Tigan and Others on behalf of the Mayala Native Title Claimants v William Robert Richmond and Another - [2014] NNTTA 55

NATIONAL NATIVE TITLE TRIBUNAL

Tigan and Others on behalf of the Mayala Native Title Claimants v William Robert Richmond and Another [2014] NNTTA 55 (10 June 2014)

Application No: WO2012/0808

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Tigan and Others on behalf of the Mayala Native Title Claimants (WC1998/039) (native title party)

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The State of Western Australia (Government party)

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William Robert Richmond (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  James McNamara, Member
Place:  Brisbane
Date:  10 June 2014

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters - expedited procedure attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 151, 155, 162, 237

Mining Act 1978 (WA), s 57
Aboriginal Heritage Act 1972 (WA), ss 17, 62

Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (‘Campbell v Murchison Metals’)
Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustus Nominees’)
Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion v Western Australia’)
Cheinmora v Striker Resources NL & Ors; Dann v Western Australia (1996) ALR 21; [1997] FCA 1147 (‘Cheinmora v Striker Resources’)
Crowe v Western Australia (2008) 218 FLR 429; [2008] NNTTA 71 (‘Crowe v Western Australia’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Lungunan v Geotech International’)
Dann v Western Australia (1997) 74 FCR 391; (1997) FCA 332 (‘Dann v Western Australia’)
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 (‘Murray v Money’)
Hughes v Western Australia (2003) 182 FLR 362; [2003] NNTTA 69 (‘Hughes v Western Australia’)
Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo & Jabirr Jabirr Peoples/Western Australia/Kimberley Quarry Pty Ltd [2008] NNTTA 118 (‘Roe v Kimberley Quarry’)
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri Traditional Lands Association v ASJ Resources’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (‘Tullock v Allarrow’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Western Australia’)
Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)
Monadee v Western Australia (2003) 174 FLR 381; [2003] NNTTA 38 (‘Monadee v Western Australia’)
Paddy Neowarra on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd [2007] NNTTA 11 (‘Neowarra v Swancove Enterprises’)
Rosas v Northern Territory (2002) 169 FLR 330; [2002] NNTTA 113 (‘Rosas v Northern Territory’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Tigan and Others on behalf of the Mayala Native Title Claimants/Western Australia/William Robert Richmond/Drill Gold Pty Ltd [2009] NNTTA 167 (‘Tigan v Richmond’)
Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Walley v Western Australia (2002) 169 FLR 437; [2002] NNNTA 24 (‘Walley v Western Australia’)
Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’)
Western Australia v Smith (2000) 163 FLR 32; [2000] NNTTA 239 (‘Western Australia v Smith’)
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72 (‘Goonack v Geotech International’)

Representative of the Mr Dante Mavec, Kimberley Land Council
native title party:

Representatives of the Mr Jesse Winton, State Solicitor’s Office
Government party: Mr Matthew Smith, Department of Mines and Petroleum

Representative of the Mr William Richmond
grantee party:

