Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Hard Rock Resources Pty Ltd
[2016] NNTTA 5
•22 January 2016
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Hard Rock Resources Pty Ltd and Another [2016] NNTTA 5 (22 January 2016)
Application No: WO2014/0354
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WCD2011/002) (native title party)
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The State of Western Australia (Government party)
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Hard Rock Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: H Shurven, Member
Place: Perth
Date: 22 January 2016
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters – expedited procedure is not attracted
Legislation:Native Title Act 1993 (Cth) ss 31, 237
Mining Act 1978 (WA) s 66
Mining Regulations 1981 (WA) reg 20
Aboriginal Heritage Act 1972 (WA) ss 4, 5, 18
Cases:Barunga v State of Western Australia [2011] FCA 518
Bruce Monadee & Ors (Ngarluma Indjibarndi) and Wilfred Hicks (Wong-goo-tt-oo)/Western Australia/Cossack Resources [2003] NNTTA 38 (‘Ngarluma Indjibarndi v Cossack’)
Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG v Yindjibarndi’)
Silver and Others v Northern Territory and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
Tullock v Western Australia (2011) 257 FLR 320 [2011] NNTTA 22 (‘Tullock v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representatives of the Ms Danica Trewern, Kimberley Land Council
native title party: Mr Eldon Stone, Kimberley Land Council
Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office
Government party: Mr Michael McMahon, Department of Mines and Petroleum
Representative of the
Grantee party: Mr Brett Anderson, Anderson’s Tenement Management
REASONS FOR DETERMINATION
This decision considers whether the State Government of Western Australia (‘the State’) can grant exploration licence E04/2269 (‘the licence’) to Hard Rock Resources Pty Ltd (‘Hard Rock’). The public notice issued for the licence included a statement that the State considers the act of granting the licence is one which attracts the expedited procedure. That is, the State asserts negotiating parties need not negotiate in good faith with a view to obtaining the agreement of relevant native title parties to the grant of the licence. The licence is located 118 kilometres north of Derby in the shire of Derby-West Kimberley, and is approximately 121 square kilometres in size.
The Wanjina-Wunggurr (Native Title) Aboriginal Corporation (‘the Corporation’), on behalf of its members, lodged an objection with the National Native Title Tribunal (‘the Tribunal’) against the assertion of the expedited procedure on this licence. The Corporation holds in trust the native title rights and interests of the Wanjina-Wunggurr people (‘the Community’), whose membership is comprised of the Wunambal Gaambera people, the Ngarinyin people and the Worrorra people. The traditional land and waters of the Community (‘the Wanjina-Wunggurr Area’) includes the Dambimangari area, the Wilinggin area and the Uunguu area. The Community are the determined native title holders of an area which overlaps approximately 113 square kilometres of the exploration licence (see Barunga v State of Western Australia). Approximately 78 square kilometres of the licence has been determined as exclusive native title, 22 square kilometres as non exclusive native title, and 12 square kilometres as native title does not exist.
An objection against the assertion of the expedited procedure was also lodged by the Mayala native title claimants, whose claim overlaps approximately 8 square kilometres of the licence. Tribunal records indicate the Mayala objection was withdrawn in July 2015 as an agreement was reached with relevant parties. While the Tribunal is not privy to the terms of the agreement, the State has confirmed that on grant, the portion of overlap between the licence and the Mayala native title claim will be excised.
To answer the question of whether the grant can be made in an expedited way, I was appointed by the Tribunal President, Raelene Webb QC, to be the Member conducting the inquiry. I provided parties with a copy of a map produced by the Tribunal’s Geospatial Unit to be used in the inquiry. No party objected to its use.
A decision that the expedited procedure does apply to the grant means Hard Rock can proceed to explore on the licence without the State or Hard Rock negotiating with the Community. A decision that the expedited procedure does not apply means the State and Hard Rock must negotiate and attempt to come to an agreement with the Community prior to the grant. Those negotiations may be done with or without the assistance of the Tribunal.
