Walalakoo Aboriginal Corporation RNTBC v Kallenia Mines Pty Ltd
[2019] NNTTA 91
•4 November 2019
NATIONAL NATIVE TITLE TRIBUNAL
Walalakoo Aboriginal Corporation RNTBC v Kallenia Mines Pty Ltd & Anor [2019] NNTTA 91 (4 November 2019)
Application No:
WF2019/0001
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a future act determination application
Walalakoo Aboriginal Corporation RNTBC (WCD2014/003)
(native title party)
- and -
Kallenia Mines Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE SUBJECT TO CONDITIONS
Tribunal:
Nerida Cooley, Member
Place:
Brisbane
Date:
4 November 2019
Catchwords:
Native title – future act – s 35 application for a determination – s 39 criteria considered – application for determination for the grant of an exploration permit – effect of act on native title rights and interests – effect of act on way of life, culture and traditions – effect of act on social, cultural and economic structures – effect of act on freedom of access – effect of act on sites or areas of particular significance – interests, proposals, opinions or wishes of the native title party – economic or other significance of act – public interest in doing of act – determination that the act may be done subject to conditions – leave to cross examine not granted
Legislation:
Native Title Act 1993 (Cth), ss 29, 31, 35, 36, 38, 39, 41 109, 151, 156, 237, 238
Mining Act 1978 (WA), ss 57, 58, 61, 63, 63AA, 66
Aboriginal Heritage Act 1972 (WA)
Cases:
Albert Little & Others on behalf of Badimia/Western Australia/Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (‘Little v Lake Moore Gypsum’)
Charles, on behalf of Mount Jowlaenga Polygon #2 v Sheffield Resources Limited [2017] FCAFC 218 (‘Sheffield’)
Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193 (‘Evans v Western Australia’)
Minister for Lands, State of Western Australia and Another
v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (‘Minister for Lands v Buurabalayji Thalanyji Aboriginal Corporation’)
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 (‘Koara 2’)
Muccan Minerals Pty Ltd and Another v Allen and Others on behalf of Njamal[2018] NNTTA 24 (‘Muccan 3’)
Page v Teelow (2002) [2002] NNTTA 17; 169 FLR 62 (‘Page v Teelow’)
Walalakoo Aboriginal Corporation RNTBC v Kallenia Mines Pty Ltd and Another [2017] NNTTA 53 (‘Walalakoo v Kallenia’)
Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6)[2014] FCA 545
Western Desert Lands Aboriginal Corporation v Western Australia and Another[2009] NNTTA 49; (2009) 232 FLR 169 (‘Holocene’)
Western Australia/David Daniel & Ors on behalf of the Ngarluma and Yindjibarndi People; Valeria Holborow & Ors on behalf of the Yaburara and Mardudhunera People; Wilfred Hicks & Ors on behalf of the Wong-goo-tt-oo People,[2002] NNTTA 230; (2002) 172 FLR 168 (‘Western Australia v Daniel’)
Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (Wa) Ltd [1996] NNTTA 30; (1996) 133 FLR 124 (‘Western Australia v Thomas’)
Representative of the native title party:
Mr Joe Heffernan, Kimberley Land Council
Representative of the grantee party:
Mr Tim Kavenagh, Kavenagh Legal
Representatives of the Government party:
Mr Domhnall McCloskey, State Solicitor’s Office
Mr Dennis Jacobs, Department of Mines, Industry Regulation and Safety
REASONS FOR DETERMINATION
Introduction
[1] This is a decision about whether the State of Western Australia (State) may grant exploration licence E04/2428 (licence) to Kallenia Mines Pty Ltd (Kallenia) and, if so, whether the grant is to be done subject to any conditions.
[2] The proposed licence is located in the Kimberley region of Western Australia and Walalakoo Aboriginal Corporation RNTBC (Walalakoo) is the registered native title body corporate in relation to the whole of the licence area. Walalakoo holds native title on trust for the Nyikina Mangala people in accordance with the Federal Court’s determination in Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) made on 29 May 2014 (Nyikina Mangala determination).
[3] The State gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant the licence, with a notification day of 4 March 2016. In the notice, the State included a statement that it considered the licence was an act attracting the expedited procedure under s 237 of the NTA.
[4] Walalakoo objected to the expedited procedure statement and the Tribunal subsequently decided in Walalakoo v Kallenia, that the licence was not an act attracting the expedited procedure. All negotiation parties, being the State, Kallenia and Walalakoo, were then required to negotiate about the grant of the licence in accordance with s 31 of the NTA.
[5] The parties were unable to reach agreement and, on 26 March 2019 (being at least 6 months after the notification day), Kallenia lodged a future act determination application under s 35 of the NTA, for a determination under s 38 of the NTA.
[6] The President of the Tribunal has directed me to constitute the Tribunal for the purposes of conducting an inquiry into the future act determination application.
[7] For the reasons outlined below, my determination is that the grant of the licence may be done subject to conditions to be complied with by the parties.
Issues and approach
[8] I must not make a determination on the application in this matter if any negotiation party satisfies me that the State or Kallenia did not negotiate in good faith as mentioned in s 31(1)(b) (s 36(2) NTA). In this case, Walalakoo initially contended that both the State and Kallenia did not negotiate in good faith, but that contention was withdrawn, and so the question of good faith is not in issue.
[9] Accordingly, under s 38 of the NTA, I am required to make one of the following determinations:
(a) that the grant of the licence must not be done;
(b) that the grant of the licence may be done;
(c) that the grant of the licence may be done, subject to conditions to be complied with by any of the parties.
[10] The matters that I must take into account in making a determination are those set out in s 39(1) of the Act. The NTA does not specify the weight to be afforded to each matter listed in s 39 – that will depend on the evidence (see Western Australia v Thomas at 166.)
[11] Before making a determination I am also required to ascertain whether there are any issues on which the parties agree. If there are, then, subject to the parties’ consent, I am required to take that agreement into account. To the extent the agreement relates to any of the matters set out in s 39(1), I am no longer required to take those matters into account.
[12] In accordance with the Tribunal’s directions for the conduct of the inquiry in this matter, the parties were required to provide an agreed statement of issues and facts, identifying any material facts not agreed. In this case, the parties were unable to agree on a statement of facts and issues and accordingly, in making my determination, I have considered each of the s 39(1) criteria, as discussed below.
Determination on the papers
[13] Under s 151(2) of the NTA, I may make a determination “on the papers”, that is, without holding a hearing. However, I must hold a hearing if it appears to me that the issues for determination cannot be adequately determined in the absence of the parties.
[14] In this case, all parties are legally represented and all have filed comprehensive contentions and evidence in accordance with the Tribunal’s directions. The State and Kallenia also provided contentions in reply.
[15] Kallenia submits that I should determine that the grant of the licence may be done, but it has also indicated its willingness to accept a determination that the licence may be granted subject to conditions. Kallenia’s evidence comprises two affidavits of Mr William Richmond, the sole director and secretary of Kallenia.
[16] The State submits that I should determine the grant of the licence may be done. It has provided evidence comprising:
(a) Topographical Map - E04/2428;
(b) Tengraph Map - E04/2428;
(c) Quick Appraisal - E04/2428 ;
(d) AHIS Search - Registered Sites - E04/2428;
(e) AHIS Search - Other Heritage Places - E04/2428;
(f) Draft Endorsement & Conditions - E04/2428;
(g) Native Title Vision Determination Details -WCD 2014/003 ( and
(h) Native Title Vision Determination Details -WCD 2015/004 ( is opposed to the grant of the licence and argues that I should determine that the grant must not be done. Walalakoo’s evidence includes the following material provided on 26 July 2019:
(a) Future Act Determination Application by Kallenia Mines Pty Ltd, 26 March 2019 (NTP Doc 1);
(b) Affidavit – Annie Milgin, 29 April 2017 (Milgin affidavit) (NTP Doc 2) – I note this affidavit was originally provided in the expedited procedure objection application considered in Walalakoo v Kallenia;
(c) Affidavit – Brendan Charles, 26 June 2019 (Charles affidavit) (NTP Doc 3);
(d) Affidavit – Linda Nadia, 26 June 2019 (Nadia affidavit) (NTP Doc 4);
(e) Affidavit – Kimberley Watson, 26 June 2019 (Watson affidavit) (NTP Doc 5);
(f) Audio Statement – Recording provided by Annie Milgin of her father, Darby Narngarin, singing traditional ‘joonba’ or songline for Geegully Creek (NTP Doc 6);
(g) Book Extract - Woonyoomboo: A story from Nyikina country (Nyikina Mangala People with Shared Stories Foundation, 2018 (NTP Doc 7);
(h) Statement – Annie Milgin and Canny Watson, providing further detail on audio recording and other relevant information, 4 July 2019 (Milgin/Watson statement) (NTP Doc 8);
(i) Report - Walsh, Fiona J. (2019) Ethnoecological uses and values of the Kalayanmayi Pool (Clanmyra Pool) and Jirrkarli River (Geegully Creek) area by Nyikina – Mangala people of the south-west Kimberley region, Australia, Interim Ethnoecological report on independent expert findings, evidence and opinions, by Dr Fiona Walsh, July 2019 (NTP Doc 9);
(j) Nyikina Mangala determination (NTP Doc 10) –Walalakoo inadvertently provided the registration test decision instead of the determination, but confirmed at the listing hearing that this document should be the determination;
(k) Scientific journal article – Best, E. et al. (2013) Facultative geophagy at natural licks in an Australian marsupial. 94(6) Journal of Mammalogy: 1237-01247 (NTP Doc 11);
(l) Bureau of Meteorology, Map of extent of water bodies (NTP Doc 12);
(m) Walalakoo Aboriginal Corporation RNTBC (2016): Walalakoo Healthy Country Plan 2017–2027 (NTP Doc 13);
(n) Web article – Yiriman Story: A description of the Yiriman Project (NTP Doc 14);
(o) Web article – About Us: Kimberley Dreamtime Adventure Tours (NTP Doc 15);
(p) Report – Capelle, Mike (1981) A catalogue of ethnographic and archaeological sites found during exploration in permits 97,101, 102, and 103. [P.6. Reference to importance of Clanmyra [sic] Pool] (NTP Doc 16);
(q) Inclusion of a Place in the National Heritage List for the West Kimberley. Commonwealth of Australia, Gazette Special, No S132, 31 August 2011 (NTP Doc 17);
(r) Email from Kimberley Sustainable Development Trust Manager – Kallenia invoices (NTP Doc 18); and
(s) West Kimberley Place Report, National Heritage Listing Information (NTP Doc 19).