REASONS FOR DETERMINATION

On 4 April 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2028 (‘the proposed licence’) to William Robert Richmond (‘the grantee party’). The notice included a statement that the Government party considers that the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
According to the notice, the proposed licence area comprises 14 graticular blocks (approximately 39 square kilometres) situated 90 kilometres north of Derby in the Shire of Derby-West Kimberley. The area is subject to the Mayala registered native title claim (WC1998/039 – registered from 1 July 1998), which extends from the coastline outwards into Cone Bay and covers 18.36 per cent of the proposed licence area, and the Dambinmangari determination (WCD2011/002 – determined 26 May 2011), which covers the remaining land and waters within the boundaries of the proposed licence.
On 3 August 2012, Mr Tigan and others on behalf of the Mayala native title claimants (‘the native title party’) lodged an application objecting to the inclusion of the expedited procedure statement.
The Tribunal set directions for parties to provide submissions and supporting documentary evidence for an inquiry to determine whether the proposed licence attracts the expedited procedure. The directions allowed a four-month period after the closing date for lodgement of objections (that is, 6 August 2012) so that parties could explore the possibility of reaching an agreement that would result in the withdrawal of the objection. The Tribunal convened several conferences during this period, and it appears that, though the native title party and the grantee party discussed an agreement, they were unable to agree on its terms. Accordingly, the native title party asked that the matter be programmed for inquiry and requested an extension to the existing directions to account for the wet season, which the Tribunal granted.
In accordance with the amended directions, the Government party provided documentary evidence relating to the proposed licence on 1 May 2013. The native title party was due to provide its submissions and supporting documentary evidence on 10 June 2013. However, though the traditional owners had identified Mr Tigan as the person with the requisite knowledge and authority to give evidence in relation to the proposed licence area, by the time the native title party had located an appropriate interpreter, Mr Tigan had become involved in sorry business and was unable to provide an affidavit. The native title party therefore sought a further extension, which was subsequently granted.
On 3 July 2013, the native title party notified the Tribunal that the evidence it obtained from Mr Tigan concerned issues related to men’s law, and that Mr Tigan did not want his evidence to be viewed by women. The native title party therefore sought directions under s 155 of the Act to accommodate Mr Tigan’s concerns. In consideration of the native title party’s request, the late Member Dan O’Dea (who was then appointed to the matter) made directions under s 155 limiting the disclosure of Mr Tigan’s evidence to male representatives of each party and to male Tribunal Members and staff. The native title party provided Mr Tigan’s affidavit and a statement of contentions (‘NTP Contentions’) on 5 July 2013.
Subsequent to the filing of the native title party’s contentions and supporting documentary evidence, the Government party provided its statement of contentions in response (‘GVP Contentions’) on 19 July 2013, and the grantee party provided further material in support of the Government party’s assertion of the expedited procedure on 15 July 2013 and 8 August 2013. The native title party provided a statement of contentions in reply (‘NTP Reply’) on 5 August 2013.
A listing hearing was convened on 8 August 2013. During the listing hearing, the parties indicated that they were content for the inquiry to proceed ‘on the papers’ (that is, without a formal hearing). The Government party sought leave to provide further contentions in reply; however, it subsequently declined to do so. The grantee party also reiterated its position with respect to the proposed licence, which I discuss later in these reasons.
On 14 August 2013, the Tribunal wrote to the parties indicating that Member O’Dea was due to take leave and intended to amend the non-disclosure directions. The effect of the proposed amendment was to permit President Raelene Webb QC to view Mr Tigan’s affidavit so that she could be appointed to determine the matter in Member O’Dea’s absence. The native title party responded by reaffirming its position regarding the cultural sensitivity of the evidence provided by Mr Tigan. Member O’Dea accepted the native title party’s concerns and therefore declined to make the proposed amendment.
Following the sad and unexpected passing of Member O’Dea in August 2013 and in the absence of another Tribunal member of the appropriate gender, President Webb QC appointed herself as Member for the purpose of conducting the inquiry. On 16 September 2013, the native title party informed the Tribunal that Mr Tigan had sadly passed away but it intended to continue using Mr Tigan’s evidence in support of its objection. On the basis of that advice, President Webb QC amended the non-disclosure directions to enable her to view Mr Tigan’s affidavit. However, the native title party subsequently reiterated its objection to the evidence being disclosed to a female Member, and President Webb QC undertook not to view the affidavit until a solution could be identified. Following my appointment to the Tribunal on 31 March 2014, President Webb QC appointed me to constitute the Tribunal for the purposes of the objection on 2 April 2014.
I have considered the material provided by the parties and I am satisfied that it is appropriate to proceed ‘on the papers’ in accordance with s 151(2) of the Act.