I issued directions to assist the inquiry proceedings. Hard Rock advised they would rely on the submissions of the State. Both the State and the Corporation provided statements of contentions. In addition, the Corporation provided: the affidavit of Mr Ruby Mouda, who states he is a 'Traditional Owner for the Dambimangari People' through his father; and the affidavit of Mr Paddy Neowarra, a senior elder or ‘Law Man’ for all of the Wanjina People from his father and grandfather. Mr Neowarra states he has the right as a traditional owner to speak for this country, as he comes from Ngarinyin and is related to this line from the Wanju Kinship. Annexed to both Mr Mouda’s and Mr Neowarra’s affidavits are maps showing the exploration licence and surrounding areas, with some pen markings made by Mr Mouda and Mr Neowarra respectively, which are referred to in their affidavits. I accept the authority of both Mr Mouda and Mr Neowarra to speak for the area of the licence.
The Corporation, on behalf of the Community, argue the grant of the licence is likely to be the proximate cause of substantial interference with the social or community activities carried on in the area by the Community (see s 237(a) of the Native Title Act1993 (Cth) ('the Act')). They also assert the grant of the licence will directly interfere with areas or sites of particular significance to the Community (see s 237(b) of the Act).
I must also inquire into whether the grant will be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned (see s 237(c) of the Act). However, the Corporation does not contend the grant of the licence is likely to involve, or create such rights. Based on the evidence before me, I find the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
On the basis of the submissions and evidence provided by the parties, I address the following issues in this decision to determine whether or not the expedited procedure should apply to the grant:
a)Will the grant interfere directly with the carrying on of community or social activities of the Community?
i.What community or social activities are undertaken by the Community and where do they take place?
ii.Are there any other interests which have already interfered with these activities?
iii.What are Hard Rock’s proposed activities?
iv.Is the grant of the licence likely to substantially interfere directly with community or social activities?
b)Will the grant interfere with areas or sites of particular significance to the Community?
i.What areas or sites are identified?
ii.Are any of these areas or sites of particular significance?
iii.Is there a real risk of interference to sites of particular significance?
a) Will the grant interfere directly with the carrying on of community or social activities of the Community?
In considering this issue, I note the following principles:
·The community and social activities must arise from registered native title rights and interests (see Tullock v Western Australia at [93]–[102]).
·The term ‘social activities’ can encompass activities carried on by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (see Silver v Northern Territory at [60]).
·The inquiry under s 237(a) is contextual, and I may have regard to other factors that might constrain the native title party’s community or social activities (see Smith v Western Australia at [23]–[27]).
What community or social activities are undertaken by the Community and where do they take place?
Mr Mouda and Mr Neowarra both depose that members of the Community hunt, fish and camp on the licence area, and provide the following examples:
·Members of the Community fish and hunt on the west side of the licence and were the caretakers for this area of coastline. Kangaroo is hunted all along the coast on this side (Mr Neowarra affidavit at 7);
·Turtle and all kinds of fish were caught along the coast in the west of the licence, using mangrove rifts built in the area (Mr Neowarra affidavit at 7);
·Hunting has also been undertaken in the Wooluguga area within the last six months, by the ‘Umba guys’ and ‘Woolugagas’ (I do note it is not clear from the evidence or contentions exactly where this area is) (Mr Neowarra affidavit at 7).
·People check the number of turtles and check for turtle eggs and ‘hunt everything around there’ (Mr Neowarra affidavit at 7);
·Larlarum is the main camping place located near Jorjorgud Passage, around the Yeewoodu area (in the area of Chambers Island which is in the south west of the licence). People would travel there by boat to camp, exchange shells for food and the get sugarbag and oyster (Mr Mouda affidavit at 7); and
·Barramundi, salmon and turtle are found in the licence all year round ‘but the turtles are especially fat in winter’ (Mr Mouda affidavit at 8).
