Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Faurex Pty Ltd & Michael Morawa

[2011] NNTTA 86

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Faurex Pty Ltd & Michael Morawa, [2011] NNTTA 86 (19 May 2011)

Application No:                    WO10/1140

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Wanjina-Wunggurr (Native Title) Aboriginal Corporation – (WC99/11) (Applicant / native title party)

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The State of Western Australia (Government party)

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Faurex Pty Ltd & Michael Morawa (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:   Helen Shurven, Member
Place:   Perth
Date:     19 May 2011

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 cause major disturbance to land or waters – expedited procedure not attracted.

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109(3), 151(2), 237

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

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, [2007] NNTTA 15

Hughes v State of Western Australia and Anor, (2003) 182 FLR 362; [2003] NNTTA 69

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, [2006] NNTTA 65

Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, [2008] NNTTA 108

Parker on behalf of Martu Idja Banyjima People v State of Western Australia, [2007] FCA 1027

Parker v State of Western Australia, (2008) 167 FCR 340; (2008) 101 ALD 28; (2008) 245 ALR 436; [2008] FCAFC 23

Walley v Western Australia, (2002) 169 FLR 437; [2002] NNTTA 24

Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30

Hearing date:                  Determined on the papers

Representatives:

Native Title Party:          Ms Laurelea Robb and Mr Reece O’Brien, Kimberley Land Council

Grantee Party:                Mr Adam McKay, Hetherington Exploration and Mining Title Services Pty Ltd

Government Party:        Mr Domnhall McCloskey, State Solicitor’s Office

Mr Dennis Jacobs, Department of Mines and Petroleum

REASONS FOR DETERMINATION

1. On 5 May 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1921 (‘the proposed licence’) to Faurex Pty Ltd and Michael Morawa (‘the grantee party’), and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licence, comprising an area of 653.18 square kilometres and located 116 kilometres east of Derby encroaches, by 3.63%, the Wanjina-Wunggurr (Native Title) Aboriginal Corporation prescribed body corporate (registered on 26 April 2007 following the determination of WC99/11 – Wanjina-Wunggurr Wilinggin on 27 August 2004).  As this is a determined area, the only native title party with respect to these proceedings is the Wanjina-Wunggurr (Native Title) Aboriginal Corporation prescribed body corporate.  The overlap between the proposed licence and the determined area is along, approximately, the middle 20 kilometres of the 50 kilometre northern boundary of the proposed licence.  The proposed licence area extends into the determined area between approximately 800 metres, up to two kilometres in parts, along that central part of the northern boundary.

3. On 11 August 2010 the native title party lodged an expedited procedure objection application with the Tribunal.

4. On 10 September 2010, Hon C J Sumner was appointed as the Member for the purposes of conducting the inquiry. In accordance with standard practice, the Tribunal gave directions which included parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Following a number of requests for variation of compliance dates, the final dates were set down as: 28 March 2011 for the Government party; 4 April 2011 for the native title party, and 11 April 2011 for the grantee party.

5. The native title party lodged its contentions and evidence on 4 March 2011. The Government party lodged its contentions and evidence on 28 March 2011 with supporting information from the Department of Mines and Petroleum (‘DMP’) lodged on 11 March 2011.  The grantee party did not lodge any contentions or evidence.

6. At the listing hearing on 14 April 2011, the state and native title party agreed that the matter could proceed to a determination on the papers, that is, without holding a further hearing. On 21 April 2011, the grantee party representative advised that the grantee party was unavailable to submit information in this matter, and to proceed to a determination on the papers. I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) of the Act).

7. On 5 May 2011, I was appointed by Hon C J Sumner as the Member for the purposes of the conduct of the inquiry.

8. The unsworn affidavit of Mr Kevin Dann was lodged by the native title party on 4 March 2011. Mr Dann states he is a native title holder for the native title party. A sworn affidavit of Ms Hema Hariharan, Legal Officer for the Kimberley Land Council (‘KLC’), was also lodged on 4 March 2011, attesting to the manner in which Mr Dann’s evidence was collected. In considering the issue of the unsworn affidavit of Mr Dann, there were no objections to it being accepted, and the Tribunal is not bound by the rules of evidence (s 109(3) of the Act). I am satisfied that the unsworn affidavit is admissible, accept it on its face, and will deal with it and the other material presented by parties for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Hughes v State of Western Australia and Anor, (2003) 182 FLR 362; [2003] NNTTA 69).

Legal principles

1. Section 237 of the Act provides:

   237Act attracting the expedited procedure

   A future act is an act attracting the expedited procedure if:

   (a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

2. In Walley v Western Australia, (2002) 169 FLR 437 [2002] NNTTA 24 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].