[18] The Interim Ethnoecological report by Dr Fiona J Walsh that is NTP Doc 9 was later replaced with the final report dated August 2019 (Report), which I have considered in my review of the evidence. The Report is discussed further at paragraph [67] below.
[19] From the affidavits, I note the following in relation to the authority of Walalakoo’s witnesses:
(a) Ms Milgin says she is a Nyikina Mangala traditional owner through her father's side. She is also a member and cultural advisor of Walalakoo and was nominated by the directors of Walalakoo to provide an affidavit. Ms Milgin says that she is the right person to talk for the licence area because she knows the stories for the area;
(b) Mr Charles says that he is a Nyikina traditional owner as were his parents;
(c) Ms Nadia is Ms Milgin’s sister. She states that she was born on the bank of Geegully Creek, over the stream from the licence. She says that she is a Nyikina Mangala traditional owner and speaks for the licence area because it was the country of her father and great grandfather;
(d) Ms Watson states that she is Ms Milgin’s daughter and traditional owner. She is also a cultural advisor to Walalakoo.
[20] Canny Watson’s authority is not expressly stated in the Milgin/Watson statement, but the other parties have not raised any objection in that regard and in any event the statement is jointly made with Ms Milgin.
[21] I accept the authority of Walalakoo’s witnesses to give evidence in relation to the licence area. Kallenia and the State argue that the evidence given is unreliable in certain respects and I have addressed those concerns below.
[22] On 15 August 2019, Walalakoo advised that the parties had been unable to reach agreement on a statement of facts and issues within the timeframe available. Walalakoo also submitted that there was no requirement for a hearing and that I could determine the matter on the material provided.
[23] Further, Walalakoo indicated that, due to cultural obligations, as well as in some cases their age and health, the deponents would be unable to attend a hearing in Perth. Walalakoo also did not consider evidence could be taken over the phone given the remote locations where people live, and the lack of mobile reception. Walalakoo therefore considered that if a hearing were to be held it should be held on country, but noted this raised questions of cost, delay and inconvenience to the parties as considered in Page v Teelow (see paragraph [34]).
[24] The following day, 16 August 2019, Kallenia provided an Outline of Submissions as to why a hearing is necessary and a Statement of Facts agreed by Kallenia and the State. In those submissions, Kallenia repeated the concerns outlined in its reply regarding aspects of the evidence of Walalakoo’s witnesses, particularly in relation to the location of the licence area and the limited on ground activities that Kallenia proposes to undertake. Kallenia, supported by the State, sought to cross-examine the witnesses concerned, which, under s 156(5) of the NTA requires leave.
[25] These issues were ventilated at the listing hearing on 21 August 2019. I did not give leave for Kallenia to cross-examine Walalakoo’s witnesses. The reasons for this were explained at the time but are also noted here for completeness.
[26] The key reason given by Kallenia for its request to cross-examine was the unreliability of Walalakoo’s evidence, in that a number of the witnesses did not appear to understand the location and scale of the activities proposed by Kallenia. Those concerns had been outlined in detail in Kallenia’s reply. Kallenia’s representative, Mr Kavanagh, noted at the listing hearing that this was the first occasion on which he had requested a hearing. I accept that he had a genuine concern in this case that the witnesses were operating under a misapprehension as to key facts relating to Kallenia’s intended operation.
[27] However, while I appreciate Kallenia’s desire to test the evidence through cross-examination, having regard to the following factors, I did not consider cross-examination was justified on this occasion:
(a) Kallenia had already identified, in some detail, its concerns with the reliability of the evidence, and these were factors I could take into account in reviewing the evidence, in the usual way;
(b) as discussed further at [49], Kallenia’s primary evidence and contentions on the scope of its proposed works was not as clear as it maintained, and that explained, at least to some degree, why the evidence was not limited to the MT Survey;
(c) to the extent further clarity as to Kallenia’s intentions was provided by Mr Richmond’s August affidavit, including the proposed condition, then I could take that into account in my review of the evidence;
(d) the conduct of a hearing on country would impose a significant impost on the resources of all parties; and
(e) the Tribunal’s way of operating as set out in s 109 requires it to carry out its functions in a fair just and economical way and also to take account of the concerns of Aboriginal peoples and Torres Strait Islanders, so long as parties are not unduly prejudiced.
[28] I also drew the parties’ attention to the Tribunal’s observations in Western Australia v Daniel at [28] that “Parliament has said that the Tribunal should be able to discriminate between evidence which is unreliable without resorting to an unduly technical approach to its receipt”.
[29] It follows that I am satisfied that this matter may be adequately determined on the papers.
Timeframe for determination
[30] Under s 36(1) of the NTA, the Tribunal is required to take all reasonable steps to make a determination in relation to the grant of the licence as soon as practicable. Further, Parliament’s expectation, as evidenced by s 36(3) of the NTA, is that a determination should be made within 6 months from when the future act determination application is made.
[31] In this matter, the future act determination application was lodged on 26 March 2019, but wasn’t accepted by the Tribunal until 3 April 2019. Having regard to the comments made by White J in Sheffield at [142], the 6 month date was 3 October 2019.
[32] On 25 September 2019, the Tribunal wrote to the parties providing a copy of draft conditions for consultation as discussed further from paragraph [173] below. Comments were initially sought from the parties by 30 September 2019.
[33] Walalakoo’s representative sought additional time for consultation with Walalakoo due to the remote location and difficulties communicating electronically with key members of the native title party. Noting particularly that Walalakoo hold exclusive native title rights in relation to the licence area, and given the importance of any conditions that may be imposed as part of a determination under s 38(1)(c), I allowed all parties until l5 October 2019 to provide comments.
[34] Accordingly, as required by s 36(3) of the NTA, the President of the Tribunal, the Honourable John Dowsett AM, QC wrote to the Attorney-General, the Honourable Christian Porter MP on 3 October 2019 to advise him of the reason for the delay and that I expected to make my determination on or before 3 November 2019. I have, in the event, made the determination on 4 November 2019, noting that 3 November 2019 was in fact a Sunday.
The nature of the licence and the proposed exploration activities
[35] In order to consider the matters listed under s 39(1), it is first necessary to understand the nature of the proposed act, in this case the licence, and the activities proposed by Kallenia.
[36] The Tribunal has noted on a number of occasions, the relevance or importance of what is proposed by the grantee party to its task under s 39. In Western Australia v Thomas, the Tribunal said at 222-223 (in the context of a mining lease):
The s.39 criteria are the centrepiece of the Tribunal's functions in these inquiries. The other statutory provisions establish procedures that enable these criteria to be considered. By their very nature, these criteria only make sense when they can be assessed or weighed against an actual proposal. We have already decided that the act is not just the grant of the lease but also the exercise of rights by the grantee under it. This follows from the nature of the s.39 criteria. To have concluded otherwise would have created an artificial situation where an attempt would have to be made to weigh the criteria against the mere grant of the mining lease without regard to what the grantee intends to do. It is only slightly less artificial to have to weigh the criteria knowing that initially the lease will be used for exploration but that later it could be used for a productive mine.
[37] In this case, the licence is an exploration licence proposed to be granted under s 57 of the Mining Act 1978 (WA) (Mining Act). Under s 61 of the Mining Act, exploration licences are granted for an initial term of five years, and may be renewed. The area of the licence covers four graticular blocks and is 1299.97 hectares in size.
[38] In its evidence, the State has provided a topographical map showing the licence area and surrounding features which is Attachment 1. The features shown on the map include Geegully Creek (referred to as Jirrkarli River in the Report) and Calanmya Pool (sometimes called Clanmyra Pool and referred to in the Report as Kalayanmayi Pool). Much of Walalakoo’s evidence is focussed in and around these features. According to the Report, Calanmya Pool and the primary channel of Geegully Creek are, at their closest, about 700 metres from the eastern boundary of the licence area. Dr Walsh also notes that this distance may decrease during higher flow periods, when the water bodies are wider (Report page 33).
[39] Kallenia’s contentions at paragraphs 11-14 outline the rights that will be conferred on Kallenia under the licence, under s 66 of the Mining Act, and various statutory conditions or limitations on those rights.
[40] Mr Richmond’s first affidavit, dated 21 June 2018, attaches as WRR1 a copy of the statement under s 58 of the Mining Act which accompanied Kallenia’s application for the licence (s 58 statement).
[41] In relation to the proposed exploration program and expenditure, the s 58 statement provides:
i) The exploration program has been designed to delineate and locate Gold, Base Metals and any other Valuable Commodity and thus assess the mineral potential of the area.
ii) The program will consist of data research/geological mapping and drilling of suitable targets in the second stage of evaluation.
iii) The initial exploration program will also consist of the following work;
The acquisition and analysis of any commercially available data such as magnetics, gravity, aerial photographs & an MT Survey using 4x4 Landcruisers accessing the area from granted E04/1998.