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 determining whether a proposed future act attracts the expedited procedure, the Tribunal is required to make a predictive assessment of the effect the proposed future act is likely to have on the matters identified in s 237. Specifically, the Tribunal must assess the likelihood of the proposed future act giving rise to interference or disturbance of the kind referred to in that section. That assessment is not made on the balance of probabilities, but requires the Tribunal to consider whether there is a real risk or chance of interference or major disturbance arising from the future act (see Smith v Western Australia at [23]; Walley v Western Australia at [8]; Little v Western Australia at [68]-[72]). Though the Act does not impose an onus of proof on any party, the Tribunal is required to adopt a commonsense approach to the evidence (see Ward v Western Australia at 215-218).
In Walley v Western Australia, the Hon C J Sumner, then Deputy President, considered the nature of exploration and prospecting licences, including the activities permitted by such licences, the limits placed on those activities and the standard conditions imposed by the Government party (at [24]-[35]). I adopt Deputy President Sumner’s findings for the purpose of this inquiry, while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the standard conditions imposed on exploration licences have been strengthened (see Tullock v Western Australia at [10]-[12]).
In relation to s 237(a), the following observations can be made:
·The term ‘community and social activities’ is concerned with physical activities. The Tribunal may consider the non-physical or spiritual aspects of the native title party’s community or social activities, but only to the extent those aspects are rooted in physical activities (see Silver v Norther Territory at [50]-[62]; Tullock v Western Australia at [65]-[77]).
·The community and social activities must arise from registered native title rights and interests (see Tullock v Western Australia at [93]-[102]).
·The term ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence must be provided to identify the individuals as a community (see Silver v Northern Territory at [59]).
·The term ‘social activities’ can encompass activities carried on by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (see Silver v Northern Territory at [60]).
·The Tribunal must determine whether the proposed future act is likely to be the proximate cause of interference (see Smith v Western Australia at 451).
·The level of interference with community and social activities must be substantial rather than trivial (see Smith v Western Australia at 451).
·The inquiry under s 237(a) is contextual, and the Tribunal may have regard to other factors that might constrain the native title party’s community or social activities (see Smith v Western Australia at 451).
With respect to issues arising under s 237(b), I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources NL).
·The interference contemplated by s 237(b) must involve actual physical intervention. When evaluating the degree of interference, the Tribunal must consider the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders (see Silver v Northern Territory at [88]).
·The Tribunal may take into account activities that are likely to interfere with sites or areas outside the boundaries of the proposed future act or claim area, so long as there is a clear nexus between the activities and the issues being considered under s 237 (see Silver v Northern Territory at [35]).
On the interaction between s 237(b) and the site protection regime established under the Aboriginal Heritage Act 1972 (WA) (‘AHA’), I adopt the findings made by the Deputy President Sumner in Parker v Ammon at [31]–[38] and [40]-[41] and those of Member Helen Shurven in Karajarri Traditional Lands Association v ASJ Resources at [48]-[53], [84]-[87] and [91]. I also adopt the findings of Member O’Dea in Cherel v Faustus Nominees at [81]-[91].
With respect to s 237(c), I make the following observations:
·Section 237(c) requires a consideration of the effect of the future act and any rights created by the future act (see Little v Oriole Resources at [41]).
·The assessment of whether the future act is likely to involve, or create rights whose exercise are likely to involve, major disturbance to the land and waters must be evaluated by reference to what is likely to be done, rather than what could be done (see Little v Oriole Resources at [51]).
·The term ‘major disturbance’ is to be given its ordinary meaning as understood by the whole Australia community, including Aboriginal people. The concerns of the Aboriginal community, including matters such as community life, customs, traditions and cultural concerns are relevant matters for consideration in evaluating the disturbance (see Little v Oriole Resources at [52]-[54]; Dann v Western Australia at 395, 401 and 413).
·The Tribunal is entitled to have regard to the context of the proposed grant, including the history of mining and exploration in the area, the characteristics of the land and waters concerned and any relevant regulatory regime (see Little v Oriole Resources at [39]).

Evidence in relation to the proposed acts

The Government party provides the following documents in relation to the proposed licence:
·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).
·A copy of the tenement application and a Draft Tenement Endorsements and Conditions Extract.
·An instrument of licence and first schedule listing land included and excluded from the grant.
·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, relevant services and other features within the proposed licence.
The Tengraph quick appraisal establishes that the underlying tenure is as follows:
·Private land (Lot 15 on Deposited Plan 242219) at less than 0.1 per cent.
·Crown Reserve 30674 (Use & Benefit of Aborigines) at 46.3 per cent.
·Various parcels of vacant Crown land, to a total of appropriately 3.68 per cent.
The balance of the proposed licence area is below the mean high water mark.
In relation to previous mineral tenure, the quick appraisal indicates that temporary reserves covered the entire area of the proposed licence from 1920 to 1921 and from 1929 to 1936. I note that the area has also been subject to a previous tenement application, E04/1733, which was marked out by the grantee party and Drill Gold Pty Ltd in 2007 but refused prior to grant. That tenement was also the subject of a determination by the Tribunal, which I set out below at [45]-[48]. There is no evidence before me as to why the tenement was refused.
The report from the DAA Database lists one registered site in the proposed licence area, namely Cone Bay (Site ID 14884 – open access – no gender restrictions – artefacts/scatter, camp). The Cone Bay Aboriginal Community is also located within the proposed licence area.
The Draft Tenement Endorsement and Conditions Extract indicates that the grant will be subject to the standard four conditions noted in Tullock v Western Australia, as well as a further condition requiring the prior written consent of the Minister responsible for the Mining Act being obtained before commencing any exploration activities on Crown Reserve 30674 and the foreshore, seabed and navigable waters.

The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

Evidence of the native title party

The native title party contends that the act is an act likely to interfere with areas or sites of particular significance to the persons who are the holders of the native title in relation to the land or waters concerned. Consequently, the native title party’s submissions are directed toward s 237(b) of the Act and, though mentioned in the native title party’s initial application, the objection is not pursued in relation to the other criteria in s 237.
In support of its submissions, the native title party relies on the affidavit of Mr Tigan affirmed on 2 July 2013. As noted above, the affidavit is subject to non-disclosure directions and so will not be reproduced in these reasons. As contemplated by those directions, I have only referred to the contents of Mr Tigan’s affidavit to the extent necessary to explain the factual basis for my decision as required by s 162(2) of the Act. For present purposes, it will suffice to note that Mr Tigan’s evidence primarily concerns a group of five islands situated within the Mayala portion of the proposed licence area.