4. With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of Martu Idja Banyjima People v State of Western Australia, [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia, (2008) 167 FCR 340; (2008) 101 ALD 28; (2008) 245 ALR 436; [2008] FCAFC 23).

5. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at [588]-[589] where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.

Evidence in relation to the proposed act

1. Government party and DMP documents include: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence site; a report and map from the Department of Indigenous Affairs (‘DIA’) Sites Register; a copy of the tenement application and the proposed endorsements and conditions of grant; instrument of licence and the first schedule listing land included and excluded from grant; and a tengraph Quick Appraisal.

2. A map prepared by the Tribunal’s geospatial services on 19 April 2011 shows that there are no Aboriginal communities within the proposed licence site.  There is one community (Windjingayre) within approximately twenty kilometres of the northern boundary of the proposed licence site and approximately twenty kilometres away from the overlap between the native title determination area and the proposed licence.

3. DIA documents provided by the Government party and the native title party reveal two registered sites (Winjina Gorge (12535) and Windjana Gorge Water Tank (12588)); and 3 other sites (Muntjaweela Bore (12970), Kilerinya Rockhole (12971) and Napier Range Burial site (14464)), within the proposed licence.  Of these sites, the Napier Range Burial site boundary is the only one which overlaps the proposed licence and the determination area.

4. The Tribunal map shows a number of sites within 5-10 kilometres of the proposed licence area, particularly clustered to the north and the south east of the area.

5. Government party documents establish the underlying land tenure of the proposed licence is predominantly pastoral lease (Kimberley Downs, 3114/692 at 81%).  Other significant land tenure includes: exploration permits (PA67 at 6.6% (EP535), 3.2% (EP129R5), 58.3% (EP464)); a production licence (PA67 at 5.8% (L6R1)); stock routes (CR12475 at 0.5% and CR12474 at 4.4%); three other pastoral leases (Napier Downs, 3114/682 at 1.7%; Napier Downs, 398/833 at 6.3% and Kimberley Downs, 398/834 at 2.0%); and various road reserves at less than 0.1% each.

6. According to the DMP quick appraisal, there are 17 tenements affected overlapping the proposed licence, from between less than 0.1% up to 3.7%, and 479 dead tenements.  There are also a number of services affected according to the quick appraisal, including: prospect areas and pits, an open pit mine, a number of minor roads, tracks, tanks, well/bores with windmills, a non perennial lake, major water courses and spring/soak/rockhole/waterholes.  There is also an aircraft landing ground and an airfield runway.  The tenements affected are recorded as having been established since 1983, and the dead tenements show that mining and/or exploration has taken place on the proposed licence site since at least 1966.  Further information from DMP in relation to the 3.63 percent overlap area between the proposed licence and the native title determination indicates that approximately 13 of the 479 dead tenements fall within that overlap, and that E04/1921 is the only live tenement within that overlap area.

7. The grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). According to documents provided by the Government party, these four conditions, and the following seven other conditions, are intended to regulate the exploration activities on the current proposed licence site:

   5.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.

   6.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.

   7.   No interference with Geodetic Survey Station FA 17, JK 4, Lennard River 57, LDR 58 to 68 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

   8. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on FNA/8861, Public Airstrip Reserve 5HR 47125, Water Reserves 16563 and 16653, National Park Reserve 31107, Water Travellers and Stock Reserve 11620 and Public Airstrip Reserve 47125.

   9.   No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.

   10.    The rights of ingress to and egress from Miscellaneous Licence 04/26, 04/48, and 04/53 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.

   Consent to mine on Stock Route Reserves 12474 and 12475 granted subject to;

   11.    No exploration activities being carried out on Stock Route Reserves 12474 and 12475 which restrict the use of the reserve.

According to Government party documents, the following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach) will be imposed:

1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

2.The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

Evidence provided by the native title party

1. The native title party has provided the following documents on 4 March 2011:

   ·A statement of contentions;

   ·An unsworn affidavit of Mr Kevin Dann; and

   ·A sworn affidavit of Ms Hema Hariharan (attesting to the manner in which Mr Dann’s evidence was collected).

2. The Affidavit of Mr Dann is as follows (note that I have taken reference to ‘Windjana George’ to mean ‘Windjana Gorge’):

   I, Kevin Dann, CDEP worker, of 4 Barnett Way, Derby in State of Western Australia, affirm THAT:

   1.My name is Kevin Dann. I was born on 26 March 1960 in Derby.  I went to school and grew up in Derby.  I am a Derby Ranger.