The acquisition and analysis of any available historical exploration data, environmental, ethnographic and archaeological reports.
Analysis of the above with respect to the regional setting and drilling as appropriate. No on ground disturbance or interference with fauna will take place in the first stage of evaluation.iv) Proposed Expenditure
Estimated expenditure on the first stage of exploration is $
Data acquisition and interpretation $7,500
MT Survey $3,000
Geological mapping $2,000
Field expenses $7,500
TOTAL $20,000
[42] At paragraphs 11-13 of his June affidavit, Mr Richmond elaborates on the proposed MT Survey. He explains that an MT Survey is a Magnetollourics Survey, the purpose of which is to determine whether a geological structure that is in the land the subject of Mr Richmond’s neighbouring exploration licence E04/1998 extends into the licence area. Mr Richmond’s affidavit attaches a pamphlet produced by Quantec Geoscience that further explains the nature of the survey. Mr Richmond says “this is the technology that the Grantee Party would use to explore the land the subject of the Proposed Licence.”
[43] Mr Richmond outlines at paragraph 13 of his June affidavit that the MT Survey would be undertaken by a contractor and comprise the following:
13. The MT Survey would be undertaken by a contractor and comprise the following:
a. 2 people using a 4 wheel drive light vehicle or quad bikes to access the area directly from the west from exploration licence 04/1998 off the Frome Rocks Road;
b. no clearing of vegetation or ground disturbing activities is required to access the area other than traversing using a light vehicle or quad bike;
c. The MT survey would involve a single roughly north-south traverse very near to the western boundary of the Proposed Licence;
d. The survey would have around 6 stations (locations) and at each station a small scrapping (1 m by 1 m by 0. 5m) is dug using a shovel and an electrode is buried;
e. The electrode is left in the ground for around 12-24 hours, whilst recording to an instrument, and then both electrode and recording device are recovered;
f. The area is rehabilitated (shallow excavation filled in and levelled) prior to leaving the area.
[44] Walalakoo addresses the extent of the proposed licence at paragraphs 12-21 of its contentions. It says that the Tribunal is entitled to take account of how Kallenia intends to exercise its rights under the licence, but argues that Mr Richmond’s evidence does not refer to all of the activities in which Kallenia is permitted to engage during the life of the tenement.
[45] Specifically, Walalakoo notes that whilst Kallenia refers in its evidence to an MT Survey, it does not refer to the much greater impact that may be caused by the exercise of the full suite of rights under the licence. It argues at paragraph 19 that Kallenia has described only an ‘initial program of works’, but that it is reasonable to assume that following a positive result, Kallenia will increase its operations to the maximum possible extent prior to applying for a mining lease under the Mining Act.
[46] As noted above, Kallenia argued in its reply, and at the listing hearing, that Walalakoo’s witnesses misunderstood the nature of the exploration proposed under the licence because their evidence assumed greater on ground exploration than just the MT Survey.
[47] In my view, it is unsurprising that Walalakoo assumed that Kallenia may exercise the full extent of rights under the licence, in light of Kallenia’s contentions, referred to at [39] above, and the fact that the proposed work program, extracted at [41] above, specifically identifies the MT Survey as only part of initial exploration and contemplates “drilling as appropriate”. The program of works indicates there will be no on ground disturbance or interference with fauna “in the first stage of evaluation” but also specifically refers to “drilling of suitable targets in the second stage of evaluation”.
[48] In paragraph 12 of his June affidavit, Mr Richmond does refer to the MT Survey as “the technology that the Grantee Party would use to explore the land the subject of the Proposed Licence”. However, he also states at paragraph 5 that the s 58 statement (extracted above) gives “a summary of the exploration intended to be done on the land the subject of the exploration licence when granted”.
[49] Overall, it is by no means clear from Kallenia’s contentions and Mr Richmond’s June affidavit that conduct of the MT Survey is the only exploration activity proposed. I note also that, in Walalakoo v Kallenia, Member Shurven considered it likely that Kallenia may exercise the full suite of rights available to it under the Mining Act.
[50] However, at the time of providing its reply, Kallenia provided a further affidavit from Mr Richmond, sworn on 2 August 2019, in which he states:
3. I refer to paragraphs 14 to 21 of the undated "Native Title Party Contentions -
s 39" in relation to how the Grantee Party may exercise its rights if exploration licence 04/1998 (Proposed Licence) is granted. In my affidavit sworn 21 June 2019 I described in paragraphs 11 to 13 the nature of an MT Survey.4. To make it clear, the Grantee Party does not intend to undertake any other on ground exploration on the land the subject of the Proposed Licence other than the MT Survey. The reason for this is to determine whether a resource that potentially exists on the contiguous exploration licence, exploration licence 04/ 1998, extends into the land the subject of the Proposed Licence.
5. The proposed location of the MT Survey is shown hatched in red on a map a true copy of which is attached hereto and marked with the letters "WRR10".
6. The Grantee Party is prepared to accept that a condition be imposed by the Tribunal that provides that the Proposed Licence be granted subject to a condition that it only be permitted to exercise the rights under the Proposed Licence to the extent of carrying out an MT Survey.
The map referred to by Mr Richmond is Attachment 2 to this determination. The proposed area of the MT Survey is delineated by hand drawn hatching but indicates that the MT Survey will be limited to the western side of the licence and appears to cover less than half of the licence area.
[51] I accept what Mr Richmond now says about the limited scope of activities proposed but note that, in the absence of a condition on the licence as proposed by Kallenia, there is nothing to restrict the scope of exploration activities that may be conducted under the licence.
Proposed Endorsements and Conditions
[52] The State’s evidence includes draft endorsements and conditions proposed to be attached to the licence upon grant, which are Attachment 3.
Consideration of section 39 criteria
[53] In its contentions, Walalakoo has grouped its consideration of the impacts of the licence insofar as ss 39(1)(a)(i)-(iv) are concerned and has submitted that its contentions and evidence should be read as a whole because of the overlap between a number of the s 39 criteria. I have addressed the evidence and contentions as relevant under the headings below, but I have taken account of the material as a whole in making my determination.
Effect on the enjoyment of registered native title rights and interests: s 39(1)(a)(i)
[54] Native title has been determined to exist in relation to the licence area and therefore the registered native title rights and interests are those described in the relevant entry on the National Native Title Register (s 30(3) NTA).
[55] The State’s evidence shows that the area of the licence is situated within the area of pastoral lease PL N049814 held by Myroodah Aboriginal Corporation. In accordance with the Nyikina Mangala determination, the native title rights and interests held on trust by Walalakoo in the licence area are:
(a) except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others; and
(b) in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:
(i) the right to hunt on, fish from, take, use, share and exchange the natural resources of the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes;
(ii) the right to take, use, share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes.
Effect on Walalakoo’s right to exclusive possession
[56] Walalakoo argues that the effect of the grant of the licence will be to nullify its right of exclusive possession of the area for the life of the licence because Kallenia will have a right to access the licence area without an invitation from Walalakoo. It says this is the effect of the NTA, including the non-extinguishment principle under s 238. The effect of the non-extinguishment principle is that, while native title is not extinguished, any native title rights and interests wholly or partly inconsistent with the grant of the licence have no effect in relation to the licence during its term.
[57] In its contentions, the State argues that the NTA will protect native title through the application of the non-extinguishment principle and contends that Kallenia will not be able to restrict Walalakoo or any common law holders entering the proposed tenement area, unless that is necessary to prevent interference with the exercise of its rights under the lease (by which I take it to mean the licence). The State says that this means there will be scope for Walalakoo or the Nyikina Mangala people to exercise and enjoy native title rights and interests in the licence area. The State does not specifically address Walalakoo’s submission in relation to its right of exclusive possession, but it does agree with and adopt Kallenia’s reply (subject to any express statement or implication to the contrary). (State’s contentions at paragraphs 28 and 31)
[58] In its reply, Kallenia disputes that the grant of the licence will nullify Walalakoo’s right of exclusive possession because the NTA anticipates that future acts, such as the grant of the licence, may be done in respect of land subject to native title, including exclusive native title rights. Kallenia also contends that the starting point is not that Walalakoo holds exclusive possession but that the nature of native title rights is only one factor to be taken into account.
[59] It is of course correct that the NTA enables the grant of the licence to be validly done in relation to land or waters where native title exists, subject to compliance with the right to negotiate provisions under the NTA. That is how this matter comes before me.
[60] However, the fact that Walalakoo’s native title is held subject to the NTA and that the NTA provides for the doing of acts that affect native title, says nothing as to what that effect is and, more particularly for this criterion, the effect on the enjoyment of native title rights and interests.
[61] If the licence is granted, Kallenia will be able to enter the licence area to conduct any permitted activities without requiring permission from Walalakoo. This means (by application of the non-extinguishment principle) that Walalakoo’s right to exclude third parties from the licence area will be ineffective as against Kallenia for the duration of the licence. It follows that Walalakoo’s right to exclusive possession is affected to that degree, although as noted in Holocene at [71], Walalakoo will retain the right to exclude others from the area.
[62] I do agree with Kallenia, however, that this is only one of the factors I must take into account.
Effect on the enjoyment of other native title rights and interests
[63] Walalakoo has also provided contentions and evidence as to the effect of the licence on the enjoyment of its native title rights with respect to hunting, fishing, gathering and using natural resources, intergenerational teaching and its use of water.
