draw the licensee’s attention to the provisions of the AHA and any Regulations thereunder, and the Environmental Protection Act1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage, unless prior permission is obtained.

Native title party evidence

The submissions of the native title party include the affidavits of Ms Maureen Patricia Dodd, affirmed on 31 March 2010, and Ms Carmen Cummings, affirmed on 30 April 2010, and the signed witness statements of Mr Clifton Lockyer and Mr Peace Dodd. The witness statement of Mr Dodd was initially provided unsigned, however, a signed version was provided on 25 May 2010, prior to the listing hearing. Parties did not contest the late provision of this evidence, nor its admissibility for the inquiry.
The native title party requested that, due to its culturally sensitive, and in some cases, gender sensitive, content, the Tribunal make confidentiality orders with respect to the affidavits and witness statements, restricting their use to those persons directly concerned with the inquiry. On 24 May 2010, I directed, pursuant to s 155 of the Act, that the affidavits of Ms Dodd and Ms Cummings not be disclosed to anyone except the parties in the proceedings due to culturally sensitive content. I further made separate directions pursuant to s 155 of the Act that the witness statements of Mr Lockyer and Mr Dodd be kept confidential due to gender sensitive and culturally sensitive content to those male parties in the proceedings. The directions stated that the documents the subject of the s 155 non-disclosure directions be returned to the native title party or destroyed and their destruction to be verified by affidavit or witness statement at the expiration of the appeal period.
The evidence of Ms Dodd, Mr Dodd and Mr Lockyer is uncontested and I accept it. All three deponents state they are either members of the Gnulli Working Group or are authorised to speak for the area of the Gnulli claim affected by the relevant tenements. Although Ms Dodd, Mr Dodd and Mr Lockyer are not persons comprising the applicant and registered Gnulli native title claimants, I accept that each are members of the Gnulli claim group and have the necessary authority to speak for country on behalf of the native title party.
Although the affidavit of Ms Carmen Cummings is subject to a non-disclosure direction, the following information is not culturally sensitive and can be replicated for the purposes of this determination. Ms Cummings is employed as an anthropologist by Yamatji Marlpa Aboriginal Corporation (‘YMAC’); holds a Bachelor of Arts in Anthropology; and has responsibility for anthropological research within the native title party’s claim area. Ms Cummings states that, since June 2009, she has been involved in conducting connection research into the native title party’s claim, including reviewing ethno-historical information and previous anthropological research, interviewing members of the native title party and on-country fieldtrips. Ms Cummings further states that, in the course of this research, she has interviewed four Ingaarda people who hold knowledge about Kennedy Range, being Maureen Dodd, Winston Dodd, Peace Dodd and Clifton Lockyer.

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 them are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450 [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 (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA) to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
Except for the witness statements of Mr Lockyer and Mr Dodd, there is limited material before the Tribunal on the issue of community or social activities by the native title party on or adjacent to the proposed licences. There is in fact no reference to community or social activities in the Statement of Contentions lodged by the native title party, nor consequently is it specifically contended that the grant of the proposed licences will be likely to result in direct interference with the community or social activities of the native title party.
The protected witness statements of Mr Lockyer and Mr Dodd troubled me. I do not think, on reflection, that the statements justify a finding that s 237(a) is triggered whereby there is likely to be interference with community or social activities of the persons who are the holders of native title in relation to the land or waters concerned: but I do believe the said statements corroborate the fact that the area may be of particular significance and that the acts are likely to interfere with areas or sites of such significance, in accordance with their traditions, to the persons who are the holders of native title in relation to the land or waters concerned – see my determination under the next heading. The general area seems to be “site rich” and the specific tenements would appear to be broadly covered by a site of significance.
Neither Ms Dodd nor Ms Cummings depose to any community or social activities on or adjacent to the proposed licences. The evidence produced does not mention access to the area by other members of the native title claimant group except when stating there are many areas that must not be accessed for cultural reasons. Reference to these areas does not specify if those restrictions apply to members of the native title party or the general community as a whole. There are also no communities within or near the tenement area.
The size of the proposed licences is relatively small, comprising a total area of approximately 6.22 square kilometres. Having regard to the small area of the proposed licences and the lack of in-depth information about the native title party accessing the area for community or social activities (save for Mr Lockyer’s and Mr Dodd's witness statements), it is unlikely that there would be a significant intersection between the activities of the grantee party and the community and social activities of the native title party which I can assume are likely to be carried out over the entire area of the Gnulli claim, being 87878.203 square kilometres.
In conclusion, the Tribunal has been presented with a lack of detailed evidence of community or social activities on the area of the proposed licences which would justify, in my opinion, findings that s 237(a) is triggered. In particular, there is no material on the frequency of such activities, although there is some evidence from the witness statements of the nature of those activities. There are no Aboriginal communities on or adjacent to the proposed licences and the small size of the proposed licences would reduce the likelihood of interference with community and social activities. Taking all these factors into account, I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act (‘AHA’) shows one open access site which overlaps the proposed licences. This does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licences 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 AHA protects all Aboriginal sites, whether on the Register or not.