Evidence of the grantee party

The grantee party’s evidence consists of:
·a letter from Mr Richmond to the Tribunal dated 15 July 2013, outlining the proposed activities and enclosing various maps relating to the proposed licence and planned mining proposal; and
·an email from Mr Richmond to Rob Houston of the Kimberley Land Council dated 20 May 2009 relating to E04/1733, explaining the nature of the proposal and attaching a map showing the area of a proposed mining lease application.
In his letter to the Tribunal, Mr Richmond asserts that ‘there is no prospect of exploring on the Mayala claim area.’ Mr Richmond states that the proposed mining area is situated on land within the Dambinmangari determination. The maps enclosed with the letter indicate that the proposed mining project involves the construction of a quarry on Dambinmangari lands, though it is unclear whether the area encroaches on any part of the Mayala claim. The proposal appears to be similar in many respects to the one presented to Mr Houston in 2009
Mr Richmond states that the beaches ‘adjacent to the islands Mr Tigan refers to’ will be preserved to minimise disturbance to nesting turtles and other animals. Mr Richmond also indicates his intention to consult with the Department of Mines and Petroleum to excise the overlap with the Mayala claim from the proposed licence area, though he conceded at the listing hearing that he will require sea access to the exploration area.
In his email to Mr Houston, Mr Richmond provides further detail about the nature of the proposal. Mr Richmond explains that the target resource is granite, and alludes to the possibility of establishing an ‘Eco type tourist base’ as mining progresses, though such activities would not be authorised under the proposed licence. Mr Richmond states that the grantee party has ‘no commercial interest’ in exploring outside the area of the proposed mining project.
On 12 May 2014, the Tribunal sought comment from the native title party and the Government party on the documents provided by Mr Richmond. A response was received from the native title party by email on 22 May 2014. A further response was also received from Mr Richmond on 26 May 2014, but it is mostly repetitive of the material that was already before the Tribunal.
The native title party raises several issues in relation to the materials provided by Mr Richmond.
First, the native title party notes that Mr Richmond has said there is ‘no prospect’ of exploration in the Mayala claim area and he will consult the Government party to remove the encroachment on the Mayala claim. Following further enquiries, the native title party has provided an email from the Government party dated 13 May 2014 confirming no application was made to excise the overlap between the proposed licence and the Mayala claim area. The native title party also includes an email from Mr Richmond on 12 May 2014, which states that he ‘will need sea access and high water mark for ship docking facilities at the site which is Dambi lands. The sea access & high water margin may impede on the Mayala claim so it wouldn’t be wise to excise them.’ This is consistent with the comments made by Mr Richmond at the listing hearing.
I note in this regard the possible effect of ss 57(2a) and 57(3) of the Mining Act, which may have foreclosed the option of excising any overlap between the proposed licence and the Mayala claim. Those sections read as follows:
57 Grant of exploration licence
…
(2a) Where an exploration licence is granted in respect of 2 or more blocks the graticular sections that constitute those blocks shall –
(a)constitute a single area; and
(b)each have a side in common with at least one other graticular section in that area.
…
(3) The Mining registrar or warden shall not recommend the grant of an exploration licence under this section unless he is satisfied that the applicant is able to effectively explore the land in respect of which the application has been made.
Given the proximity of the overlap to the coastline, it may have not have been possible to excise the area without also excising areas along the coast. Considering the nature of the terrain on the landward side of the proposed licence area, this may well have restricted the grantee party’s access to prospective areas within the Dambinmangari lands.
Second, the native title party maintains that the grantee party’s intentions can best be characterised as a sincere aspiration to develop the area of the proposed licence. The native title party argues that, given the complexity of the proposal and the lack of evidence of detailed planning, any number of financial, technical or practical matters may intervene and affect the exercise of the grantee party’s rights during the life of the proposed licence. The native title party contends that Mr Richmond has provided only the barest outline of the use he intends to make of the proposed licence at the exploration stage, and the material is not sufficiently detailed to discount the possibility that the full suite of rights under the proposed licence will be exercised.
The native title party relies on the Tribunal’s decision in Roe v Kimberley Quarry, where it was determined that statements provided by the grantee party were not sufficiently detailed to displace the inference that the rights would be exercised in full. There, the Tribunal noted that the grantee party did not provide a work programme but had simply stated that only minor drilling was proposed and disturbance would be minimal, although there would be further disturbance if the resource proved to be viable. However, it is important to note the Tribunal’s conclusion in Roe v Kimberley Quarry was made in the context of the finding that the area was such that interference was likely should the grantee party so much as enter the tenement, whereas the evidence in the present matter concerns access to a site within the proposed licence.
Clearly, the proposed licence will not authorise the grantee party to develop the proposed quarry, tourism facility and associated infrastructure. This would require the grant of additional tenure and significant investment. In this sense, it is quite apt to describe the grantee party’s intentions as aspirational, even ambitious. Nonetheless, the grantee party’s aspirations are relevant to the assessment of what the grantee party intends to do if the proposed licence is granted.
I acknowledge that Mr Richmond has not provided much detail as to how he will give effect to those aspirations. However, I do not agree that the material must be set aside. The weight given to evidence about the grantee party’s intentions will depend on the circumstances of the particular case. There is no threshold that must be met before the Tribunal is entitled to take the material into account. The only requirement is that the evidence is logically probative and relevant to the predictive assessment required under s 237. As Deputy President Sosso observed in Silver v Northern Territory, the weight that will be given this material depends on a range of issues that will vary with each inquiry, but as the material is logically relevant to the question of likelihood, it cannot be simply discarded. Hence, evidence of intention may be particularly relevant in some contexts and only marginally so in others. There may be circumstances where the evidence will be of pivotal importance in the predictive assessment (see for example the comments of Member O’Dea in Lungunan v Geotech International at [43]).
Third, the native title party contends there is evidence that some disturbance is in fact proposed. Specifically, the native title party notes the statement made by Mr Richmond in his email of 12 May 2014 that ‘sea access & high water margin may impede on the Mayala claim’ and the comment in his letter of 15 July 2013 that ‘[t]he beaches adjacent to the islands Mr Tigan refers to will be preserved to minimise disturbance to nesting turtles & other creatures.’ The native title party submits that the reference to minimising disturbance indicates there will be some level of access and disturbance to these areas.
In relation to the statement that sea access will ‘impede’ on the Mayala claim, it is clear from the context that the statement is a reference to the fact the proposed licence will still affect the Mayala claim, meaning the overlap cannot be excised. I do not take this to be an admission that the grantee party’s activities will interfere with or disturb areas or sites within the Mayala claim.
With respect to the comment about the beaches ‘adjacent’ to the islands, the native title party has interpreted this to mean the beaches on the islands, rather than those on the coast. This would require the phrase ‘adjacent to the islands’ to be interpreted as ‘on the islands.’ The Oxford English Dictionary defines adjacent as ‘next to or very near something else; neighbouring; bordering, contiguous; adjoining,’ whereas the word is defined in the Macquarie Dictionary as ‘lying near, close or contiguous; adjoining, neighbouring.’ On the basis of these sources, both interpretations are feasibly open, though I am conscious that usage does not always coincide with dictionary definitions.
Nevertheless, there are several difficulties with the interpretation suggested by the native title party. First, when one speaks of something as being ‘adjacent’ to another thing, it is usually to link two separate concepts. It is somewhat strange to refer to the beaches as being adjacent to the islands when they are a constituent part of the islands themselves. Second, the interpretation proposed by the native title party is not consistent with other statements made by Mr Richmond to the effect that he does not intend to explore on the Mayala claim area. Third, Mr Tigan states that the turtles do not nest in the overlap area but in a different area nearby, so it seems unlikely Mr Richmond was referring to the beaches on the islands. On balance, I consider the reference to the beaches is intended to mean the beaches on the coastline rather than those on the islands.