[64] In Walalakoo v Kallenia, Member Shurven found as follows in relation to Walalakoo’s activities on the licence area and the likely impact from the grant of the licence (noting that in that case Member Shurven considered it likely that Kallenia would exercise all of its rights under the licence):
[52] As noted above, up to 1,000 tonnes of material could be removed from the area upon grant of the licence. It has also been indicated that Kallenia Mines might drill to at least 650 metres depth, and build and use storage facilities on the licence. Kallenia Mines asserts interference is not likely as it will enter the licence from the west, that is, from Mr Richmond’s existing tenement. I note interference that may appear trivial to a person not a member of a native title party, may be substantial having regard to the native title party’s traditions (see FMG v Yindjibarndi at [75]–[79]). I believe this matter is one to which these circumstances apply.
[53] The Nyikina Mangala People have established that they undertake hunting, gathering and intergenerational teaching on the licence. They have also established the licence is an important area for these activities because of its proximity to Aboriginal communities, Clanmyra Pool and Geegully Creek. As such, I accept there is an intensity of activity that is likely to be interfered with by exploration activities of Kallenia Mines. That is, I find Kallenia Mines’ proposed exploration activities are likely to directly and substantially interfere with the Nyikina Mangala People’s hunting, gathering and intergenerational teaching social and community activities conducted on and near the licence. On this basis, I determine the expedited procedure does not apply.
[54] I note I do not, however, find it likely Kallenia Mines’ exploration activities would interfere with the Nyikina Mangala People’s fishing activities, as these would be restricted to Clanmyra Pool and Geegully Creek, which is off the licence. I also find camping activities, which appear to occur substantially at main camp not on the licence, are unlikely to be interfered with. Whether or not drilling into the sub strata would affect the water in the area is something for which evidence has not been lead.
[65] In my view, the evidence before me in relation to Walalakoo’s native title rights exercised in and near the licence area is generally consistent with Member Shurven’s findings. My consideration of each aspect of the native title rights said to be enjoyed in the licence area, is set out below, taking account of the objections raised by Kallenia and the State.
[66] Clearly, a key change in the evidence since Walalakoo v Kallenia is that Kallenia now says it will only undertake an MT Survey in part of the licence area.
The Ethnoecological Report
[67] On 26 August 2019, following discussion at the listing hearing on 21 August 2019, Walalakoo provided the Report which replaced the interim report (NTP Doc 9). The State and Kallenia were then allowed a short time to provide comments, which they did.
[68] In section 8 of the Report, Dr Walsh states her brief from the Kimberley Land Council was to:
1. Gather evidence and give opinions on the ethnoecological significance of the tenement area
2. Identify ecological and other features that might explain why the area is important for hunting and other uses, as stated by native [title] holders
3. Identify if there were salt licks that could be used by meat animals, as stated by native [title] holders
4. Identify potential risks from the proposed development
[69] The Report is subject to a number of qualifications set out in section 4.1, many of which go to the short time for its preparation, being less than 14 days. In section 9, Dr Walsh sets out the methods used and notes that the Report is derived from two days field work from 22 – 24 July 2019.
[70] Dr Walsh’s credentials are set out in section 5 of her Report and I accept her expertise as an Ethnoecologist.
[71] Contrary to the indication given by Walalakoo at the listing hearing, Dr Walsh’s final report totalling 65 pages is markedly different to the draft report which comprised 29 pages. Dr Walsh herself states in section 8 that the final report “expands on” the interim report. Walalakoo maintains that, despite the changes made to the final report, it reaches the same conclusions, while providing more evidence and cross-referencing.
[72] In any event, the objections to the Report raised by Kallenia and the State are directed primarily at Dr Walsh’s conclusions.
[73] Kallenia notes that the Report includes Dr Walsh’s expert opinion that “there are significant risks to wildlife and ecosystems from proposed developments in the area.” (Report, page 57). Kallenia submits this conclusion should not be accepted as Dr Walsh has not analysed its proposed exploration in making that assessment and has made no assessment of the likelihood of the risks.
[74] The State, similarly, questions Dr Walsh’s expertise to draw conclusions regarding the impact of the licence and argues that I should not accept the conclusions when the Report does not take account of the limited activities now proposed by Kallenia. In this respect, the State observes that the Report refers to risks from ‘developments’ and ‘mining’ generally, rather than the licence under consideration. The State contends that I should give little or no weight to the Report and should not use it as a basis for determining that the grant of the licence may not be done.
[75] In response, Walalakoo reiterated that it has prudently assumed that Kallenia may exercise all of its rights under the licence.
[76] I agree with many of the contentions made by Kallenia and the State in relation to the Report. I have had regard to, and given some weight to the Report to the extent it deals with the first three subparagraphs of Dr Walsh’s brief at paragraph [68] above. I also accept that the report has identified risks that may arise from certain activities associated with exploration and mining generally, as well as the views of Dr Walsh and her informants with respect to those risks. In many respects, the Report is consistent with the evidence of Walalakoo’s witnesses, as I discuss further below.
[77] However, there are a number of difficulties with respect to how the Report deals with the risks arising from the grant of the licence. Firstly, the scope of ‘the proposed development’ considered by Dr Walsh as part of her brief is not clear from the Report.
[78] Table 6 in the Report is titled ‘Risks from prospecting and potential mining in relation to ecosystems and uses of the areas by native title holders’. The risks listed in the table are not exhaustive and Dr Walsh herself states at page 54 that she has not specified the likelihood of any of the risks identified. In the summary in section 6, Dr Walsh states her opinion that the cumulative risks of developments across Nyikina Mangala country, of which the licence would be one, are strong.
[79] Another factor is that the Report is primarily focussed on the area in and around Geegully Creek and Calanmya Pool adjacent to the licence, although it does cover the watershed eastwards across the licence area to Geegully Creek (Map 2 and section 11.4).
[80] As Kallenia now says it will only conduct an MT Survey on the western half of the licence I am unable to draw any specific conclusion from the Report as to the risk of that activity.
Hunting
[81] Walalakoo contends that the grant of the licence will have an impact on the exercise of its native title right to hunt and that the area is identified as having uniquely high densities of wildlife for the region.
[82] Mr Charles, who also accompanied Dr Walsh on her field trip, says that he knows where the licence area is, because it is “right near Gee Gully Creek and over an important hunting area” (Charles affidavit paragraph 3). He says that the area is one of the best hunting locations in the whole region and is somewhere he goes around eight times a year to do hunting and camping. He also says that it is not possible to move hunting to another place as this is the area with the most animals.
[83] The Report also records at page 32 a statement of Mr Charles, stating: “When I hunt Emu I go to the main water holes. They’ll come to them waterholes. Emu come to you.”
[84] At paragraphs 10-12 of his affidavit, Mr Charles says:
10. The meat and bush tucker we bring back is mainly for my family to eat. We catch it, skin it, and either eat it there or put the meat in the esky to bring home. We give a lot of our old people as they are not healthy, and bush medicine and fresh meat helps them a lot to eat properly.
11. Animals come to this area because there are waterholes in the area and there is better grass and scrub than the other areas. You can see the land is more dry outside of this area on the map. Wallabies dig up mud in this area to get to water. There is water underground here.
12. The area is particularly good for chasing emu too, as it is relatively open with soft vegetation. if we couldn't get to this area, we would not be able to find and catch them.
[85] Mr Charles’ evidence is consistent with Ms Watson’s evidence (Watson affidavit paragraphs 4 and 9) and with paragraph 12 of the Milgin/Watson statement.
[86] In the Report, Dr Walsh notes that an exceptionally high biodiversity of resources was recorded during her field work, with more than 29 resource species recorded in two days. Dr Walsh also states that the Calanmya Pool - Geegully Creek area had the highest diversity of hunted species in local habitats she has observed in 33 years of hunting and gathering with Aboriginal people. She states that in the two days of field work with two Nyikina Mangala people she recorded more signs of animal food and resource species than observed elsewhere in desert Australia and other regions where she has done comparable research (Report page 39).
[87] The Report goes on to state, at page 40:
The reasons for this high biodiversity of animal resource species are complex and inter-related. These reasons include: the presence of a perennial water body, this water as a refugia area under extremely dry interannual rainfall conditions, high habitat diversity with a minor river connecting the uplands of the Edgar Ranges downstream to the Fitzroy River and connecting desert areas to the subtropical areas of the southern Kimberley (also see McKenzie et al 1981). The Kalayanmayi Pool area has freshwater seepages and salt licks (each discussed earlier). The pool and river have dense tall woodlands that provide shade, food and other habitat requirements for desert wildlife. The soft deep sands of the river banks provide substrates suited to burrowing animal species such as two species of edible goanna, Echidna and others.
[88] Walalakoo submits that the reasons for the elevated wildlife densities and the particular suitability of the licence area for hunting are the existence of naturally occurring salt licks, access to water (including underground water) and higher vegetation density.
[89] In that respect, it can be seen from the map at Attachment 1 that the vegetation adjacent to Calanmya Pool and the relevant part of Geegully Creek extends into the south-western corner of the licence area. This is also the part of the licence area visited as part of preparation of the Report.
[90] Similarly, NTP Doc 12 comprises maps from the Bureau of Meteorology said to show water bodies along Geegully Creek and Calanmya Pool. Walalakoo contends these maps show the floodplains extend into the licence area by around 600 metres (Walalakoo Contentions at paragraph 59), although the licence area is not shown on them.
[91] I note also that the Report states that Dr Walsh and her informants approached the licence area from the eastern side along Geegully Creek because “wetlands are the focus of human activities and ecological systems especially in arid environments.” (Report page 25)
[92] The evidence in relation to the suitability of the area in and around Geegully Creek and Calanmya Pool for hunting is not disputed by Kallenia and the State, but they do argue that Mr Charles’ evidence is uncertain as to the areas referred to and shouldn’t be accepted because he uses general expressions such as ‘this area’ and ‘the area’.