The Corporation’s contentions (at 26) also state the affidavit evidence supports the conclusion that the Community create hunting weapons and tools on the licence area, however, this does not appear in the affidavits. The Corporation's contentions outline that another relevant matter for consideration is whether the licence area is ‘relatively rich in bush foods and medicines’ and the impact of the grant of the licence on the carrying out of the collection of bush foods and medicine (citing Ngarluma Injibarndi v Cossack (at [28])). Mr Neowarra notes that medicines, including the Togara (cabbage palm), are collected at One Arm Point (at 10). However, I note the commonly known geographical location of One Arm Point is approximately 55 kilometres south west from the licence area. There is no evidence there is another site so named on or closer to the licence in this matter. As such, I have not had regard to this cabbage palm collection activity, which also appears to be outside of the determined native title claim for the Community if it occurs at the commonly known location of One Arm Point. From Mr Mouda's affidavit (at 7 for example), he outlines how he and others would travel to areas on the licence (such as Lalarum and Jorjorgud Passage, near the Yeediwoodu Department of Aboriginal Affairs (‘DAA’) registered site) by boat from One Armed Point.
Sites recorded with the DAA can be characterised in two main ways. Firstly, as a Registered Site, which means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’). Secondly, as an Other Heritage Place, which includes sites or places which have been assessed as not meeting s 5, and places where information has been received in relation to the place but an assessment has not been completed to determine if it meets s 5. More detailed information on registered and other heritage place's on the licence is outlined at [33] of this decision.
I may only have regard to activities which are manifestations of claimed or determined native title rights and interests (see Silver v Northern Territory at [58]). In this inquiry, the relevant registered native title rights and interests are the right to: hunt, gather and fish; take flora and fauna; take, share and exchange other natural resources; engage in cultural activities including the transmission of cultural heritage knowledge; conduct ceremonies; hold meetings; visit, maintain and protect from physical harm, places and sites of importance; and access and take water and its resources. I accept the activities identified by Mr Mouda and Mr Neowarra are consistent with these rights and interests.
The State contentions argue (at 17-19) that evidence is not provided of contemporary community and social activities being conducted, drawing particular attention to sections of Mr Mouda’s affidavit which details activities undertaken approximately 55 years ago. The State also point out that Mr Mouda does not provide specific evidence as to the last time he camped at One Arm Point, or participated in fishing on the licence, or whether the area of One Arm Point referred to is inside or outside the licence.
In relation to the affidavit of Mr Neowarra, the State notes the evidence refers to others conducting community and social activities on the licence, not Mr Neowarra himself. The State argues, in the absence of evidence from those participating in the activities, the Tribunal should give Mr Neowarra’s statement limited weight (at 21). However, I note Mr Neowarra consistently refers to 'we' in terms of those activities, by which I reasonably conclude he includes himself and others.
The State also refers to Mr Neowarra’s evidence regarding the collection of bush medicines at One Arm point. The State notes that Mr Neowarra does not specify whether the collection of bush medicine occurs in the area of One Arm Point located within, or outside, the licence (at 23). As noted above, without further evidence as to the extent of the area known by the Community as 'One Armed Point', I am not satisfied the activity stated to be at One Armed Point is also activity which occurs within the licence, which is some 55 kilometres from the geographical location commonly known as One Armed Point.
I do accept the Community access the licence area for the purpose of hunting, camping and fishing. I note, however, limited evidence has been provided in relation to who conducts the activities and how frequently the activities are conducted on the actual licence, apart from in general terms and an indication some activity has occurred in the 6 months prior to when the affidavits were sworn. In Ngarluma Injibarndi v Cossack, cited by the Corporation in support of their contentions, the native title party gave evidence the licence area was easy to reach, by whom, and that it was accessed regularly by the aboriginal community. The licence in that matter was approximately 1.55 hectares in size, whereas the licence in the current matter is approximately 12150 hectares. As such, in the current matter, there is a much larger area upon which social or community activities such as hunting, camping and fishing can be conducted.
Are there any other interests which have already interfered with these activities?
I must take into account other lawful activities which are likely to have already impacted on the community or social activities. The exploration licence is overlapped by approximately 11 per cent vacant crown land and a number of minor non-perennial watercourses and spring/soak/rockhole/waterhole areas. The licence has been subject to previous exploration from 1993 to 2012, with the previously granted licences overlapping between 1.6 to 86.5 per cent.