Previous Objections

As noted above at [22], the grantee party and Drill Gold Pty Ltd marked out E04/1733 over a similar area in August 2007. Notice was given by the Government party asserting the expedited procedure on 19 November 2008. The native title party objected to the application of the expedited procedure on 19 March 2009 and the Tribunal determined that the exploration licence was an act attracting the expedited procedure on 11 December 2009 (see Tigan v Richmond). The exploration licence covered roughly the same area as the proposed licence, but appears to have been slightly larger is size (46.28 square kilometres as opposed to 39.2 square kilometres).
In that matter, the native title party relied on the affidavit evidence of Donny Woolagoodja. Mr Woolagoodja gave evidence to the effect that he and members of his family group hunt for fish, turtles and other animals in the Cone Bay area. Mr Woolagoodja also gave evidence about the existence of sacred and important places in the Cone Bay, including artefact and camp sites, rock paintings and cave paintings, though he did not refer to any specific areas or sites. Mr Woolagoodia did not refer to the islands mentioned in Mr Tigan’s evidence, and Mr Tigan did not provide any evidence in that inquiry.
In relation to s 237(a), Member Neville MacPherson concluded in his 11 November 2009 determination that the evidence did not provide a basis for suggesting that significant community or social activities were being carried on by the native title party in the tenement area. On the issue of sites, Member McPherson was satisfied that it was likely there were sites of significance to the native title party, but did not consider that the evidence supported the finding that there were areas or sites of particular significance within the tenement area. Member McPherson was also satisfied that the tenement was not likely to involve disturbance for the purposes of s 237(c).
Though the Tribunal determined that E04/1733 was an act attracting the expedited procedure, the same conclusion does not necessarily follow in the present matter. Member Shurven has dealt with the principles of res judicata and issue estoppel and their application to decisions of the Tribunal in Karajarri Traditional Lands Association v ASJ Resources at [21]-[33], and I adopt the observations made in that regard. Here, new evidence has been provided. While it is not clear why Mr Tigan did not give evidence in the previous inquiry, that fact has not affected the weight of the evidence in the present inquiry.