[93] However, Mr Charles also states at paragraphs 15-16 of his affidavit:
15. As I mentioned, I don’t want to let any mining exploration here. It’s too close to the river and the water run downhill toward the river. That will kill the fishes and the animals. When I go there, I drive in from the West, through the wattle trees, then hunt through the area towards the river. Having a mining exploration or a mine will have a big effect on whether we can go there and do what we do now.
16. We need to travel all across this area to hunt. We wouldn’t be able to catch emu in this area if we had our access restricted as they take off and run a long way. The area is particularly good for chasing emu too, as it is relatively open with soft vegetation.
[94] This evidence is consistent with the Report which states that the licence area has slopes that trend east and south-east towards Geegully Creek (Report Map 2 and Section 11.4).
[95] I accept from the evidence that the area adjacent to the licence area near Geegully Creek and Calanmya Pool is an important hunting area for Nyikina Mangala people and that it is particularly suitable for hunting because of its habitat and density of wildlife. I am also satisfied that the hunting activities extend into the licence area, particularly the more densely vegetated area in the south-western corner of the licence, which is the area visited by Dr Walsh and her informants. However, the extent of hunting across the whole of the licence area is less clear. It may occur, but based on the evidence it may be less intensive than hunting on the eastern side.
[96] On the basis that Kallenia will conduct only an MT Survey on the western side of the licence, I consider the impact of the grant of the licence on the exercise of hunting rights will be limited.
Fishing
[97] Walalakoo contends that there is a significant potential for Kallenia’s activities to pollute and interfere with important water bodies, including Calanmya Pool and Geegully Creek.
[98] Kallenia argues that Ms Milgin’s evidence in relation to fishing on the licence area should not be accepted because there is nowhere on the licence area where fishing could take place.
[99] In relation to fishing, Ms Milgin says in her affidavit:
9. Where the tenement area is it is very close to Geegully Creek just across the creek is our main camp.
10. In the Geegully creek, near the bend just where the tenement area is, that is the main area where there are two water holes with living water, which is there all year around.
11. The name for the living water is called Ungur. All those Ungur places have names.
12. The river further towards the Fitzroy the river sometimes goes dry, the water is shallow but at that place on the river is the main pool where you can fish all year around.
13. We also use that water for drinking.
14. We go fishing there. In those pools you can find crocodile, catfish and bream.
15. People who live at the surrounding communities like Jarlmadangah and Looma can go to the tenement area and near there on a day trip to go hunting and fishing.
[100] While there is some evidence of underground water on the licence area (Report section 11.5), there is no evidence of fishing on the licence area itself. This is consistent with Member Shurven’s finding in Walalakoo v Kallenia, that fishing activities would be limited to Calanmya Pool and Geegully Creek.
[101] In this matter, the key focus of Walalakoo’s concern in relation to fishing is in fact in relation to the possible effect of exploration activities on the water sources, through possible pollution. (Walalakoo contentions paragraphs 67-69). The Report also refers to the risk of subsurface seepages from mining developments and the possibility for downstream effects on Calanmya Pool, Geegully Creek and the mid and lower Fitzroy River (Report section 11.5).
[102] However, I am unable to draw any conclusion regarding possible water impacts based on the evidence. Certainly, if Kallenia’s activities are limited to the MT Survey in the area proposed, then any impacts on water or nearby fishing activities are unlikely.
Impact on supplementary food supplied to old people
[103] Walalakoo refers to Mr Charles’ evidence mentioned at [84] above, regarding the provision of fresh meat and bush products to old people.
[104] Walalakoo contends this is an important part of Nyikina Mangala culture and traditions, however, there is insufficient evidence to draw any conclusion as to how the activities proposed by Kallenia may affect this activity, particularly given my findings in relation to hunting above.
Gathering and using resources
[105] Walalakoo contends the licence is of crucial importance as a location where traditional bush foods are gathered because of the abundance of water and the high instance of these resources compared to surrounding country.
[106] Ms Milgin refers to there being a lot of sugar bag in the licence area and it being used for people who are sick. She also refers to collecting wattle seeds called Kalayanin. (Milgin affidavit paragraph 16).
[107] Kallenia argues that this evidence should be treated with caution because Ms Milgin also refers to fishing in the area. I don’t consider the references are connected as the fishing references are made in the context of Geegully Creek, which Ms Milgin says is very close to the licence area. The evidence regarding gathering sugar bag and wattle seeds is in specific reference to the licence area. As noted previously, Mr Charles also deposes to accessing the licence area from the west through the wattle trees (see [93] above), which is consistent with the wattle being collected on the licence area.
[108] Linda Nadia also refers to harvesting bush medicine in the area (Nadia affidavit paragraph 14).
[109] Brendan Charles says bush foods are collected from the area, particularly sweet little black plums as well as wood from the Marnawanji tree used for smoking ceremonies (Charles affidavit at paragraph 9).
[110] Consistent with Walalakoo v Kallenia, I am satisfied that common law holders use the licence area for gathering and utilising resources. However, based on the evidence, the proposed MT Survey is unlikely to substantially interfere with those activities.
Effect on way of life, culture and traditions: s 39(1)(a)(ii)
Damage to the native title holders’ connection with the land or waters
[111] Walalakoo contends that the grant of the licence will have impacts beyond the licence area itself and will result in cultural loss that will be acutely felt by Nyikina Mangala people.
[112] Walalakoo also argues that Kallenia may restrict access to the whole of the licence area and therefore access to the adjacent portion of Geegully Creek. However, there is no basis for this assertion, considering the activity proposed.
[113] I accept from the affidavit evidence and the Report that Nyikina Mangala people are particularly concerned about the impact of mineral exploration and production (in the general sense) in areas close to Geegully Creek and Calanmya pool. However, the MT Survey will be of limited impact.
[114] Because Walalakoo has, understandably, proceeded on the basis that all of the rights under the licence may be exercised, there is no specific evidence relevant to the MT Survey that I can consider here.
Effect on development of social, cultural and economic structures: s 39(1)(a)(iii)
[115] Walalakoo submit that the grant of the licence will have a negative effect on its planned use of the licence area for a number of cultural, social and economic purposes, citing the Yiriman Project, Kimberley Dreamtime Adventure Tours and the Walalakoo Healthy County Plan as evidence.
Yiriman project
[116] The Yiriman project is a program for rehabilitating young people, with a focus on access to country and traditional knowledge. In Walalakoo v Kallenia, Member Shurven accepted that intergenerational teaching associated with this program occurred on and near the licence area.
[117] In this case, the Milgin/Watson statement refers to the licence area being used for the Yiriman project, although the references seem to be closely associated with Geegully Creek.
[118] Linda Nadia also refers to taking kids out on country instead of taking them to juvenile detention programs, which I take to be a reference to the Yiriman project (Nadia affidavit, paragraph 13).
[119] Walalakoo argues that Kallenia’s activities carried out in accordance with the licence would directly interfere with this project. I accept that the licence area is used for the Yiriman project, but again, it is not clear whether this use extends to the whole of the licence area or is limited to areas near Geegully Creek.
[120] In any event, any interference from the MT Survey is likely to be limited and of short duration.
Kimberley Dreamtime adventure tours
[121] Walalakoo says the licence area is of particular economic significance to Nyikina people due to its location on the route of the camel tour operated by Kimberley Dreamtime Adventure Tours.
[122] At paragraph 12 of her affidavit, Ms Nadia says:
We do our camel tour along the river near the Tenement. We run a camel tour called Kimberley Dreamtime Adventure Tours, a 10 day tour and we still do that today. If a mine was put in there, it would be very bad for the tour, affecting our livelihoods. The Tenement Area is getting too close to the river. It would stop our visitors from being able to see out country and culture.
[123] Once again, the clear references to location are to the river, which I understand to be Geegully Creek. There is no evidence that the camel tours would occur in the part of the licence area proposed for the MT Survey, or would be subject to interference from the limited scope of that activity.
Walalakoo Healthy Country Plan
[124] Walalakoo relies on the Walalakoo Healthy County Plan 2017-2027 which includes a socio economic target called ‘Being Strong on Country’, that seeks to capitalise on economic opportunities such as tourism. Walalakoo argues that its economic development plans for Nyikina Mangala country requires the licence area to be kept pristine to support the types of endeavours currently in development, rather than what it calls ‘externally led economic development with no local content’. Walalakoo does not specify the types of endeavours currently in development.
[125] This plan applies broadly to all land held by Walalakoo under the Nyikina Mangala determination, not just the licence area, but it does show Walalakoo’s approach to managing Nyikina Mangala country, including the licence area. Again, given the limited scope of exploration proposed, there is no reason to conclude that the grant of the licence would defeat any plans for the licence area.
Effect on freedom of access to the land or waters and freedom to carry out rites, ceremonies or other activities of cultural significance in accordance with traditions: s 39(1)(iv)
[126] Walalakoo refer to continuing strong cultural practice on the licence area in relation to the songline discussed below. They say that for a tenement to be granted in such close proximity so as to directly overlay with the path of a critical songline is of great concern and worry to members of Walalakoo. (Walalakoo Contentions paragraph 91)
[127] I accept this is a serious and real concern for Walalakoo but note that Walalakoo’s freedom of access to the licence area will only be limited to the extent of the MT Survey proposed to be conducted by Kallenia in the western part of the licence area. The activity will be of limited duration and impact and occur away from Geegully Creek, Calanmya Pool and adjacent parts of the licence area.
Effect on any area or site of particular significance: s 39(1)(a)(v)
[128] Walalakoo cites the Tribunal’s findings in Walalakoo v Kallenia with respect to sites of particular significance. In that matter Member Shurven was satisfied that Calanmya Pool and Geegully Creek were sites of particular significance to Walalakoo but found that those sites were not within the licence area.