The State points to the previous exploration activity on the licence and notes that four granted exploration licences have overlapped the licence between 45 and 86.5 per cent (at 9). The State contentions assert that hunting, fishing and mineral activity are ‘by their nature, inherently capable of coexistence’ with exploration activities, particularly where there is a history of exploration and no evidence to show interference with community or social activities has resulted from this exploration (at 25). The State argues that based on the previous exploration and lack of evidence of interference, it can be concluded the activities of Hard Rock are unlikely to interfere with the community and social activities of the Community.
The licence is also overlapped at 15.9 per cent by a reserve for the Yampi Port Area, and 54.9 per cent by reserve land managed by the Aboriginal Affairs Planning Authority which is designated for the Use and Benefit of Aboriginal Inhabitants. The latter reserve area extends roughly from the north west corner of the licence, extending diagonally through to the south – south east of the licence. I assume that reserve would have provided protection to the interests of the Community and prevented interference with their activities in the reserve area, including any exploration licences that were granted over the area. The State proposes to attach a number of conditions to the grant of the licence, as outlined in its Tenement Endorsements and Conditions Extract (see Appendix A), together with this condition:
This tenement covers both “Use and benefit of Aborigines area 30674” and “YAMPI Port Defence Area 50387”. Prior written consent is required from both the Minister for DAA and the Minister for Transport before commencing any exploration activities over those areas.
What are Hard Rock’s proposed activities?
Hard Rock have not provided any contentions or evidence regarding their proposed activities and have indicated they wish to rely on the submissions of the State. In the absence of submissions from Hard Rock, I am entitled to consider they will exercise the full suite of rights which result from the grant of the licence. These include: digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose; and excavating, extracting or removing such land, earth, soil, rock, stone, fluid or mineral bearing substances up to the prescribed amount of 1,000 tonnes (see Mining Act 1978 (WA), s 66; Mining Regulations 1981 (WA), reg 20). The Hard Rock Program of Work and Expenditure, provided to the Tribunal and parties by the State as part of the State's contentions, indicates that in Years 3, 4 and 5 there will be Rotary Air Blasting drilling (RAB) of 150 metres each year. There is no indication of where the drilling is likely to take place. Hard Rock indicates it will be exploring for 'viable iron ore and/or base metals deposit'.
Is the grant of the licence likely to substantially interfere directly with community or social activities?
I must consider the activities currently being undertaken in the licence by the Community and weigh these against the activities Hard Rock is likely to undertake if the licence is granted. Mr Mouda and Mr Neowarra have provided evidence of camping, fishing, hunting and the collection of bush tucker in the licence area. Particular emphasis is placed on the activities undertaken on the west side of the licence and in the Wooluguga and Chambers Island area. However, what is not clear from the evidence is the frequency of visits or the number of community members involved.
What is also not clear is whether any of these activities are unique or restricted to this area, or if they are able to take place elsewhere in the Wanjina-Wunggurr Area. The determination area where native title exists is just over 20,000 square kilometres in size and the area of the licence is approximately 121 square kilometres. While I acknowledge the Community have provided evidence they carry out specific activities on the licence, such as camping, fishing, hunting and collecting bush tucker, they have provided no evidence to indicate the activities could not be carried out elsewhere in their determined area.
The State argues the Corporation has not provided evidence of contemporary activities on the licence. I agree the evidence does not provide sufficient specificity of the frequency and duration of community or social activities undertaken on the licence. Information as to the frequency and duration of the activities, which is within the particular knowledge of the Community, would allow me to assess the likelihood of the activities of Hard Rock interfering with the ability of the Community to carry out their community or social activities.
In the circumstances, I must assume in the absence of evidence from the Community to demonstrate otherwise, the duration and frequency of the visits to the licence area is such that the activities of Hard Rock are unlikely to directly or substantially interfere with the carrying out of community or social activities on the licence.
b) Will the grant interfere with areas or sites of particular significance to the Community?
With respect to issues arising under s 237(b) of the Act, I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources).
·The interference contemplated by s 237(b) must be evaluated in the context of the particular area or site and the laws and customs in relation to that area or site (see FMG Pilbara v Yindjibarndi Aboriginal Corporation at [79]; Silver v Northern Territory at [88]).