   2.I am a native title holder for the Wanjina Wunggurr Willinggin Native Title Determination (WC99/11) and a native title claimant in the Bunuba Native Title Claim (WC99/19).

   3.My mother is Bunuba and my father is Ngarinyin.

   4.I know the country where Faurex Pty Ltd and Michael Morawa (“the grantee party”) have applied for exploration licence E04/1921 (“the exploration licence area”).  The old people took me out and told me about this country.  They taught me about this country and showed me significant places.

   5.I have been shown a map of the exploration licence area.  The map of the exploration licence area I was show is attached to this affidavit and marked “A”.

   INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

   6.The exploration licence area is on Bunuba country.  Bunuba country is the country where Bunuba language was put by ngarranggarni, in the Dreamtime.  We visit the exploration licence area regularly to hunt and fish.

   7.Barramundi is a speciality.  You can catch barramundi after the first rain or flood as all the oxygen goes out of the water and barramundi is all around they float to the top for oxygen.  You can also catch sawfish in this area.

   8.We also hunt a lot in this area.  We know where to hunt.  We hunt hill kangaroos (wirrayi) and turkey and goanna (wawanyi).  There are also bush turkeys that look as big as emus.  We just catch enough for the day.

   9.We also visit the exploration licence area to collect bush tucker and bush medicines.  We visit all year round and depending on the season, we get bush fruits and vegetables, bush medicine, bush plum, bush orange, bush banana, bush grape and bush cucumber.  These don’t look like the common things you see in the shop.

   10.We also practice law in the exploration licence area.

   INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

   11.My country, or muay, and the Law we follow come from the Dreamtime, from the ngarranggarni.  I know the exploration licence area very well.  There are many places in my country, including inside the exploration licence area, which are very important to us.

   12.There are sites of significance in the exploration licence area.

   13.The exploration licence area covers the meeting point between two cultures- Windjana law business and Willigan share their practices and the Bunuba People.  There are lots of stories for this area and it is important to traditional owners of these groups.  Law business is conducted here within and around the exploration license[sic] area.

   14.Within the exploration licence area is also the Windjana George Water Tank, which is a mythological area and important to Traditional Owners.  It also has paintings and artefacts that are significant to us.

   15.Windjina[sic] George, which is a burial site, is also within the exploration licence area.  Windjina[sic] George is also very significant to Traditional Owners.

   16.Near to the exploration licence area are Mount Percy (Goornygadi) and Mount North (Manjawillya). The areas around Mount Percy and Mount North are important to us.  We have songs for these areas that pass through these areas.  Nothing should affect these song lines.

   17.There are places in the exploration licence areas that are so significant that people need to seek permission before going on country.  Not all of these sites are registered with the government.  A lot of strangers would not and cannot know about these sites.

   18.We pass through the exploration licence area and pull up at some of these sites of significance, usually once per year.

   19.We pass through the sites with the youngsters to teach them about the sites and as part of law.

   MAJOR DISTURBANCE TO LAND OR WATER

   20.I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.

   21.Strangers need to ask permission before going on country.  If they don’t come and talk to us I am worried that they will disturb this area and that bad things may happen.  If people enter these sites without permission they will get sick.  The only way to get better is to tell a traditional owner what you did.  You need to tell boss people who speak for that area and they can smoke you to get rid of the bad spirit that is making you sick.  The people you have to ask need to be from the country that you have entered.

   22.I think it is important that the mining company takes us out and shows us where they want to go.  It is difficult for the old people to look at a map and to know exactly where they want to go.  If they talk to us and if we go with them we can tell them where they can and can’t go.

   23.If we make an agreement with mining people, we will tell them where they can go on our country.  But they can’t do anything to our ngarranggarni or Dreamings.  If we say ‘Yes’ to drilling, we expect something to come back to us, like help making a road, and helping my community.

I accept that Mr Dann has the authority to speak for country on behalf of the native title party.

1. The Affidavit of Ms Hariharan is as follows:

   On 4 March 2011, I, Hema Hariharan, Legal Officer, of care of 36 Pembroke Road, Broome in the State of Western Australia, affirm:

   1.I was employed as a Legal Officer by the Kimberley Land Council Aboriginal Corporation (“KLC”) and work in the KLC’s Broome office.

   2.On 18 November 2010 I attended a Bunuba native title claim group meeting in Fitzroy Crossing.  At this meeting I showed maps of the areas, regarding the grantee party’s application for exploration licence E04/1921 and E04/1922 (the “exploration licence area”) to the Bunuba native title claimants.  The maps I showed the native title claimants is annexed to this affidavit and marked “A”.