[129] In this case, Walalakoo says that the significance of Calanmya Pool extends beyond the pool itself to the surrounding land and into the licence area. Walalakoo says this is because there is a songline associated with Woonyoomboo/Winyanbu that connects the pool, Geegully Creek and the Oongkoorr area. A recording of the songline is NTP Doc 6. The evidence indicates that the songline is related to but separate from the creation story associated with Calanmya Pool.
[130] Table 1 of the Report on page 12 identifies spiritual associations with Calanmya Pool as a significant feature near the licence. It states that the informants volunteered these were ‘living waters’ and named them ungud. The Report states that synonyms of ungud are ungudd and oongkoorr and that the waters are said to be associated with a Snake as a creator being.
[131] The AHIS search provided by the State shows that there are no registered sites in the licence area. However, sites do not need to be registered to be of particular significance (see Little v Lake Moore Gypsum at [67]).
[132] In relation Oongkoorr, the Milgin/Watson statement states at paragraph 4 that “Oongkorr is next to Geegully Creek, it is where the Tenement Area is now”.
[133] Further, at paragraphs 12 and 13, Milgin and Watson state:
12. At Ooongkoorr, everything is in one place-medicine, food, hunting. That's why it's so special. They are here and not in any other place because everywhere else is desert. This is the main water place for animals, plants, and even for us mob. This is our main hunting ground and gathering ground. You can see on the map that it is more green here than in other areas. There is no other place like that anywhere around. There are also many things that grow along the riverbank here that don't grow in other places.
13. A long time ago, we only had catfish and brim. And since the flood, now everything from the Fitzroy River, all of the fish have come to Ooongkoorr. Swordfish, crocodile, turtles, prawns and many other fish species. It is unusual for them to be there and it makes Oongkoorr special.
[134] From all the evidence it appears that Oongkoorr is located near to Geegully Creek. To the extent it may extend into the licence area, it appears, from the Milgin/Watson statement to be limited to the more heavily vegetated areas. Mr Charles also refers to the songline “along the river” (Charles affidavit paragraph 13).
[135] I accept the particular significance of Geegully Creek, Calanmya Pool and the Oongkoorr site to Nyikina Mangala People, especially in relation to their association with the songline. While the location of the Oongkoorr site referred to in the Milgin/Watson statement is not entirely clear from the evidence, I infer that it is adjacent to Geegully Creek and Calanmya Pool and may extend into part of the licence area. However, based on the location of the proposed MT Survey, there is no evidence that Kallenia’s proposed activities will interfere with the Oongkoorr site.
Interests, proposals, opinions or wishes of Walalakoo in relation to the management, use or control of land or waters affected by the licence: s 39(1)(b)
[136] Walalakoo says that to the best of its knowledge there have never been activities conducted on the land other than by the Nyikina people (Walalakoo contentions paragraph 115). In that respect, Ms Watson (at paragraph 4) says the area is “still untouched” and Mr Charles says at paragraph 14 “we never see anyone else here, this is a special place for Nyikina people”.
[137] The land is subject to the Myroodah pastoral lease and the Quick Appraisal document provided by the State as Document 3, shows that the licence area has been the subject of a number of previous mining tenements. The State contends that the ability of Walalakoo and relevant common law holders to exercise native title rights will likely be affected by past or current land tenures. It says in particular, that given the prior mining tenure and the pastoral activities in the area of the licence, it is reasonable to assume that many persons may have previously entered and used the licence area.
[138] Of course, the mere existence of previous grants does not mean activities were conducted on the licence area, and the pastoral lease is now held by Myroodah Aboriginal Corporation and subject to the exclusive native title rights held by Walalakoo, a fact which the State’s submissions seem to overlook. In that context, I don’t consider the prior grants are relevant.
[139] Ms Nadia deposes that she and Ms Milgin, who is her sister, are considering securing an area near Calanmya Pool for a youth cultural centre and for activities such as bead making.
[140] Walalakoo, as the native title holder holding exclusive native title to the licence area, presently controls the land and waters affected by the licence. The licence area is very close to Geegully Creek and Calanmya Pool, both of which are important areas for activities undertaken by Walalakoo and members of the Nyikina Mangala people and significant sites. It seems clear that at least parts of the licence area are also particularly suited to hunting and gathering activities, having regard to its natural features, although the majority of the evidence focusses on the parts of the licence area close to Geegully Creek.
[141] In Holocene, the Tribunal observed:
[163] A further relevant factor relates to the weight to be given to the native title holders’ interests, proposals, opinions or wishes in relation to the management, use or control of the land where native title is determined and the native title holders have the right to possess, occupy, use and enjoy the land to the exclusion of all others. In my view, the fact of a determination of exclusive native title rights of a substantial kind does increase the weight that can be given to this criterion. It cannot be of such weight applied in a standard way that it would be tantamount to a veto to be applied in all cases. In cases where the future act would have little impact on the enjoyment of native title rights and no interference with sites of particular significance, the weight given to such a determination will be less, perhaps much less. As a general proposition, there is a difference between making a future act determination over an area of exclusive possession and making a determination over an area where the right to exclusive possession has been extinguished and the capacity to exercise or enjoy other native title rights is seriously attenuated because of the exercise of non native title rights, such as pastoral interests which may have existed since the early days of European settlement.
[142] Similarly, in the circumstances of this matter outlined above, I have given increased weight to this factor, but not to the extent it would amount to a veto.
Economic or other significance of the licence: s 39(1)(c)
[143] Under s 39(1)(c) I am required to take into account the economic or other significance of the act to Australia, the State, the area in which the licence is located and to the Aboriginal peoples and Torres Strait Islanders who live in that area. This requires an evaluation of the economic or other significance of the proposed licence, rather than consideration of the significance of exploration or mining generally (Western Australia v Thomas at 175-176).
[144] The State contends that the Tribunal has often found that the grant of mining leases will be of economic benefit to the State, as well as regional or local areas, and that there is no reason why a similar finding should not be made in this case. It argues that the grant of the licence will enable exploration of an area of the State that may result in discoveries that will be of economic signification to the nation the State and the Shire of Derby – West Kimberley in terms of royalties, employment opportunities and export income, in addition to direct but smaller economic benefits likely to be created. However, most of this is speculative and dependent on the extent of any discoveries made and projects ultimately developed.
[145] Kallenia submits that there will be a benefit to the State economy through the payment of royalties and to the nation by contributions to the tax base by Kallenia and its employees. However, in light of the scope of exploration activities proposed by Kallenia, the basis on which royalties would be payable is not clear.
[146] Mr Richmond says that his intent is to identify the extent of a geological structure that is in the land the subject of his neighbouring exploration licence E04/1998 but does not explain what the significance of this could be. The only evidence provided is the expenditure estimate in the statement accompanying the licence which is $20,000 for the first stage of exploration including the MT Survey estimated at $3,000 (see paragraph [41] above).
[147] Walalakoo submits that the economic significance of the licence to Australia and the State is negligible, and that the licence will provide no economic or other benefit to Aboriginal people who live in the area. Walalakoo notes also that Kallenia has not given any indication in relation to economic opportunities to the Aboriginal people who live in the area, for example through heritage surveys.
[148] I accept that, assuming the proposed exploration activities proceed, there will be some benefits associated with expenditure on exploration and presumably rental payments to the State, but given Mr Richmond’s evidence regarding the proposed MT Survey, this is likely to be minimal. There is no evidence in relation to employment opportunities or potential benefit to any Aboriginal people.
[149] Overall, I consider the grant of the licence will be of only marginal economic significance.
Public interest in the grant of the licence: s 39(1)(e)
[150] Section 39(1)(e) requires the Tribunal to determine whether the proposed future act is ‘in the public interest’. This expression has been described as importing a discretionary value judgment made by reference to undefined factual matters, and only confined by the subject matter, scope and purpose of the legislation (see Minister for Lands v Buurabalayji Thalanyji Aboriginal Corporation at [266]). There can be a public interest in the act proceeding or not proceeding, and the public interest is not limited to economic considerations: Western Australia v Thomas at 176.
[151] Only the State and Walalakoo provided primary contentions in relation to this criterion.
[152] The State submits that the public interest will be served by the grant of the licence given the economic benefits that will accrue at a local, State and national level, noting that the Tribunal has repeatedly held that mining and exploration activities are in the public interest for the purpose of this criterion.
[153] I have already addressed the question of economic benefit from this particular licence at [149] above. However, the Tribunal has previously recognised that there is a public interest in maintaining a viable mining industry, which in turn requires exploration. This is a point the State also highlighted in its reply at [15]. (Western Australia vThomas at 176). The grant of the licence in this case would form part of that overall public interest, however minor the activities proposed.
[154] Walalakoo argues that the public interest is not well served by granting the licence to Kallenia, due to its extensive record of non-compliance with its legal and contracting obligations, and an ongoing disregard of those cultural, social and ecological matters of most interest to Walalakoo (Walalakoo Contentions at 150).
[155] In support of this contention, Walalakoo refers to Mr Richmond’s history of not fulfilling his financial obligations. Walalakoo cite previous Warden’s Court decisions and provide an email from Anne Sigley, the Manager of the Kimberley Sustainable Development Trust Pty Ltd (KSD). Ms Sigley states that over the 10 years she has been in the role, KSD has had difficulties obtaining payments from both Mr Richmond and Kallenia and that a number of bad debts have been written off.
[156] In reply, Kallenia contends that the Warden’s court decisions are not relevant to my task here and in his August affidavit, Mr Richmond denies any liability to KSD.
