The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia
[2006] NNTTA 19
•28 February 2006
NATIONAL NATIVE TITLE TRIBUNAL
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, [2006] NNTTA 19 (28 February 2006)
Application No: WF05/10
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into a Future Act Determination Application
The Griffin Coal Mining Co Pty Ltd (grantee party/Applicant)
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Nyungar People (Gnaala Karla Booja) (native title party)
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The State of Western Australia (Government party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 28 February 2006
Catchwords: Native title – future act – application for determination for the grant of coal mining leases – no contentions or evidence submitted by the native title party – no power to make a summary determination – Tribunal obliged to consider factors in s 39 Native Title Act – determination that the act may be done.
Legislation:Native Title Act 1993 (Cth), ss 24MD(3)(a), 31(1)(b), 35, 36(2), 38, 39, 41(3), 75, 76, 77, 139(a), 146(b), 151
Mining Act 1904 (WA) ss 82, 84, 85
Mining Act 1978 (WA) Second Schedule Clause 2(2), 8(1)
Aboriginal Heritage Act 1972 (WA) ss 5, 6, 17, 18, 57, 62
Conservation and Land Management Act 1984 (WA) ss 7, 9
Cases:Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland, NNTT QF05/3 [2006] NNTTA 3 (30 January 2006)) John Sosso
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, NNTT WF05/10, [2005] NNTTA 100 (23 December 2005), Hon C J Sumner
Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003), Hon C J Sumner
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
Western Australia v Ward [2002] HCA 28 (8 August 2002); (2002) 213 CLR 1
Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd, NNTT WF04/11 [2004] NNTTA 108 (1 December 2004) Hon CJ Sumner
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Counsel for the
native title party: Mr Alan Hershowitz
Representative of the Mr Ettienne van Tonder, South West Aboriginal Land and
native title party: Sea Council
Counsel of the
grantee party: Ms Christine Lovitt, Blakiston & Crabb Solicitors
Counsel for the
Government party: Mr Trevor Creewel, State Solicitor’s Office
Representative of the
Government party: Ms Faye Mitchell, Department of Industry & Resources
REASONS FOR FUTURE ACT DETERMINATION
Background
On 7 August 2002, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of a future act, namely the grant of coal mining leases CML12/774, CML12/775, CML12/844 and CML128/45 (‘the proposed mining leases’) under the Mining Act 1978 (WA) to The Griffin Coal Mining Company Pty Ltd (‘the grantee party’). The area, location and percentage to which each of the proposed mining leases as applied for overlap the native title claim is as follows:
CML12/774– 120.94 hectares, 15 kilometres southeast of Collie; 100% overlap;
CML12/775– 107.74 hectares, 16 kilometres southeast of Collie; 100% overlap;
CML12/844 – 124.8 hectares, 10 kilometres east of Collie; 100% overlap; and
CML12/845 – 77.84 hectares, 10 kilometres east of Collie; 100% overlap.
[NOTE: These calculations represent the percentage overlap between the external boundary of the native title determination application and the proposed mining leases and do not take into account areas excluded from the claim (i.e. its internal boundaries).]
The proposed mining leases are future acts covered by s 26(1)(c)(i) of the Act and cannot be validly done unless the right to negotiate provisions of the Act are complied with (Part 2, Division 3, Subdivision P (ss 25-44)).
The native title party in respect of these proceedings is as follows.
Mr Derrick Smith, Mr Franklyn Nannup, Mr Harry Narkle, Mr Joseph Northover, Mr Joseph Walley, Mr Mervyn Abraham, Mr Peter Michael, Ms Barbara Corbett-Stammner and Ms Lorraine Bellotti on behalf of the Nyungar People (Gnaala Karla Booja) (WC98/58). This claim was entered onto the Register of Native Title Claims on 17 September 1998 and has been continuously registered since.
On 1 September 2005, being a date more than six months after the s 29 notice was given, the grantee party made an application pursuant to s 35 of the Act for a future act determination under s 38. The application was made on the basis that the negotiation parties had not been able to reach agreement within six months of the Government party giving notice of intention to do the act.
The native title party challenged the Tribunal’s jurisdiction on the basis that neither the Government nor grantee parties had negotiated in good faith (ss 31(1)(b), 36(2)). This challenge was rejected and reasons published on 23 December 2005 (The Griffin Coal Mining Co Pty Ltd/Nyungar People (Gnaala Karla Booja)/Western Australia, NNTT WF05/10, [2005] NNTTA 100 (23 December 2005) [(‘good faith determination’)]).