   3.I was then told the names of the people who could speak for the exploration licence area, and arrangements were made to meet the following day in Janjuwa community for the purposes of taking affidavit information.

   4.On 19 November 2010 I travelled with my colleagues Adrian Dodson-Shaw and Douglas Powers to Janjuwa Community.  We arrived at approximately 8am and met with members of the native title claim group who were nominated to give affidavit information in relation to the exploration licence area.  Those who were nominated to speak for the area included, but were not limited to Patrick Green, Dylan Andrews, Johnny Bell and Kevin Dann.

   5.There was significant discussion amongst the group regarding the exploration licence area.  It was also discussed who from the group would be the most appropriate deponent for the affidavit information.  Mr Johnny Bell and Mr Kevin Dann were nominated to give the affidavit information.  I then asked the deponents some questions about the exploration licence area in the presence of the rest of the group.  I took notes of what the deponents said, which I used to prepare Mr Bell’s and Mr Dann’s affidavit.

I accept Ms Hariharan’s evidence, and note that reference to an affidavit from Mr Bell relates to another matter.

Evidence provided by the grantee party

1. The grantee party representative advised, throughout this process, and finally again on 21 April 2011, that he had been unable to obtain any information from the grantee as the grantee had been travelling and was unavailable.  As such, there were no contentions or evidence from the grantee party.  Nor did the grantee party advise whether or not they adopted the Government party contentions. 

Community or social activities (s 237(a))

1. In relation to determining s 237(a), I adopt the following findings from Tarlpa:

   ·History and interpretation of s 237(a) as amended (at [57]-[64]).

   ·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.

   ·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).

   ·Must the community or social activities take place on the proposed licence area? (at [85]-[86]). 

The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including s 63, as well as the Aboriginal Heritage Act 1972 (WA) (‘AHA’), the standard conditions to be imposed on exploration licences, and the additional conditions/endorsements, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.

1. In relation to community and social activities at the proposed licence area, Mr Dann states ‘we visit the exploration licence area regularly to hunt and fish’ (at para 6), he states that ‘barramundi and sawfish may be caught in the area’ (at para 7), and that there is also hunting in the area to kill kangaroos, turkey, goanna and bush turkey, and that only enough is caught for the day (at para 8).  He states that ‘we also visit the exploration licence area to collect bush tucker and bush medicines’ and that these visits are all year round and, depending on the season ‘we get bush fruits and vegetables, bush medicine, bush plum, bush orange, bush banana, bush grape and bush cucumber’ (at para 9).  He states ‘we also practice Law in the exploration licence area’ (at para 10). 

2. In relation to other social and community activities, Mr Dann states that ‘the exploration licence area covers the meeting point between two cultures - ‘Windjana law business and Willigan [sic] share their practices’, as well as with the Bunuba People (at para 13).  He states there are lots of stories for this area and it is important to traditional owners of these groups -  ‘Law business is conducted here within and around the exploration license [sic] area’ (at para 13).  He also states that there are visits to sites of significance, usually once per year, and uses the plural ‘we’ (at para 18), but does not outline who those visitors are.  He also indicates that ‘we pass through the sites with the youngsters to teach them about the sites and as part of law’ (at para 19). 

3. The statements made by Mr Dann are supported by the contentions of the native title party, which indicate that members of the native title party look after paintings, burial places and sites of importance and significance in and around the proposed licence, and that they have ancestors or family who are buried on or close to the tenement areas (at para 13).

4. The Tribunal’s geospatial services map shows that there are areas of significance near the 3.63% overlap between the native title party claim area and the proposed licence, and that the Napier Range Burial site boundary (14464) overlaps that area.  This is confirmed by the DIA register of Aboriginal sites.  I understand that the DIA register is not necessarily a register of all significant sites to the native title party in any particular area, and that sites may exist that are not registered which have significance in relation to the native title party’s social and community activities.

5. In Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30 (21 April 2004) (‘Wilma Freddie’), affidavit evidence on behalf of a native title party indicated access to a proposed tenement was regular, but the evidence provided only general information on the present activities of the claim group. The Tribunal found (at [11] & [13]) the requisite level of interference with social and community activities was unlikely in that matter as there was little specific evidence of the activities carried out over the area. In the current matter, Mr Dann’s evidence is also broad and does not contain detail as to who performs activities on or near the area (and specifically, within the area of overlap between the native title determination and the proposed licence); what the activities are (apart from hunting, fishing and collecting bush food and medicine, in the broadest of terms); or how often activities are conducted (apart from, again, in the broadest of terms).