Interference with community or social activities – s 237(a)

The native title party did not make any contentions in relation to s 237(a). However, Mr Tigan’s affidavit does state that the overlap between the proposed licence and the Mayala claim area is a ‘special spot’ for fishing leatherback and hawksbill turtles. Mr Tigan states that the turtles ‘lay their eggs in a different area nearby, but they go to the area to feed’ (Tigan Affidavit, paragraph 5). Mr Tigan states that ‘[w]e don’t want anyone messing around and ruining that spot for us. It has been a special spot for turtles for as long as anyone remembers and we have to keep in that way’ (Tigan Affidavit, paragraph 6). Although Mr Tigan does not indicate how often members of the claim group visit the area to fish for turtle, I accept that the activity does occur from time to time, as the overlap area is described as a ‘special spot’ for the activity.
As the grantee party only intends to use the overlap area as a sea passage to the mainland, I consider it unlikely that the grantee party will directly interfere with fishing activities or feeding turtles. Though Mr Tigan does not specify whether the turtles tend to nest in places within the proposed licence area or elsewhere along the coast, I nonetheless accept that Mr Richmond intends to preserve the beaches to minimise disturbance to the turtles and other animals.
Though the evidence establishes that the Cone Bay Aboriginal Community is located within the proposed licence area, there is no evidence as to whether any specific community or social activities are carried on by the members of the community.
In light of the material before me, there is no basis to conclude that the grant of the proposed licence is likely to interfere with the carrying on of any community or social activities by persons that hold native title in the relevant area.

Interference with sites or areas of particular significance - s 237(b)

In relation to the existence of sites or areas of particular significance within the proposed licence, the native title party contends that:
·there are five small islands located above the high water mark within the overlap between the proposed licence and the Mayala claim area – NTP Contentions, paragraph 22;
·the islands comprise a single site or area of particular significance to the native title party – NTP Contentions, paragraph 24;
·the islands are named and understood as a single entity – NTP Contentions, paragraph 24(a);
·the islands have a role in a fundamental component of men’s law – NTP Contentions, paragraph 24(b);
·the native title party believes that entry onto the islands must be properly announced, even by law men qualified to be present, at the risk of immediate spiritual retribution – NTP Contentions, paragraph 24(c);
·the native title party believes that the presence of women or unaccompanied strangers on the islands would result in serious spiritual retribution – NTP Contentions, paragraph 24(d);
·there is an extremely low threshold for disturbance of the islands, in contrast with other areas of Mr Tigan’s country. Disturbance is believed to lead to spiritual harm for those responsible for the islands, as well as for the person causing the disturbance – NTP Contentions, paragraph 24(e); and
·the islands are likely to be interfered with by the mere presence of the grantee party, or alternatively by any activities with any impact whatsoever, including soil sampling – NTP Contentions, paragraph 25.
Mr Tigan states that the islands are ‘very sacred places’ and part of men’s law. Mr Tigan says that ‘women must not know anything about why they are significant’ and ‘none of what [he says] about them can ever be told to women.’ Women and children ‘can sit on the boat near the islands and fish but they cannot climb up on them’ (Tigan Affidavit, paragraph 7). If women were to go on the islands, something bad would happen. According to Mr Tigan, the only safe way to go on the islands is to be taken there by a law man for the relevant country (Tigan Affidavit, paragraph 10). Mr Tigan says the islands cannot be disturbed, and taking even a single rock would have spiritual consequences (Tigan Affidavit, paragraph 12).
The Government party accepts that it is open for the Tribunal, on the basis of Mr Tigan’s affidavit, to find that the islands are a place of particular significance to the native title party (GVP Contentions, paragraph 59). However, the Government party does not accept the contention that mere presence in an area would directly interfere with that area (GVP Contentions, paragraph 60). Furthermore, the Government party states that it does not accept what is described as the implicit contention in the native title party’s submissions that failing to consult with the native title holders before entering the land or commencing an activity amounts to interference for the purposes of s 237(b) (GVP Contentions, paragraph 61). The Government party also submits that the native title party’s concerns regarding spiritual retribution for unauthorised presence on the islands are not relevant to whether there is likely to be interference with a site of particular significance (GVP Contentions, paragraph 62). The Government party contends that, if the general assertion that a person’s unauthorised or unsanctioned presence will result in spiritual retribution were sufficient to oust the expedited procedure, then it would not be applied to the grant of almost all exploration tenure in Australia, which would be incongruent with the Parliament’s intention (GVP Contentions, paragraph 64).