Original directions for the substantive inquiry required the native title party to lodge its contentions and evidence by 10 February 2006, later put back to 14 February 2006 at the native title party’s request. On that day Ms Christine Cooper, Principal Legal Officer, South West Aboriginal Land and Sea Council (‘SWALSC’) advised that she had instructions from the native title party not to submit contentions or evidence. She also advised that by not further opposing the application, the native title party did not consent to the mining leases being granted, that its actions were not to be construed as a waiver of any of the native title party’s rights and interests and that the native title party preserved its rights to pursue its claim for native title in the Federal Court. The Tribunal then advised all parties that it proposed to make a determination on the contentions and evidence then before it from the Government and grantee parties. No party opposed this course of action and the Tribunal is satisfied that this matter can be adequately determined ‘on the papers’ (s 151).
The Inquiry
Following acceptance of a future act determination application (ss 75, 76, 77) the Tribunal ‘must’ hold an inquiry into it (s 139(a)); ‘must’ make a determination that the act must not be done or may be done subject to conditions (s 38(1)); and in making its determination ‘must’ take into account certain criteria set out in s 39. Without the benefit of contentions and evidence from the native title party, it is likely that a determination will be made that the act may be done. Proper consideration of the criteria in s 39 will almost certainly require evidence of which only the native title party is aware about the effect of the proposed future act on their enjoyment of the registered native title interests (s 39(1)(a)(i)), sites of particular significance (s 39(1)(a)(v)) and other criteria. It is also impossible to take account of the interests, proposal, opinions or interests of the native title party (s 39(1)(b)) where there is no evidence of them.
In a similar matter (Western Australia/Judy Hughes & Others on behalf of the Thalanyji People, Ronald Crowe and Others on behalf of Gnulli/Rough Range Oil Pty Ltd, NNTT WF04/11 [2004] NNTTA 108 (1 December 2004)(‘Thalanyji’)) I pointed out the unsatisfactory situation created by a native title party’s decision not to participate in a right to negotiate inquiry and raised the possibility that in these circumstances a future act determination application might be determined in a more summary way. No submissions to this effect were made by the Government or grantee parties and in any event in the present matter the native title party’s decision not to lodge contentions and evidence was made at the last minute and after both the Government party and grantee party had complied with the Tribunal’s directions for the production of contentions and evidence. The Tribunal’s present view, subject to receipt of submissions to the contrary in a future matter, is that despite the cost and inconvenience to the other parties and Tribunal, the Act imposes an obligation to consider and take into account the criteria in s 39 for the purposes of making one of the required determinations. The mandatory nature of ss 38 and 39 means that even where a native title party says before compliance by the Government party and grantee party that it will not be making contentions or providing evidence, the Tribunal is obliged to conduct an inquiry which requires the other parties to address the issues dealt with in s 39. There is no means whereby the Tribunal can in a summary manner proceed to make a determination.
The Tribunal has previously considered the nature of a future act determination inquiry and its approach to evidence (Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’) (at 154-163). The Tribunal must act on the basis of evidence which ordinarily will be provided by the parties. There is no onus of proof as such but a commonsense approach to evidence which means that parties will produce evidence to support their contentions particularly where facts are peculiarly within their knowledge. The Tribunal will not normally conduct its own inquiries and obtain evidence, particularly where a party is represented before the Tribunal. If a party fails to provide relevant evidence the Tribunal is normally entitled to proceed to make a determination without it.
In a situation such as the present the Tribunal should make all reasonable efforts to obtain from the parties information about the matters it is required to take into account under s 39, and absent exceptional circumstances, is then entitled to proceed to make a determination on the basis of the material before it. As a general rule there is no obligation on the Tribunal to conduct its own inquiries and obtain evidence in order to make out a party’s case for it. This does not mean that in particular cases where essential evidence is lacking the Tribunal can’t ask the parties to provide it or in some circumstances to make its own inquiries to fill in factual gaps. However, that is not this case. In this matter the native title party has had legal representation throughout by the solicitors employed by SWALSC a designated Native Title Representative Body under the Act, who say they have specific instructions from their clients not to participate. In these circumstances the Tribunal has fulfilled its statutory obligations under the Act by giving the native title party an opportunity to provide contentions and evidence and then proceeding to make a determination on the papers if that opportunity is not taken up. This accords with the approach adopted in Thalanyji and more recently in Cameron/Ernest Hoolihan, Hazel Illin, Elsie Thompson (Gugu Badhun)/State of Queensland, NNTT QF05/3, [2006] NNTTA 3 (30 January 2006), J Sosso (see in particular Member Sosso’s observations at [15]-[17]).