·To be of particular significance, the site or area must be capable of being identified and its significance explained (Silverv Northern Territory at [91]).
What areas or sites are identified?
Section 237(b) of the Act requires me to conduct my assessment in two stages. First, I must ascertain if there are any areas or sites of particular - that is, more than ordinary - significance to the Community, in accordance with their traditions, within the licence. If I answer this in the affirmative, I am then required to consider whether there is likely to be (in the sense of a real risk of) interference with those areas or sites.
In his affidavit, Mr Mouda identifies the burial site of a male relative on Chambers Island in the area of Jorjorgud, located in the south west corner of the licence. Mr Mouda states that his male relative was ‘buried traditional way covered with stones, above ground. When people die they go back to where they came from’ and this is why the relative is buried on Chambers Island. Mr Mouda attests to the importance of keeping this area undisturbed so his relative can be left to rest and discusses the pain associated with talking about this old story (at 10).
Both Mr Mouda and Mr Neowarra have labelled a burial site in this area on maps annexed to their respective affidavits. Mr Mouda also identifies the burial site of a female relative at the Watjelum landing area and calls this another special place. The Corporation’s contentions state both these burial sites 'are located within registered site 12135 Yeediwoodu'. However, it appears it is only the male relative burial site which is at Yeediwoodu, and the female relative burial site is to the north east of the licence, according to the markings on the maps provided with the affidavits. I accept the affidavit evidence on this point rather than the Corporation's contentions.
Mr Neowarra identifies a number of areas and sites on the east side of the licence which he says should not be accessed. Mr Neowarra describes: burial sites and caves where bones and graves are contained; a men’s initiation site (Wullangaddi), also accessed by the Fitzroy People; and paintings and stone arrangements (at 8). Mr Neowarra states that shell fish mounds left by ancestors can be found in the north east of the licence. Mr Neowarra asserts these shell fish mounds were made by their ancestors thousands of years ago and cannot be disturbed (at 9).
Later in his affidavit, Mr Neowarra states ‘when we got to these areas we sing out, or smoke the area, the spirit might be on you. You may receive a sign like a whistle or a rock, these are sacred places. When people leave you have to smoke it’ (at 11). It appears Mr Neowarra is referring to all of the areas to the east discussed in his affidavit and not one place in the east particular.
The State has provided results from the DAA Aboriginal sites database for registered sites and heritage places within the licence. The results show the following four Registered Sites and four Other Heritage Places within the licence - none of them have gender restrictions noted, suggesting none of these are the men’s initiation site referred to by Mr Neowarra:
Registered sites
·Cholemma – Site ID 12133 – Artefacts/Scatter
·Yeediwoodu – Site ID 12135 – Camp
·Watjelum Mission – Site ID 12184 – Camp
·Watjelum – Site ID 13626 – Midden/Scatter, Quarry, Camp
Other Heritage Places
·Yampi Peninsula – ID 12134 - Camp
·Goose Channel – ID 12182 – Camp
·Coppermine Creek – ID 12183 – Midden/Scatter, Camp
·Mundurral Bay – ID 12185 – Camp
A Registered Site recorded with the DAA means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (WA) (‘the AHA’). The AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. A site of particular significance need not be recorded on the DAA register; however, the register can help to provide additional or supporting information when the affidavit evidence alone is limited or general in nature.
The State’s contentions suggest none of the Other Heritage Places, nor the Cholemma and Watjelum Mission registered sites are referred to in the Corporation’s contentions. However, I note Mr Mouda's affidavit does refer to a special track running from Numoolba to Watjelum Mission. Although the area named Numoolba is not specifically marked on the map attached to Mr Mouda’s affidavit, it is marked on Mr Neowarra’s map, south of the Watjelum Mission in the east of the licence area. The Yeediwoodu site is referred to by Mr Mouda when discussing camping activities, and contentions indicate that site is on or near the male relative burial site.