In reply, the native title party states that it has not made any general contention that mere presence in an area will directly interfere with the area (NTP Reply, paragraph 11). Rather, the native title party says its contention is that the islands comprise a site or area of particular significance and has a very low threshold of disturbance (NTP Reply, paragraph 12). Furthermore, the native title party argues that beliefs in spiritual retribution for unauthorised presence are relevant to the consideration of whether an area is of special or more than ordinary significance. It also contends that those beliefs are relevant to the Tribunal’s consideration of what constitutes interference, particularly where the area is treated differently to other areas in the native title party’s country (NTP Reply, paragraphs 13-14). The native title party argues that the grantee party’s presence on the islands will essentially involve a physical impact on the area (NTP Reply, paragraph 17). In the native title party’s submission, this level of impact amounts to serious interference when assessed by reference to the nature of the site and the native title party’s traditional laws and customs (NTP Reply, paragraph 18).
On the basis of Mr Tigan’s evidence, I find that the islands constitute a site of particular significance to the native title party. I also find that activities involving the removal of rocks, drilling and digging on the surface of the islands would constitute interference with the site. This is likely to extend to activities such as rock chipping and soil sampling. I am also satisfied that entry onto the islands without the presence of a law man from the country is likely to cause interference regardless of the specific physical impact.
I do not agree with the Government party’s contention that this finding is inconsistent with the parliamentary intention behind s 237. The Tribunal has rejected the notion that general statements about spiritual or emotional distress arising from the presence of strangers on country are sufficient to displace the expedited procedure, particularly in relation to s 237(c) (see Rosas v Northern Territory at [84]; Goonack v Geotech International at [44]). However, beliefs about spiritual retribution may be relevant where they relate to interference with a specific area or site. Whereas s 237(c) is concerned with the effect of the act on land or waters generally, s 237(b) speaks about interference with areas or sites of particular significance. As Deputy President Sosso observed in Silver v Northern Territory, ‘much will depend on the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders’ (at [88]). Although Deputy President Sosso acknowledged that the interference must be physical, the Tribunal has previously accepted that access or entry to a site can satisfy this requirement (see Crowe v Western Australia at [99]; Roe v Kimberley Quarry at [30]; Tullock v Allarrow at [40]; Campbell v Murchison Metals at [48]). That requirement would not be satisfied if the grantee party only intended to work in proximity to the site without going onto it, despite any upset or distress this might cause to the native title holders (see Silver v Northern Territory at [88]).
In this case, it is clear from Mr Tigan’s affidavit that his concerns only relate to entry onto the islands. There is no suggestion that proximity to the islands would constitute interference within the meaning of s 237(b). Whether access amounts to interference will of course depend on the evidence presented in a particular case, but in the present matter I accept the evidence establishes that unaccompanied entry will constitute interference with the site.
The question then becomes whether there is a real chance or risk the grant will result in interference of the kind contemplated by s 237(b). To answer that question, it is legitimate to have regard to what the grantee party proposes to do once the proposed licence is granted (see Western Australia v Smith at [34]-[35]; Silver v Northern Territory at [25]-[32]). According to Mr Richmond’s evidence, the grantee party has no interest in exploring on or in the vicinity of the islands.
I accept that Mr Richmond intends to use the proposed licence to explore for granite deposits on the mainland, principally within Dambinmangari lands. I note that no objection was made on behalf of Dambinmangari and no evidence has been adduced regarding sites that are significant to the native title holders for that area. Though Mr Richmond has not provided details of how the exploration will be undertaken, in light of the geography of the area and the size and orientation of the islands, I accept he has no interest in the islands, whether as targets for exploration or otherwise. Although the area within the Mayala claim is required to access the coast and to enable future development along the coastline, it is unlikely the grantee party would have any cause to approach or land on the islands. As Mr Tigan’s evidence suggests, mere proximity to the islands is not enough to constitute interference within the meaning of s 237(b). In the circumstances, I am satisfied that the grantee party’s activities are not likely to interfere with the islands.
Section 237(b) requires the Tribunal to make a predictive assessment of what is likely to occur, rather than what can occur, if the future act is done. That assessment is made on the basis of the material before the Tribunal in a given case. In the absence of evidence to the contrary, the Tribunal is entitled to assume that the grantee party will exercise the full extent of the rights conferred by the proposed licence (see Silver v Northern Territory at [25]-[32]; Monadee v Western Australia at [17]). Similarly, unless the evidence suggests otherwise, the Tribunal will presume that the grantee party will act lawfully in exercising those rights, though this presumption will not always lead to the conclusion that the expedited procedure applies (see Murray v Money at [53]-[58]). The evidence does not establish that Mr Richmond will not comply with his obligations under the AHA. However, where there is evidence of the grantee party’s intentions, the Tribunal is entitled to consider and give appropriate weight to that evidence.
Though I have been impressed by the forceful and compelling nature of Mr Tigan’s evidence, I must also have regard to the evidence of Mr Richmond. The statements made by Mr Richmond, both in correspondence with the Tribunal and during the listing hearing, are consistent with his email to Mr Houston in 2009, and I am satisfied they are not merely a convenient position taken in response to the inquiry and the evidence presented by the native title party. While the statements made by Mr Richmond are not sworn evidence, the Tribunal is not bound by the rules of evidence, though it does have a duty to accord procedural fairness (see Hughes v Western Australia at [15]-[16]). The Tribunal informed parties that it considered the materials to be relevant to its consideration of the matter and parties were given an opportunity to comment on them. I have taken those comments into account. Though the native title party made submissions on the appropriate use of Mr Richmond’s evidence, it did not contend that the material should not be relied upon whatsoever. This is not the case of a representative seeking to give evidence through contentions. In fact, Mr Richmond was not represented in these proceedings, and I have taken account of that. On balance, I am satisfied that Mr Richmond’s statements are an accurate reflection of his intentions.
Though Mr Richmond’s ultimate plans for the area could be described as ambitious, there is no reason to suppose he will act contrary to the statements he has made insofar as they concern the islands and exploration in Mayala claim area. If Mr Richmond does not abide by these statements, it is likely to support an adverse inference against him in future inquiries. Furthermore, if Mr Richmond were to disturb the islands and was charged with a breach of s 17 of the AHA, he would have no basis for asserting that he did not know or could not reasonably be expected to have known about the site and would not have recourse to the defence under s 62 of the AHA (see Cherel v Faustus Nominees at [84], citing Neowarra v Swan Cove Enterprises at [27]).
The Government party’s Aboriginal Heritage Due Diligence Guidelines published on 30 April 2013 state, under the heading ‘Site Avoidance Strategies’, that where an Aboriginal site ‘is on or close to an area where a land user proposes an activity which may damage, destroy or alter an Aboriginal site the land user should investigate strategies for avoiding the site or limiting disturbance to the site’ (paragraph 2.28). The guidelines also state that the land user should consult with the relevant Aboriginal people to seek advice about managing the activity in a way that will avoid damage to the site and, where necessary, conduct a heritage survey. The parties did not make reference to the guidelines in their submissions, and the grantee party’s attitude to the guidelines is unknown. The guidelines might carry more weight were they included in the endorsements on the proposed licence, as this would ensure that the grantee party’s attention is drawn to its responsibilities and reasonable steps that could be taken to discharge them.
I am aware through the DAA Database search provided by the Government party of the existence of the Cone Bay site, noted above at [23]. Though the site is registered under the AHA, there is no evidence before me regarding its significance to the native title holders for that area. Registration is not conclusive evidence of a site’s particular significance (see Western Australia v Thomas at 170), and the Tribunal has emphasised in previous decisions that the nature of a site’s significance must be explained (see Western Australia v McHenry; Silver v Northern Territory at [91]). In any event, I accept that the grantee party is on notice about the site and I am satisfied that the regulatory regime is sufficient to ensure there is no real risk of interference with the site.
In conclusion, I find that the proposed licence is not likely to interfere with sites or areas of particular significance in accordance with the traditions of the native title holders.