The proposed leases and Government party’s contentions
The s 29 notice says that the Government party proposes to grant the proposed mining leases under the Mining Act 1978 (WA). The applications for the grant of Coal Mining Leases were lodged on 28 June 1979 for CMLs 12/774 and 12/775 and on 8 July 1980 for CMLs 12/844 and 12/845 under the Mining Act 1904 (WA) and before the relevant provisions of the Mining Act 1978 which replaced it came into effect on 1 January 1982. The Transitional Provisions (Second Schedule) of the Mining Act 1978 require an application for a mining tenement made prior to its commencement to be disposed of as if the 1904 Act had not be repealed (Clause 8(1)) and that every coal mining lease granted under the repealed Act shall be deemed to be a lease granted under the 1978 Act and shall be subject to the 1978 Act and the repealed Act, insofar as the terms and encumbrances are not inconsistent with the 1978 Act (Clause 2(2)). It appears then that any terms, conditions or encumbrances that would have been attached to the grant under the 1904 Act continue as though that Act had not been repealed, although the provisions of the 1978 Act would apply in cases of inconsistency. Consequently, there is likely to be little practical difference between the way in which the proposed leases are granted and managed as compared to mining leases granted since the 1978 Act came into effect.
The Mining Act entitles the grantee party to exercise the rights set out in s 85 subject to the covenants and conditions referred to in s 82 and such further conditions and endorsements that the Minister may at any time impose under s 84.
The grant will contain endorsements drawing the grantee party’s attention to relevant legislation namely:
the Aboriginal Heritage Act 1972;
the Water and Rivers Commission Act 1995
the Country Areas Water Supply Act 1947;
the Metropolitan Water Supply Sewerage and Drainage Act 1909.
the Conservation and Land Management Act, 1984 and the Regulations thereunder;
the Bush Fires Act 1954 and Regulations; and
Wildlife Conservation Act 1950 and Regulations thereunder.
The usual conditions applicable to mining leases will be imposed dealing with rehabilitation, approval from the District Mining Engineer for the use of mechanised equipment, environmental assessment and approval by the State Mining Engineer prior to the commencement of any development or productive mining or construction activity (see Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003), Hon C J Sumner at [75], conditions 1-5 and 7).
In addition, a lengthy series of conditions has been identified by the Department of Industry and Resources as a consequence of the location of the proposed lease in areas of State Forest and potable water catchment. In summary, the grantee party will be required to:
Notify the Water and Rivers Commission in writing of any plans to mine within the Wellington Dam Catchment Area prior to those plans being put into operation;
Maintain vegetation buffers along stream and river courses;
Ensure all hazardous chemicals are stored and handled in accordance with Water and Rivers Commission guidelines;
Take active measures to ensure water quality is maintained, including implementing ground water quality monitoring and adhering to relevant Water and Rivers Commission guidelines;
Obtain appropriate licences from the Water and Rivers Commission for any water abstraction from watercourses or wetlands, drainage and works that may disrupt the natural flow of any watercourse;
Give six months notice to the Department of Conservation and Land Management where mining operations are proposed to enter uncleared State Forest to allow extraction of suitable timber or pay the costs of that removal if shorter notice is given;
Pay compensation for clearing State Forest and a royalty for any forest products used in mining operations;
Ensure fire and dieback infection risks are appropriately managed;
Ensure a comprehensive rehabilitation programme is developed and implemented when mining operations cease; and
Pay a bond to ensure all environmental conditions are satisfied
The Government party has confirmed that, as outlined in its letter to parties of 11 February 2003 initiating native title negotiations, the following additional conditions will be placed on the mining leases if there is a determination by the Tribunal that the act may be done:
‘
Any right of the native title party (as defined in Section 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities;
If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party;
Where the grantee party submits to the State Mining Engineer a proposal to undertake development/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding commercially sensitive data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes; and
Upon assignment of the mining lease the assignee shall be bound by these conditions.’