[157] I have read each of the Warden’s court decisions cited by Walalakoo. A number do result in decisions adverse to Mr Richmond, however, some don’t and some are actions taken by Mr Richmond or Kallenia. I haven’t given those decisions any weight in this matter. Similarly, there is little I can draw from Ms Sigley’s email as there is no context or substantiation provided for the alleged debts, and any indebtedness is denied by Mr Richmond.
[158] Walalakoo has also provided information in relation to the heritage values of the Fitzroy River catchment (NTP Docs 17 and 19), particularly in relation to the creation stories. It argues that there are heritage values in the licence area that “would undoubtedly be impacted in an unmitigated way should the Tenement be granted”. Walalakoo contends that the protection of these values lend strongly to a finding that the grant of the licence is against the public interest.
[159] I have considered this material but I have not afforded it much weight given the limited exploration activities now proposed by Kallenia under the licence.
[160] Overall, I am satisfied there is a minor public interest in the grant of the licence, as part of maintaining a viable mining industry.
Any other matter the Tribunal considers relevant: s 39(1)(f)
[161] There are no other factors I consider relevant to determine this matter. All of the matters raised by the parties have been taken into account under the criteria above.
Should the licence be granted and, if so, should conditions be applied?
[162] I have weighed the likely effect of the grant of the licence on the matters in s 39(1)(a) and the interests of the native title parties at s 39(1)(b), against its economic significance, the public interest in the grant of the proposed tenement and other relevant matters at ss 39(1)(c)-(f).
[163] If Kallenia was seeking to conduct the full suite of exploration activities available under the licence, the balancing of the matters under s 39 may fall against it. However, in light of Kallenia’s intention only to conduct the MT Survey in the western half of the licence area, I am satisfied that the grant of the licence may be done, but consider it is appropriate for the grant to done subject to conditions, as discussed below.
[164] I note also that the State’s draft ‘endorsements and conditions’, outlined in Attachment 3, will apply to the licence.
Conditions on the grant of the licence
[165] The scope of the Tribunal’s power to impose conditions under s 38(1)(c) was considered by the Federal Court in Evans v Western Australia. RD Nicholson J observed at 213:
… there is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2). It is apparent the conditions must be attached to "a determination that the act may be done" subject to the conditions. The subject matter of the conditions appears to be shaped by the broad purpose there be a determination of the act and by the requirements of s 39 that in making its determination the arbitral body must take into account the criteria there listed. The consequences flying from the exercise of the power are the proposed act may only be done as if the conditions were terms of a contract among the negotiation parties; the conditions are also subject to overrule: s 42(1); and where the conditions relate to compensation, there is the requirement for payment into trust: ss 41(3) and 52. From the nature of these provisions there is certainly a requirement for linguistic certainty because, absent it, the conditions could not operate as in contract and provisions for payment could fail. That uncertainty is not what is contended for in this case.
[166] His Honour went on to note that the evident purpose of s 38 is to finally determine the issues where negotiations between the parties have failed to do so (Evans v Western Australia at 214).
[167] In Muccan 3, former Tribunal President Raelene Webb QC addressed the difficulty that arises in determining the effect of a grant in the absence of evidence as follows:
[156] This matter has presented challenges in reaching an informed view of the likely effect of the grants due to the lack of evidence provided by both Muccan and Njamal. Given the limited evidence provided, I am not satisfied the effect of the acts is such that they must not be done. However, I am conscious the grant of these mining leases would afford Muccan significant rights. Given the uncertainties that exist regarding Muccan’s future activities, and the difficulties this creates in assessing their effect, I find it appropriate to make this determination subject to conditions.
[157] The Act affords the Tribunal broad discretion to impose conditions to be complied with by any of the parties, subject to certain statutory limitations. That discretion must be exercised by reference to the s 39 criteria and is controlled by the subject matter, scope and purpose of the Act (see Koara 1). Any conditions made subject to the determination take effect as if they were the terms of a contract among the negotiation parties (see s 41(1)). In reaching my decision, I have had regard to the Tribunal’s findings in Koara 1, Koara 2 and St Ives v Ngadju. In each of these matters the Tribunal was required to consider the s 39 criteria in the absence of a mining proposal. The Tribunal imposed conditions in each instance with the purpose of minimising the potential for deleterious effects on the native title party’s rights and interests.
[168] This case presents the opposite problem, in that Kallenia is very clear about the limited activity it intends to undertake. However, like Muccan 3, I am conscious that, in the absence of conditions, the rights afforded to Kallenia under the licence go far beyond the activity proposed.
Kallenia’s proposed conditions
[169] In both its contentions and reply, Kallenia indicated that it was prepared to agree to a determination that the act may be done subject to conditions, and proposed a number of conditions in each of Mr Richmond’s affidavits.
[170] Initially, Mr Richmond said in his June affidavit that Kallenia would be prepared to accept the following conditions:
a. Any right of the Native Title Party to access or use the land the subject of exploration licence 04/2428 is not to be restricted except in relation to those parts of the land which are used for exploration or for safety or security reasons related to those activities.
b. When, prior to commencing any exploration on exploration licence 04/2428, the Grantee Party submits a plan of proposed operations and measures to safeguard the environment or any addendums thereafter to the Government Party for assessment and written approval, the Grantee Party must at the same time give to the Native Title Party a copy of the proposal or addendums, excluding sensitive commercial data, and a plan showing the location of the proposed operations and related infrastructure, including proposed access routes.
c. The Grantee Party must comply with the Aboriginal Heritage Act 1972 (WA).
d. The Grantee Party must take all reasonable action to ensure compliance with these conditions by its employees, agents and contractors.
e. Upon assignment of exploration licence 04/2428, the assignee shall be bound by these conditions.
[171] In his August affidavit, Mr Richmond added that Kallenia would accept a condition that it only be permitted to exercise the rights under the Proposed Licence to the extent of carrying out an MT Survey.
[172] Neither the State nor Walalakoo made any comments on the conditions proposed by Kallenia.
Tribunal’s draft conditions
[173] During the course of my consideration of this matter, the Tribunal prepared and circulated to parties draft conditions which took account of the conditions proposed by Kallenia.
[174] Those draft conditions, which are Attachment 4 to these reasons, were provided to the parties for comment, in the event that I decided, as I have done, to make a determination that the act may be done on conditions.
[175] It is worth noting at this point that the draft conditions include definitions. Definitions were included in the early conditions imposed by the Tribunal (see for example Koara 2), but, as far as I am aware, have not been included in more recent determinations. The reason for that is not apparent, but I consider the definitions aid certainty, particularly given s 41(1), which provides that, assuming the licence is granted, the determination has effect (apart from any other effect) as if the conditions were terms of a contract among the negotiation parties - in this case, Walalakoo, Kallenia and the State.
[176] Kallenia has said that it will limit the MT Survey to the western side of the licence, to what appears to be less than half of the licence area. I have not referred to that area in the draft conditions because it is not specified with any geospatial certainty, but my decision is made on the basis that the MT Survey will not extend into the eastern half of the licence area as shown on Attachment 2.
[177] In my view, it would be preferable, to the extent possible, for the area of the grant to be reduced to the area proposed for the MT Survey, but that will be a matter for the State to consider.
[178] Kallenia did not provide any comment on the draft conditions but the State and Walalakoo did.
The State’s comments on the conditions
[179] The State provided contentions on the draft conditions on 15 October 2019. The State has two main objections to the conditions.
[180] Firstly, it objects to draft condition 5 which requires it to give written notice of the grant to Walalakoo within 21 days. The State says this is not something it would be required to do under the Mining Act and therefore contends the condition is an impermissible interference by the Tribunal in the performance of its duties and functions, and should not be imposed. I do not accept that contention. The State’s obligation under the proposed condition arises from this determination, not the Mining Act.
[181] The State also expresses concern about the precedent effect of such a condition given the thousands of applications made each year and says Walalakoo can assume the grant will be made following the appeal period and, in any event, can search its website to find out. All in all, the State says the condition will be of limited practical benefit or assistance to Walalakoo and any assistance is outweighed by the disruption to the State from the precedent that will be set.
[182] I don’t accept those arguments either. Only a small percentage of tenement applications end up being the subject of a future act determination application and, such a condition may not be required in all cases. In this case, Walalakoo holds exclusive native title to the licence area and is entitled to use the licence area as it wishes. It is reasonable for the State to notify Walalakoo that the grant has been made so it knows the extent to which, and from when, its rights are affected.
[183] Further, I note that a notice condition has been imposed previously, dating back to one of the Tribunal’s earliest determinations, the test case in Koara 2 in 1998, If the imposition of a condition requiring the State to give notice has not become commonplace since then, there is no reason to consider it will now.
[184] The second condition the State opposes is condition 9, which requires the State to make certain of this determination’s conditions, conditions of the licence when it is granted. Again, this is not without precedent. The determination in Koara 2 included a condition requiring conditions to be included in the licence (including an assignment condition similar to draft condition 7). I don’t find any of the State’s contentions on this point persuasive. My determination does not mandate that the State must grant the licence, but it does set out the basis upon which the grant will be valid under the NTA.
[185] The State says the s 58 statement makes the method of exploration clear and so a condition isn’t necessary. However, as I have outlined above at [49], the statement isn’t as clear as suggested. The clarity came from Mr Richmond’s August affidavit and his willingness to be subject to a condition to limit the scope of exploration.
[186] In this case, the limitation on the activities proposed by Kallenia is significant and somewhat unusual. It is saying that out of all the potential rights it would have under its proposed grant, it only wishes to undertake one form of non-invasive survey in part of the licence area.
[187] The State and Kallenia have both argued strongly that I should decide this matter on the basis that Kallenia intends to only undertake an MT Survey on part of the licence area. The State has argued that Walalakoo’s evidence should be disregarded because it does not adequately take account of the fact that the only activity will be an MT Survey, yet it is unwilling to include a condition on the licence to that effect.