The Watjelum Mission site (12184) is in the central eastern portion of the licence, and the Watjelum site (13626) is one which covers all but the south western, and a small section of the north, portions of the licence. That is, the Watjelum site covers nearly all of the licence. It is noted on the DAA Register as a midden/scatter/artefact site. Both affidavits refer to the fact there are many places on the licence area which are 'very important' and which should not be accessed, particularly on the east side of the licence. The female burial site appears to be within Watjelum at a particular 'landing area' where boats came, and there are, according to Mr Neowarra, many burial sites and caves including one where men's initiations are carried out (Wullangaddi). There are also paintings and stone arrangements, and shell fish mounds put there by ancestors. Wullangaddi, a men’s initiation site, is not specifically identified on the maps, but both Mr Neowarra and Mr Mouda have circled areas on the east portion of the licence as being important areas.
Are any of these areas or sites of particular significance?
I must decide whether any of the sites or areas identified in the contentions and evidence are of particular significance to the Community in accordance with their traditions. This question is a precondition for inquiring whether the grant of the licence is likely to cause interference with areas or sites of this kind (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [125]).
Mr Neowarra put forward evidence in relation to a number of places in the east of the licence including: caves; a men’s initiation site (Wullangaddi); paintings; stone arrangements; and shell fish mounds. Mr Neowarra notes the male initiation custom is also practiced by the Fitzroy People and that the caves and tracks were checked last year. In relation to the shell fish mounds, Mr Neowarra describes them as being left by ancestors thousands of years ago. The exact location of each site referred to in both affidavits is unclear, apart from the male and female burial site referred to by Mr Mouda (as outlined earlier in this decision), although both affidavits have circled similar areas in the north east of the licence (to the north of the Watjelum Mission site) as being of special significance.
Both relatives were stated to have been buried in the traditional way, and this way is described. The areas of the burials are marked. The male relative is within the Other Heritage Place Yeediwoodu, recorded by DAA. I conclude this is an area of particular significance to the Community. The female relative is buried to the north of Watjelum Mission, where there is said to be other burial sites, and in the vicinity of a men's initiation site (Wullangaddi), with paintings, stone arrangements and ancestral shellfish mounds also in the vicinity. This may explain why the Watjelum site itself has been registered with the DAA, and which covers most of the area of the licence. Any one of these features on its own would not necessarily be sufficient for me to conclude the area to the north and east of Watjelum Mission was an area of particular significance. However, all the features as described in these two affidavits, together with the consistent markings on both maps, suggests to me this is an area of special, or more than just ordinary significance, to the Community.
Is there a real risk of interference to areas or sites of particular significance?
Two reserves, one for the Use and Benefit of Aborigines and one for the Yampi Port area, overlap the licence at 70.8 percent in total (as outlined at [21]), covering all but the south west portion of the licence. The two sites of particular significance (the burial at Yeediwoodu registered site and the area to the north east of Watjelum Mission) fall within the reserve area. The State intends to impose a condition on the grant of the licence requiring the prior written consent of the Minister responsible for the Mining Act before Hard Rock may commence any exploration activities in the area covered by the reserves.
As noted earlier in this decision, Hard Rock has not provided any submissions in relation to the activities they intend to undertake on the licence and/or the likely location of these activities. As a result I assume they will exercise the full rights entitled under the grant (as outlined at [22] of this decision).
Both Mr Mouda and Mr Neowarra have expressed a need for consultation with Hard Rock, including heritage surveys, to protect the ‘special places’ on the licence. Mr Neowarra states that without heritage surveys conducted by people who know the law and country, people may be injured after accessing areas without permission. Mr Neowarra relates a story about a woman who became unwell after going to an area without permission and described her recovery after the area was smoked and certain rituals performed. While Mr Neowarra appears to have been personally involved in this event, there is little detail and so I afford this part of the evidence limited weight. However, it does go to the fact that the Community regard this area as particularly important to them in the context of their traditions, and native title rights and interests, to ensure the right person has access to various areas to the north east of Watjelum Mission.