Legal Principles
I rely on the principles enunciated in the following Tribunal future act determinations:
·Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 (‘Koara 1’);
·Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193 (‘Evans’). Federal Court, RD Nicholson J – an appeal from the Tribunal determination in Koara 1;
·Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 (‘Koara 2’) - Tribunal determination following the successful appeal in Evans;
·Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (‘Waljen’); and
·WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (‘WMC/Evans’).
I have also followed the approach of the Tribunal in other matters where the native title party has provided no evidence (see especially Thalanyji, QF05/3 (referred to above) and WF03/2 (referred to above) at [73]-[102]).
Section 38 of the Act sets out the types of determination that can be made being a determination that the act must not be done or may be done with or without conditions. No condition can be imposed entitling a native title party to payments worked out by reference to the amount of profit made, income derived or things produced by the grantee party (s 38(2)).
Section 39 lists the criteria for making such a determination:
‘39 Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non‑native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’
Section 39(1)(a)(i) – enjoyment of registered native title rights and interests
Of the claimed native title rights and interests the following have been registered:
‘(a) rights and interests to exclusively possess, occupy, use and enjoy the area;
…
(c) the right of access to the area;
…
(e) the right to use and enjoy resources of the area;
…(g)the right to maintain and protect places of importance under traditional laws, custom and practices in the area;
…
(i)the right to rear, teach children in their country;
…
(m)the right to manage, conserve and look after the land, waters and resources, including locating and cleaning water sources and drinking water on the land.’
For the purposes of the right to negotiate provisions of the Act, determined and claimed and registered native title rights and interests are treated as being on the same footing. Claimed and registered native title rights are assumed to exist as if they had been determined. However, there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) (Waljen at 166-167; WMC/Evans at 339-341). I have before me no evidence from the native title party as to past, current or potential exercise or enjoyment of native title rights and interests in the area of land the subject of the proposed leases. However, the heritage survey reports tendered by the grantee party (annexures ICP 6 and ICP 8 to the affidavit of Ian Charles Piggott sworn 6 January 2006) evidence that, to the extent it is now possible, the native title party continues to exercise some of its registered rights and interests. In particular, the evidence points to continued access to the area (c), use of resources within it (e), maintenance of sites (g) and management of water sources (m) (ICP 6 folios 38-42). While acknowledging this evidence of the exercise of some native title rights and interests in the general vicinity of the Collie coal field, in the absence of evidence from the native title party I am unable to make an informed finding on whether the activities on the proposed leases will affect the exercise of these rights.
I can also take account of some other factors relating to the nature of the native title rights and interests which may exist. Documents provided by the Government party set out in detail the underlying land tenure affecting the area of land the subject of the proposed leases and can be summarised as follows:
State Forest No 4 (SF4);
Road reserve (Muja Power Station Road affecting CML12/744 and 775);
Conservation and Land Management Forest Lease (L1983/97); and
Freehold land (CG 5192 affecting CML 12/775; PRV 20709/5 ‘Lot 5’ affecting CML12/844 and 845; PRV 20236/6 ‘Lot 6’ affecting CML 12/845, on which the Muja and Collie power stations are constructed).
Each of the proposed mining leases is located adjacent to existing coal mining operations that supply the Collie and Muja power stations and the power generation facilities themselves. There is a long history of active coal mining in this area, dating back to the opening of the first Government mine in December 1898. However, the great bulk of the land covered by the proposed leases is currently held as State Forest, which has the same security of purpose and tenure as ‘A’ class reserves under the Land Administration Act 1997 (WA), requiring the approval of both Houses of Parliament for amendments to be made to its area or purpose (s 9 Conservation and Land Management Act 1984 (WA) “CALM Act’). By operation of Section 7(1) of the CALM Act, State Forest is vested in the Conservation Commission who jointly manages such reserves with other relevant Government agencies. According to the submissions made by the grantee party, a number of cycles of active logging have occurred across all the proposed leases pursuant to this vesting. It is self evident that the coal mining and forestry activities will have adversely affected the capacity of the native title party to enjoy their native title rights and interests. In addition, 25% of CML12/844, 80% of CML12/845 and a very small proportion (less than 0.1%) of CML12/775 is held under freehold grant where native title is extinguished. While there may be questions about the extent to which native title survives over non-freehold land within the proposed leases (see Western Australia v Ward [2002] HCA 28 (8 August 2002); (2002) 213 CLR 1 at [249], [366]-[371]) the claim has been accepted by the Tribunal for registration and no jurisdictional point has been raised in these proceedings that there is no future act because native title will not be affected because it has been extinguished. Consequently, the Tribunal will proceed on the basis that native title has not been extinguished except over the areas of freehold. Nevertheless, it is clear that native title has either been extinguished or substantially impaired by coal mining and forestry activities over the land encompassed by the proposed leases, which will have adversely affected the capacity of the native title party to enjoy their native title rights and interests.