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

The native title party did not make any contentions or adduce any evidence in relation to s 237(c). Mr Tigan’s affidavit does not specifically address the question of major disturbance, though he does mention the cultural and spiritual consequences of disturbing the islands. The Tribunal has generally found that the grant of an exploration licence under the Mining Act will not involve major disturbance unless there is evidence of special topographical, geological or environmental factors that would lead members of the community to consider that the proposed activities would result in major disturbance to the land or waters (see Champion v Western Australia at [75]-[77] and the cases cited). The only specific consideration with respect to environmental matters is the evidence of Mr Tigan regarding turtles that nest and feed in the area. I have already concluded that the proposed licence is unlikely to affect the continued presence of these turtles.
The grantee party has not indicated how he intends to explore for granite in the proposed licence area and, if he eventually proceeds with his mining proposal, the impact on the land and waters is likely to be significantly more intensive. However, as noted above at [31] and [39], the proposed licence does not authorise the grantee party to carry out that proposal. There is nothing to suggest that the exercise of the grantee party’s rights under the proposed licence will result in disturbance of the kind that would be considered major from the point of view of the general community.
Although the Cone Bay Aboriginal Community is located within the proposed licence area, there is no evidence that members of the community have concerns about the grant of the proposed licence. As I observed above at [61], no one sought to object on behalf of the Dambinmangari native title holders. Though I acknowledge that cultural concerns attach to the islands, they are not likely to be disturbed by the grantee party’s exploration programme. For these reasons, I find that the proposed licence is not likely to involve disturbance of the kind contemplated by s 237(c).

Determination

The determination of the Tribunal is that the grant of exploration licence E04/2028 to William Robert Richmond is an act attracting the expedited procedure.

James McNamara
Member

10 June 2014