[188] Having decided that the licence may be granted on the basis that Kallenia will only undertake the proposed MT Survey, I consider that there should be conditions imposed to mitigate the potential for deleterious effects on Walalakoo’s rights and interests.
[189] Taking account of the evidence of the exclusive native title and use of the area by Walalakoo in this case, and the proximity of the proposed activities to particularly significant sites, I consider that the stated limitation on Kallenia’s proposed activities warrants a condition on the licence itself. I am also conscious that there is evidence of a difficult history between the parties and certainty as to the scope of rights in the future is important. Kallenia agrees to the condition and so it seems appropriate. It does not follow that conditions on the licence would be required in all cases.
[190] For the same reason, I consider that the use of ground disturbing equipment should be prohibited. The State points out that s 63AA of the Mining Act imposes a statutory condition requiring approval of a program of works before such equipment could be used, which I think may be intended to be a reference to s 63. Having regard to the activities proposed by Kallenia, that is an approval which should never arise and including draft condition 2 on the licence should provide that certainty.
Walalakoo’s comments on the draft conditions
[191] Walalakoo raises concerns about whether Kallenia will comply with any conditions and says that a heritage protection agreement should be required on terms acceptable to Walalakoo. It also says Kallenia should be required to provide specific details of what is proposed and where, which I note is what draft condition 6 requires.
[192] The parties have had considerable time to negotiate an agreement if one could be reached. As observed in Evans v Western Australia (referred to above), it is now for the Tribunal to determine the issues between the parties. Kallenia is of course bound by the Aboriginal Heritage Act 1972 (WA), which is why I have not included the condition proposed by Kallenia to that effect. The licence will include a condition limiting the permitted activities to the MT Survey proposed by Kallenia. I do not consider that including a requirement for a heritage protection agreement satisfactory to Walalakoo would meet the requirement for certainty needed when imposing conditions.
[193] Walalakoo comments that draft condition 4 is an unreasonable limitation because its access should not be restricted ‘for exploration purposes or for safety or security reasons’ if Kallenia is only entitled to conduct a magnetotellurics survey. Given that Kallenia is only permitted to conduct the MT Survey that is the only exploration purpose to which draft condition 4 would apply.
[194] However, for clarity, taking account of the point raised, I have made a slight amendment to condition 4 to clarify that the limitation only applies to the extent of the rights which Kallenia may exercise in accordance with condition 1.
[195] Walalakoo says that it recognises the intent of draft condition 7 regarding assignment but doesn’t think it will be effective as the conditions will only take effect as a contract and the assignee would not be bound. Walalakoo does not seem to have taken account of the fact that draft condition 9 requires condition 7 to be included as a condition of the licence, which addresses this concern.
[196] Walalakoo contends that the period of notice in draft condition 6 is unreasonable given the affected common law holders are based in remote communities between Broome and Fitzroy Crossing. Walalakoo says that they are entitled to a detailed briefing three months’ in advance which would also allow for the rearrangement of cultural activities as appropriate. Walalakoo also says that the fact it required more time to consider the draft conditions illustrates the difficulties with remoteness.
[197] I accept that 7 days’ notice may be inadequate in the circumstances but a period of three months for notice seems too long, given the limited activities permitted and their location on the western side of the licence away from the areas shown to be of most concern to Walalakoo. The conditions now provide for 30 days’ notice to be given by Kallenia.
[198] Walalakoo also contends that, due to competing demands on its time, Kallenia should not proceed without first receiving an acknowledgment from them. However, if acknowledgement was not forthcoming, that would arguably give Walalakoo an effective veto on the exercise of Kallenia’s rights under the licence, which is not appropriate. Walalakoo will need to consider the notice within the time allowed.
Determination
[199] I determine that the grant of exploration licence 04/2428 to Kallenia Mines Pty Ltd may be done subject to the conditions set out in Attachment 5.
Nerida Cooley
Member
4 November 2019
attachment 1
attachment 2
attachment 3
ATTACHMENT 4
WF2019/0001 Draft Conditions for Consultation
Scope of exploration activities
The grantee party may exercise its rights under the licence only to the extent of carrying out a magnetotellurics survey.
The grantee party must not use any ground disturbing equipment on the licence area.
Access
The grantee party must access the licence area from the western boundary of the licence.
The grantee party must not restrict or interfere with the native title rights and interests of the native title party and Nyikina Mangala people to possess, occupy use and enjoy the licence area, except in relation to those parts of the licence area used for exploration purposes or for safety or security reasons relating to those activities.
Notice
The Government party must give the native title party written notice of the grant of the licence, including the conditions and endorsements, within 21 days of the date of grant.
Prior to carrying out the whole or part of any magnetotellurics survey on the licence area, the grantee party must give the native title party at least 7 days written notice, including:
(a) the date or dates of commencement and duration of the survey;
(b) details of the activities to be carried out; and
(c) a map of the proposed location of the survey and the proposed access route.
Assignment
The grantee party must not assign the licence unless and until the assignee executes and delivers to the native title party a deed expressed to be for the benefit of the native title party by which the assignee undertakes to be bound by these conditions as if it were the grantee party. In the case of an assignment consisting of the entering into of a mortgage, charge or other security, the deed must provide that the assignee undertakes:
(a) to be bound by these conditions as if it were the grantee party, if it or anyone on its behalf enters into possession of the licence, or if it appoints a receiver to enter into possession of the licence; and
(b) not to transfer the licence under any power of sale unless the purchaser executes a deed expressed to be for the benefit of the native title party by which the purchaser undertakes to be bound by these conditions as if it were the grantee party.
For the purpose of condition 7, 'grantee party' includes any assignee.
General
The Government party must make each of conditions 1, 2, 3, and 7 a condition of the licence.
10. The grantee party must take all reasonable steps to ensure compliance with these conditions by its employees, agents and contractors.
11. Notices or other communications provided to the native title party under these conditions may be sent to the address below, or such other address as advised by the native title party.
[Details to be inserted]
Definitions
12. For the purpose of these conditions the following terms have the following meanings:
assign includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession; assignment and assignee have corresponding meanings
land has the meaning given in the Mining Act
licence means exploration licence 04/2428, once granted under the Mining Act.
licence area means the land the subject of the licence
Government party means State of Western Australia
ground disturbing equipment has the meaning given in the Mining Act.
grantee party means Kallenia Mines Pty Ltd
Mining Act means the Mining Act 1978 (WA);
magnetotellurics survey means a survey using an electromagnetic geophysical method to infer the earth’s subsurface electrical properties from measurements of natural electric and magnetic field variations at earth’s surface.
native title party means Walalakoo Aboriginal Corporation RNTBC (ICN 8041)
ATTACHMENT 5
Conditions
Scope of exploration activities
The grantee party may exercise its rights under the licence only to the extent of carrying out a magnetotellurics survey.
The grantee party must not use any ground disturbing equipment on the licence area.
Access
The grantee party must access the licence area from the western boundary of the licence.
The grantee party must not restrict or interfere with the native title rights and interests of the native title party and Nyikina Mangala people to possess, occupy use and enjoy the licence area, except to the extent of the survey referred to in condition 1 or for safety or security reasons relating to that survey.
Notice
The Government party must give the native title party written notice of the grant of the licence, including the conditions and endorsements, within 21 days of the date of grant.
Prior to carrying out the whole or part of any magnetotellurics survey on the licence area, the grantee party must give the native title party at least 30 days written notice, including:
(a) the date or dates of commencement and duration of the survey;
(b) details of the activities to be carried out; and
(c) a map of the proposed location of the survey and the proposed access route.
Assignment
The grantee party must not assign the licence unless and until the assignee executes and delivers to the native title party a deed expressed to be for the benefit of the native title party by which the assignee undertakes to be bound by these conditions as if it were the grantee party. In the case of an assignment consisting of the entering into of a mortgage, charge or other security, the deed must provide that the assignee undertakes:
(a) to be bound by these conditions as if it were the grantee party, if it or anyone on its behalf enters into possession of the licence, or if it appoints a receiver to enter into possession of the licence; and
(b) not to transfer the licence under any power of sale unless the purchaser executes a deed expressed to be for the benefit of the native title party by which the purchaser undertakes to be bound by these conditions as if it were the grantee party.
For the purpose of condition 7, 'grantee party' includes any assignee.
General
The Government party must make each of conditions 1, 2, 3, and 7 a condition of the licence.
10. The grantee party must take all reasonable steps to ensure compliance with these conditions by its employees, agents and contractors.
11. Notices or other communications provided to the native title party under these conditions may be sent to the address below, or such other address as advised by the native title party by email and post.
Damien Parriman, CEO
E: [email protected]
M: PO BOX 1115, Derby, WA, 6728
Definitions
12. For the purpose of these conditions the following terms have the following meanings:
assign includes sell, transfer, part with possession, create a legal interest in or otherwise dispose of in whole or in part, or enter into any mortgage, charge, or other security under which the mortgagee, chargee, or other secured creditor has powers to take possession, sell, convey or to appoint a receiver to take possession; assignment and assignee have corresponding meanings
land has the meaning given in the Mining Act
licence means exploration licence 04/2428, once granted under the Mining Act.
licence area means the land the subject of the licence
Government party means State of Western Australia
ground disturbing equipment has the meaning given in the Mining Act.
grantee party means Kallenia Mines Pty Ltd
Mining Act means the Mining Act 1978 (WA);
magnetotellurics survey means a survey using an electromagnetic geophysical method to infer the earth’s subsurface electrical properties from measurements of natural electric and magnetic field variations at earth’s surface.
native title party means Walalakoo Aboriginal Corporation RNTBC (ICN 8041)
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