The grantee party provided evidence of the activities it intends to undertake on the proposed leases. In summary, CML12/844 and CML12/845 will primarily be used for stockpiling waste from existing operations and infrastructure, with limited mining planned for the southern portion of these leases. In respect of CML12/774 and CML12/775 it is proposed that both will be used for waste stockpiling, some soil/near surface rock excavation and infrastructure. All of the proposed mining leases would eventually be rehabilitated. While at law native title will not be extinguished by the grant (s 24MD(3)(a) NTA) the proposed activities would during the currency of the operations severely restrict the native title party exercising any native title rights and interests in relation to the proposed lease areas. However, the existing coal mining and forestry operations have already done this over a very long period of time thus making the additional effect of the proposed grant minimal Even if there were some adverse effect on the enjoyment of native title rights and interests by activity on the proposed leases this would be relatively limited taking account of the native title party’s native title rights and interests overall given the size of the Gnaala Karla Booja claim in relation to the relatively small areas of the proposed leases.
Section 39(1)(a)(ii) - way of life, culture and traditions
There is no evidence as to the effect of the proposed permit on this factor.
Section 39(1)(a)(iii) – development of social, cultural and economic structures
There is no evidence of the effect of the proposed permit on this factor. However, the Government party has contended that effect on the development of the social, cultural and economic structures of the native title parties, if any, would be beneficial rather than adverse. This is because development may bring increased community facilities and employment opportunities that would otherwise not be available.
The Tribunal has held that any positive effect of a future act can be taken into account (Waljen at 170). However, the development of the facilities and opportunities referred to by the Government party, and whether the native title party would be in a position to take advantage of them, is purely speculative at this stage and the paucity of evidence in relation to any positive impact for the native title party means that this factor cannot be given any weight.
Section 39(1)(a)(iv) - freedom of access - freedom to carry out rites/ceremonies
There is before me no evidence of any rites, ceremonies or other activities of cultural significance carried out in the land the subject of the proposed leases. The grant of the proposed leases does not confer on the grantee party the right of exclusive possession to the subject area and one of the additional conditions proposed by the Government party (see para [16]) preserves the native title party’s right of access, except where the grantee party’s operational reasons require that access is restricted.
Section 39(1)(a)(v) - sites of particular significance
I have before me evidence of six Aboriginal sites as recorded on the Department of Indigenous Affairs (‘DIA’) Site Register for the purposes of the Aboriginal Heritage Act 1972 (WA), whose mapped boundaries overlap at least to some extent with one or more of the proposed leases (Site ID 603; 4735; 4736; 4737; 4797 and 15331). Most sites are classified as open and constitute small artefact/scatters and an historical campsite and water source most of which were discovered as a direct result of heritage investigations undertaken by the grantee party. However, one of these sites, Shotts Graves (Site ID 15331) is a closed site that is described as comprising skeletal material and burial ground. During the course of the failed negotiations between the grantee and native title parties, concerns were expressed by the native title party regarding this site. As a result, a meeting was held between the grantee and representatives of the native title party to discuss management of this site. Although the Tribunal has no indication of the outcomes of that meeting, the fact of the meeting suggests that this place is of some importance to the native title party. However, the question to be considered is whether any of these places is a site of ‘particular’ significance.