The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licences is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker, at [31]-[38] and at [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member Daniel O’Dea, at [81]-[91] and Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner, Deputy President, at [26]–[34]). The Tribunal must consider, based on the 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.
The bulk of the evidence of the native title party is directed towards paragraph (b) of section 237. Taking into account the cultural sensitivities of the affidavit material lodged with the Tribunal, I will outline, in summary form, the essence of the direct evidence that is of relevance in making a predictive risk assessment pursuant to paragraph 237(b).
In para [30] above I referred to the witness statements of Mr Lockyer and Mr Dodd, and such witness statements being the subject of a confidentiality order relating to their cultural and gender sensitivity. Suffice to say, I am satisfied, as stated in para [30] hereof, that s 237(b) is triggered by Mr Lockyer’s and Mr Dodd’s witness statements: the tenements appear to be covered by a general site of particular significance to the native title party and warrant agreement or arbitration under the NTA, before exploration activity is undertaken on either tenement.
Ms Dodd states there are significant sites throughout the Kennedy Range and within the area of the proposed licences. Ms Dodd states there are massacre sites all through the Kennedy Range as well as a “thalu”, or increase site, for the march fly. Ms Dodd states that, in the area of the proposed licences, there is a keeping place, where ancestors kept spears, boomerangs, shields, fighting sticks, digging sticks and grinding stones, and a men’s business site. The evidence claims that some of these sites can only be visited by initiated male owners of the land, or men accompanied by initiated male traditional owners and that some of these sites are places to which no person should go. If unauthorised persons access these areas they would get sick and possibly die. Ms Dodd also narrates a dreaming story relating to the creation of the Kennedy Range and explains that if a site which is connected to the story is disturbed or damaged this would also result in sickness.
The affidavit of Ms Cummings, in broad terms, adds to the material and confirms thoughts expressed in the witness statements of Mr Lockyer, Mr Dodd and Ms Dodd. Ms Cummings states that the DIA Register of Sites records numerous sites within the Kennedy Range, as well as a single site encompassing the whole of the Kennedy Range. Ms Cummings states that, on the basis of her interviews with the native title party, and the information held in the DIA register, she would characterise the Kennedy Range in its entirety as an area of particular significance.
The grantee party’s submissions state that Mr Tamas Kapitany accompanied Ms Dodd and Mr Lockyer to Mooka Springs mining site, Binthaylia Station, Mardathuna Station and through the Kennedys. The grantee party states that there were no objections to mining in the Mooka Springs area. The grantee party also calls attention to the fact that both sites of the exploration licences are found to be sacred sites despite their small area and that no site inspection was necessary.
Mooka Springs mine site is located some 13 kilometres south of E09/1526 and, therefore, I do not believe the circumstances in that matter are relevant to this inquiry.
I accept that the evidence provided by the native title party in relation to sites, together with information from the DIA register, establishes the existence of sites in the general area, as well as covering the proposed licences. I am satisfied that there are sites, such as massacre sites and men’s sites, of particular significance to the native title party.
I am also satisfied that the Kennedy Range as a whole is a site of great importance to the native title party. This site covers the majority of the proposed licences and its particular significance has been explained by the female deponents and, most immediately, by the male witnesses. Their uncontested evidence highlights that it is a site that is of special or more than ordinary significance to the native title party. Accordingly, I find that the Kennedy Range as a whole is a site of particular significance within the meaning of paragraph 237(b).
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein).
The Government party contends that the AHA applies to the area of the proposed licences and provides protection for Aboriginal areas or sites as defined in section 5 of that Act, of particular significance to the land. The Government party also draws the attention of the Tribunal to the statutory declaration annexed to its contention whereby the authorised agent for the grantee party has declared a Yamatji Land and Sea Council Alternative RSHA has been entered into by the grantee party and the native title party.
The grantee party’s submissions state that it is willing to enter into Yamatji’s “old agreement”, however the new agreement will give “Yamatji full control over my access”. As such the grantee party finds this agreement unacceptable.
Despite the above contentions, the grantee party has not provided any specific evidence of its exploration intentions to determine the type of work that it intends to conduct over the area of the proposed licences. In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
There is no evidence, however, to suggest that the grantee party will not act lawfully and in accordance with the AHA, and its contentions reveal an awareness of its obligations in this respect. The fact that the grantee party was prepared to enter into a previous version of the Yamatji regional standard heritage agreement is a relevant factor which indicates the grantee party’s awareness of the need to avoid interference with sites of particular significance.
Taking all these factors into account, particularly the nature, extent and significance of the sites which have been identified, and that the area of the proposed licences is, in my opinion, site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38).
My findings are consistent with that made in one other objection inquiry in the general area involving the Gnulli native title party, named Ronald Crowe & Ors (Gnulli)/Charlie Lapthorne & Ors (Thudgari People)/Western Australia/Zhukov Pervan, NNTT WO07/806 & WO07/813, [2008] NNTTA 71 (6 June 2008), Member John Sosso, (now Deputy President Sosso).

Major disturbance to land and waters (s 237(c))

No findings in relation to this topic are necessary, as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).

Determination

The determination of the Tribunal is that the grant of exploration licences E09/1525 and E09/1526 to Australian Mineral Mines Pty Ltd are not acts attracting the expedited procedure.

Neville MacPherson
Member
1 July 2010