6. The size of the proposed licence is 653.18 square kilometres and the area of the Wanjina-Wunggurr Wilinggin determination is approximately 63130.19 square kilometres.   The size of the overlap between the determination and the proposed licence is 3.63 percent of the proposed licence area.  Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, [2008] NNTTA 108, I find that the size of the proposed licence area in the context of the much larger native title determination area, particularly given the overlap is 3.63 per cent, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities.

7. Hon C J Sumner in Tarlpa (at [121]) makes the point that ‘The Tribunal has determined that the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities may be taken into account when assessing whether the grant of an exploration licence is not likely to directly affect those activities for the purposes of s 237(a) (Walley at [12]).’ Past and current use of the area has been outlined in paragraphs 18-19 above of this determination.

8. Taking all these factors into account, I find that there is not a real chance or risk that exploration activity is likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the AHA shows one site within the overlap between the claim area and the proposed licence (the Napier Range Burial site (14464)), but this does not mean there may not be other sites or areas of particular significance to the native title party over that area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. However, the AHA does protect all Aboriginal sites, whether on the Register or not.

2. In his unsworn affidavit, Mr Dann outlines a number of sites of significance to the native title party.  For example, he states that he knows the exploration licence very well, and there are ‘many places...which are very important to us’, including within the exploration licence area (at para 11).  He states that there is the mythological area, Windjana Gorge Water Tank, which has paintings and artefacts that are significant, and the Winjina Gorge, a burial site, which is ‘very significant to Traditional Owners’ (at paras 14 and 15).  He also points to the areas Mount Percy and Mount North, and song lines which pass through these areas that should not be affected by activity (at para 16).  He indicates that not all of these sites are registered with the Government, that strangers need to ask permission before going on country, and without permission they will get sick.

3. The native title party contentions indicate there are sites which have not been registered with DIA as they are confidential to the native title party, and that (at para 27):

   The complex nature and number of sites and areas of particular significance within and around the tenement reduce the ability of an endorsement on the grant of the proposed tenement that the grantee’s attention be drawn to the provisions of the Aboriginal Heritage Act to the extent that in such case it would be incorrect to assume that such an endorsement would mean that it would be unlikely that there would be interference of the kind relevant to section 237(b).

4. Mr Dann has not mentioned the Napier Range Burial site specifically, which is the only site included in the DIA record of heritage places that is within the 3.63 per cent overlap between the determination and the licence area, but he, and the native title party contentions, do refer to unnamed burial sites, and to other sites which may fall on the proposed licence, and so within that overlap area.

5. I am satisfied that the sites and areas mentioned in Mr Dann’s statement are of particular significance to the native title party in accordance with its traditions. I must now consider whether the intentions of the grantee party, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance.

6. The Government party relies on sections 17 and 18 of the AHA, and section 63 of the Mining Act to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance.

7. In addition, the Government party contentions at paragraph 5(e) indicate that the following condition will be placed on the grant of the proposed licence:

   In respect of the area covered by the licence the Licensee, if so requested in writing by the Bunuba, the applicants in Federal Court application no. WAD6133 of 1998 (WC99/19) and/or the Wanjina-Wanggurr (Native Title) Aboriginal Corporation, the native title prescribed body corporate holding the determined native title of the Wanjina-Wunggurr Wilinggin recognised in Federal Court application no. WAD6015 of 1999 (WC9911[sic]), such request being sent by pre-paid post to reach the Licensee’s address, c/- Hetherington Exploration & Mining Title Services Pty Ltd, PO Box 8249, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Bunuba and/or the Wanjina-Wanggurr (Native Title) Aboriginal Corporation, as the case may be, the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups [e.g. the Goldfields/South West/Central Desert/Pilbara/Yamatji Land and Sea Council RSHA] offered by Kimberley Land Council.

This suggests that should the KLC wish to adopt the terms of a RSHA, such would be executed in favour of the KLC.

1. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

2. The grantee party has not provided any guidance as to their attitude to the legislative framework relating to protection of any sites on the proposed licence, either in general, nor in relation to the overlap between the determination area, the licence area and the Napier Downs site (14646) which is within that boundary, or other sites which may not be recorded and which may also be within that overlapping boundary.  Nor does the grantee party provide any guidance as to its attitude to the regulatory regime in general.  I cannot determine the grantee party’s intention.

3. Taking all of these factors into account, I find that there is likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area.

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

1. As the evidence relating to s 237(b) of the Act supports a determination that the expedited procedure is not attracted in relation to E04/1921, it is not necessary to consider whether major disturbance to land and waters is likely to occur.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E04/1921 to Faurex Pty Ltd & Michael Morawa (grantee party) is not an act attracting the expedited procedure.

Helen Shurven
Member

19 May 2011