Sites of ‘particular’ significance are those which are of special or more then ordinary significance to the native title claimants (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35). Whilst there is no direct evidence that any of the sites on the Register are of this kind, results of the most recent heritage investigations commissioned by the grantee party do provide some information (annexures ICP 6 to 8 to the affidavit of Ian Charles Piggott sworn 6 January 2006). The Aboriginal community members consulted through this process indicated that they were prepared to support the grantee party if it made application to disturb one of these places (Site ID 603; p 44 annexure ICP 6 to the affidavit of Ian Charles Piggott sworn 6 January 2006) under s 18 of the Aboriginal Heritage Act. The remainder were not put to the survey team for consideration. While the survey party only included one of the named applicants, three other members of it were subsequently nominated by the native title party as part of its negotiating team when agreement with the grantee party still appeared possible (annexure EVT13 to the affidavit of Ettienne Avenant van Tonder sworn 2 December 2005). In addition, the survey party included members of a number of the extended family groups who are described as forming the wider Gnaala Karla Booja claimant group in the native title party’s native title determination application. From this I can infer that the native title party was involved in the survey process and its views have therefore been recorded in respect of one of the known sites, namely that ID 603 (‘Ewington Camp’) was not of ‘particular’ significance. As a general rule in the absence of specific evidence from a native title party expanding on their significance an artefact/scatters site or an historical campsite would not usually be accepted as sites of ‘particular significance’. The fact that in this case these sites are open and have no restrictions imposed on access is consistent with a finding of this kind. However, the nature of the Shotts Graves site and native title party concerns that led to the on-site meeting regarding it, lead to an inference that the Shotts Graves site is likely to be a site of ‘particular’ significance’. A burial site is of the type that would usually qualify as a special site and the fact that it has been designated a closed site supports this finding.
I accept that the Sites Register is not an exhaustive list of all Aboriginal sites in the area and that places other than those described in para [30] might exist and be affected by activities on the proposed leases. The Tribunal has on numerous occasions considered the protective provisions of the Aboriginal Heritage Act 1972 (WA). Pursuant to s 146(b) of the Act I adopt the Tribunal’s findings in Waljen on this topic (at 209-211). The Aboriginal Heritage Act provides for the protection and preservation of a wide range of Aboriginal sites (s 5) and objects (s 6). It is an offence to excavate, destroy, damage, conceal or in any way alter any Aboriginal site (whether on the Register or not) (s 17) without authorisation (s 18), and that offence is punishable by fine or imprisonment or both. Those penalties were increased significantly in amendments to the Aboriginal Heritage Act (No 50 of 2003) which came into effect on 15 May 2004 thus increasing the protective effect of it. The penalty (s 57) for an individual who commits an offence is now $20,000 and infringement for 9 months for a first offence and for a second and subsequent offence the penalty is $40,000 and imprisonment for two years. There are higher penalties for bodies corporate.
In addition to the increased penalties, in December 2005 the Department of Indigenous Affairs revised the process by which Ministerial consent under s 18 of the Aboriginal Heritage Act is sought to disturb a site. The Aboriginal Cultural Material Committee now requires the applicant to outline the nature and extent of consultation with key Indigenous stakeholder groups (which includes native title parties), outline strategies to minimise impacts on sites and complete a declaration that it has read and understood any heritage survey report tendered in support of the application. Applications will now not be considered by the Committee until sufficient information has been submitted by the applicant. This serves to further strengthen the protective regime.
It is a defence to a prosecution under the Act if the person charged can prove that he or she did not know and could not reasonably be expected to have known, that the place was a site covered by the Act (s 62). This defence would not be available to the grantee party. The Department of Industry and Resources sends to grantees of mining leases a document entitled ‘Guidelines for Consultation with Indigenous People by Mineral and Petroleum Explorers’ (updated in July 2004) which outlines relevant legislation and contains detailed guidelines about consultation with Aboriginal people about sites. The standard endorsement on mining leases also draws the grantee party’s attention to the Aboriginal Heritage Act 1972 (WA). With respect to the registered sites, the grantee party is aware of their existence by virtue of heritage investigations it has commissioned, the evidence tendered by the Government party for the good faith hearing (annexure to the affidavit of Faye Juliette Mitchell sworn 13 December 2005, folios 34-64) and a direct meeting between itself and the claim group (para [30]). The grantee party through its contentions has indicated an intention to conduct further heritage surveys over areas not encompassed by any of the investigations previously undertaken in accordance with company policy on such matters. I have no reason to believe that the grantee party will not comply with its obligations under the Aboriginal Heritage Act and take whatever action is necessary to avoid interference with sites of particular significance to the native title party in accordance with their traditions.