In response to the concerns expressed by Mr Mouda and Mr Neowarra, the State point out that five heritage surveys have been conducted over the licence. However, apart from information in the State's Quick Appraisal document which indicates these surveys overlapped the licence at between 32.1 and 67.5 per cent, there is no further information about when these surveys were conducted or by whom. The State notes that whilst the AHA does not contain an explicit requirement to consult with a native title party, the AHA requires Hard Rock to consult with the Community regarding any s 18 permit applications (at 37). The State also advises a condition will be placed on grant requiring Hard Rock to execute a Regional Standard Heritage Agreement (RSHA) in favour of Wanjina-Wunggurr (Native Title) Aboriginal Corporation, as holder of the determined native title rights for the Community, if requested not more than ninety days after the grant of the licence. The State contends this RSHA condition will further assist in protecting sites and areas of significance to the Community.
I note the area around the burial site of the male relative is a mix of exclusive and non exclusive native title rights and interests, as determined by the Federal Court. The other area which I have concluded to be of particular significance (to the north east of Watjelum Mission) is a mix of exclusive native title rights and interests, and where native title has been determined not to exist. My jurisdiction is only over that portion of the licence where native title has been determined to exist. The fact that native title has been determined to exist exclusively on part of the licence where there is an area of particular significance, has much weight in my decision.
The State relies on the AHA to provide sufficient protection against interference with sites or areas of particular significance to the Community. The State argues (at 35-36) the Corporation has not identified which sites of particular significance they believe do not fall under the protection of the AHA or the activities to be undertaken by Hard Rock which are outside of the definition of ‘interference’ in the AHA. I believe the sites of particular significance that may be interfered with have been identified, and have outlined above those areas I conclude are of particular significance. The Corporation’s contentions state the current heritage protection regime is not sufficient to protect the areas identified by Mr Mouda and Mr Neowarra in their affidavits.
Hard Rock is on notice about the existence of the burial site which the Corporation states is on the Yeediwoodu site currently on the DAA Register. I am satisfied the regulatory regime associated with the AHA will be sufficient to prevent interference with that site as it is relatively able to be identified from the co-ordinates of the DAA register. Hard Rock will not be able to rely on the defence in s 62 of the AHA that it did not know or could not reasonably be expected to have known of the existence of an Aboriginal site on that area.
However, in relation to the area of particular significance to the north east of Watjelum Mission, of which a portion is on exclusive native title held by the Community, and which appears to contain a burial site as well as other features of traditional importance to those people, I do not believe the regulatory regime will provide sufficient protection. While little is known about the proposed activities of Hard Rock, it is known from the State's submission that Hard Rock intend to do drilling in years 3, 4 and 5 of their work program. In the absence of further information from Hard Rock regarding their intended activities on the licence, and the location of these activities, I conclude there is a real chance or risk of interference with this area of particular significance.
Both deponents in some way have outlined the particular significance of the area to traditional law and custom. The Community have stated the need for heritage surveys and consultation with Hard Rock to avoid interference with special places in the licence area, particularly to the north east of Watjelum Mission. Due to the particular significance of that area, the regulatory regime including the RSHA relied upon by the State or the regime applied to the Reserves is unlikely to be sufficient to avoid interference. Based on a weighing of the evidence provided, I find that without the normal negotiations of s 31 of the Act, there is a real risk of interference to that area.
Conclusion
The community or social activities carried on within the licence area have been described, and I am not satisfied the grant of the licence is likely to directly or substantially interfere with these activities. Sites and areas of particular significance exist on the licence, and I am satisfied the grant of the licence is likely to interfere with one of these areas as explained above. There is no evidence the grant of the licence, or the exercise of any rights created by the grant, is likely to involve major disturbance to the land or waters concerned.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2269 to Hard Rock Resources Pty Ltd, is not an act attracting the expedited procedure.
Helen Shurven
Member
22 January 2016
APPENDIX A: Draft Tenement Endorsement and Conditions Extract
ENDORSEMENTS
The Licensee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
The Licensee's attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
The Licensee attention is drawn to the provisions of the:
·Waterways Conservation Act, 1976
·Rights in Water and Irrigation Act, 1914
·Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·Country Areas Water Supply Act, 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway, and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
CONDITIONS
The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use & Benefit Of Aborigines Reserve 30674, Yampi Port Area Reserve 50387 and the foreshore, seabed and navigable waters.
All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
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