Should the grantee party need to consider disturbing any of the sites then one of the additional conditions to be imposed by the Government party (para [16] above) requires notice of the application under s 18 of the Aboriginal Heritage Act and accompanying documents to be given to the native title party which will enable the native title party to be consulted by and make representation to the Aboriginal Cultural Material Committee before it makes any recommendations to the Minister. This requirement constitutes a further protective measure.
Section 39(1)(b) - interests, proposals, opinions or wishes of the native title parties
I have before me no evidence of any interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the area of land the subject of the proposed permit.
Section 39(1)(c) - economic or other significance
The Tribunal has held that it is the economic or other significance of the future act itself which must be considered under this criterion and not its contribution to the maintenance of a viable mining industry overall (although this is a factor which can be taken into account under s 39(1)(e) - public interest) (Waljen at 175-176). However, in this case, the Government party contends that coal mined from the Collie region is vital to Western Australia’s economy as it is the principal source of fuel for electricity generation throughout the state. Although the proposed leases will not be used primarily for productive mining, the Government party further contends that they are integral to the continued mining of adjacent areas. I accept the Government party’s contention. Although the area to be used for actual mining is small, the economic significance of these additional leases must be seen in the context of the coal mining operations as a whole of which waste stockpiling and infrastructure are a necessary part. They are necessary for the maintenance of continuing mining operations which are of considerable economic importance to the State of Western Australia. I can also take into account that activity on the proposed leases will be of some direct economic significance by contributing to continued employment in the Collie region.
Section 39(1)(e) - public interest
The Government party contends that the public interest is served by a healthy economy, which is itself based on continued electricity generation. As noted at para [37], the Collie coal field is the principal supply of fuel for power generation in Western Australia, and on this basis the Government party contends that the public interest is served by the grant of the proposed tenement. I accept this submission.
Section 39(1)(f) - any other relevant matter
The Tribunal has held that environmental controls imposed by the Government party can be taken into account under this heading because they may assist to ameliorate the effect of the future act on some of the factors in s 39(1)(a) (see for example Thalanyji at [45] – [47]). Because of the lack of evidence from the native title party on the s 39(1)(a) factors it is impossible to make specific findings about how the environmental protection regime may assist to reduce the effect of the mining operations on them. While no great weight can therefore be given to this factor I can in a general sense have some regard to the Government party’s environmental protection regime and extensive conditions described above which may assist in maintaining the land in a condition where the exercise of native title rights and interests remains possible. Put at its simplest the environmental controls require rehabilitation of the proposed lease areas thus helping to preserve the capacity of the native title party in future to exercise their native title rights and interests.
Trust condition - ‘compensation’
The Tribunal has power to impose a condition on a determination for the payment of monies into trust by the Government and grantee parties on account of any future claim for compensation by the native title party (s 41(3) NTA). The native title party has made no submissions regarding a payment of monies into a trust for compensation, therefore I have no evidence on which to assess the matter. The native title party’s right to claim compensation through the Federal Court for any loss, diminution, impairment or other effect of the grant of the proposed permit on their native title rights and interests are not affected by this determination.
Conclusion
The task of the Tribunal in making a determination is a discretionary one which involves weighing the various factors in s 39 based on evidence produced (Waljen at 165-166). I have no evidence from the native title party with respect to any matters to be considered pursuant to s 39 of the Act, a situation which makes properly balancing the various interests extremely difficult. Nevertheless, the evidence which does exist points to a situation where in a practical sense there is at best limited current exercise by the native title party of their native title rights and interests over the area of the proposed mining leases or the Collie coal field generally. Historical and current coal mining, while not at law extinguishing native title will already have had a serious adverse impact on the manner in which native title rights and interests can be exercised. On the evidence presented the only substantial issue under s 39(1)(a) is the possible effect of the grants on a site of particular significance. I have taken this possibility into account but am satisfied that the grantee party is aware of its legal obligations and in consultation with the native title party will take steps to ensure that the site is not disturbed or will seek the necessary permissions if this is not in its view possible. The weight of the evidence and particularly the economic significance of the proposal and the public interest in it proceeding support a determination that the acts may be done without conditions.
Determination
The determination of the Tribunal is that the act, namely the grant of coal mining leases CML12/774, CML12/775, CML12/844 and CML128/45 to The Griffin Coal Mining Company Pty Ltd, may be done.
Hon CJ Sumner
Deputy President
28 February 2006
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