Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Geotech International Pty Ltd
[2009] NNTTA 67
•30 June 2009
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Geotech International Pty Ltd, [2009] NNTTA 67 (30 June 2009)
Application No: WO08/751
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 – (WC99/11) (native title party)
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The State of Western Australia (Government party)
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Geotech International Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 30 June 2009
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 attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18, 62
Environmental Protection Act 1986 (WA)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea, Member
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Little & Others on behalf of the Badimia People v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group/Western Australia/Garry Evan Same, NNTT WO01/461, [2002] NNTTA 157 (2 August 2002), Hon C J Sumner
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Rosas v Northern Territory (2002) 169 FLR 330
Silver v Northern Territory of Australia (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Smith (2000) 163 FLR 32
Representatives of the Ms Ania Maszkowski, Kimberley Land Council
native title party: Mr Robert Houston, Kimberley Land Council
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Industry and Resources
Representative of the
grantee party: Mr Paul Askins, Geotech International Pty Ltd
REASONS FOR DETERMINATION
On 16 May 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/3968 (‘the tenement’) to Geotech International Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The tenement comprises an area of 164.4 square kilometres located 112 kilometres south-westerly of Wyndham in the Shire of Wyndham-East Kimberley. It is overlapped at 92.53 per cent by 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). Accordingly, the native title party with respect to these proceedings is the Wanjina-Wunggurr (Native Title) Aboriginal Corporation prescribed body corporate.
On 16 September 2008, the native title party made an expedited procedure objection application to the Tribunal.
On 1 October 2008, Deputy President Sumner was appointed Member for the purposes of the conduct of the Inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month 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.
At an adjourned status conference on 4 March 2009, following a number of conferences and two requests to extend the time required for compliance with directions in an attempt to negotiate a heritage protection agreement, parties made a further request for time. Parties agreed the additional time would either resolve the matter by way of agreement or enable compliance with directions for an inquiry to determine whether or not the expedited procedure is attracted. Deputy President Sumner approved the request on 9 March 2009 so the native title party representative could seek instructions regarding a contentious clause of the agreement.
The Government party lodged its contentions and evidence on 4 and 11 May 2009. The native title party lodged a statement of contentions and unsigned affidavit on 11 May 2009. The signed affidavit was filed on 29 May 2009. The grantee party indicated by email dated 13 May 2009 that it would rely on the evidence submitted by the Government party.
On 28 May 2009, I was appointed Member for the purposes of the conduct of the Inquiry. At a listing hearing on the same date, parties reported that all contentions and evidence had been lodged and requested that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal Sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the 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] FCAFC 23; (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1.
Contentions of the Government party
Government party documentation establishes the following underlying land tenure on the tenement area:
Durack River – Indigenous owned pastoral lease 3114/648 (53.5 per cent overlap);
Karunjie – Indigenous owned pastoral lease 3114/918 (29.2 per cent overlap);
Stock Route Reserve CR 17421 Mt Eliza (8.9 per cent overlap);
Stock Route Reserve CR 22256 Mt Eliza (7.8 per cent overlap); and
Road Reserve – Karunjie Road (less than 0.1 per cent overlap).
In relation to Stock Route Reserve CR 22256, the Federal Court determined on 27 August 2004 that native title is extinguished. In relation to Stock Route Reserve CR 17421, the determination of the Federal Court is that non-exclusive native title exists.
There are no Aboriginal communities identified within the area or in the near vicinity of the tenement.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party and native title party reveals there are no registered sites under the Aboriginal Heritage Act 1972 (WA) overlapping the tenement area.
There is no current mineral exploration or mining activity in the tenement area, however one surrendered exploration licence with an encroachment of 2 per cent was active for less than three months in 2003.
The grant of E80/3968 will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4). Additional conditions imposed require that the pastoral lessee is notified of the grant of the licences and of certain exploration activities (conditions 5-6).
A further condition requires that no mining activities be carried out on Stock Route Reserves 17421 and 22256 which restrict the use of the reserve (condition 7).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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 grantee provided no material and elected to rely on the Government party’s contentions.
Evidence provided by the native title party
The submissions of the native title party included a statement of contentions and the affidavit of Mr Paul Chapman (‘PC Aff’), made in the following terms:
AFFIDAVIT OF PAUL CHAPMAN
‘I, Paul Chapman, Pensioner, of Derby, in the State of Western Australia affirm:
1. My name is Paul Chapman. I was born near Karunjie and the Chapman River. I grew up here and worked as a stockman through this country. I live in Derby now.
2. I am the senior traditional owners for the Karunjie area around Royston Creek which includes the tenement area. Under our Law I have authority to speak for this country.
3. I have been shown a map of the application area, where Geotech International Pty Limited want to explore and know this area very well. It is hard to get to but we try to get there as often as we can.
Community or social activities
4. The Tenement Area falls within Ngarinyin (“WWW”) country.
5. As a young fella we would go to this country around Royston Creek for law.
6. Around Royston Creek is a good place to camp but it is hard to get to. We try to go there whenever we can but it can be hard country to get to. You can get everything up there including bush turkey, goanna, wallaby and porcupine. My ancestors used to camp here all the time.
Interference with sites of particular significance
7. The country around Royston Creek which includes the tenement area is an important area. You need to go there at the right time, when it is colder. If you go there during the wrong time, during law, bad things can happen.
8. There is a law ground at Royston Creek. It is hard to see on the map exactly where it is but it either in or very close to the tenement area. As a young fella I used to go to this country for law.
9. This area is not used much anymore for law because it is so hard to get to but we used to use it all the time. Men would go there to do law. We would camp there and do law business.
10. We call this place ardamungardi or sit down place. There is a wanjina story about this place.
Major disturbance to land or waters
11. 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.
12. If you go to the area of the tenement at the wrong time there can be a big rain, a bad rain. There is a wanjina story about this place which needs to be looked after. We need to look after this country.
13. The mining company needs to come and talk to us before they go there –we can show them where they can’t go. If they go there during the wrong time, bad things could happen.’
The evidence of Mr Chapman is uncontested and I accept it. Mr Chapman is a native title holder and is identified as one of the applicants in the original native title claimant application of the native title party. I accept Mr Chapman has authority to speak for country on behalf of the native title party.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment as to whether, as a matter of fact, the grant of the tenement, and the activities undertaken pursuant to it, are likely to interfere with the community or social activities of the native title party (in the sense of there being a real chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). The notion of direct interference involves an evaluative judgment as to whether the future act is likely to be the proximate cause of the interference. The interference must be substantial, and not trivial, in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
The evidence establishes that little exploration activity has occurred in the area of the tenement over the years and the evidence suggests there is no current activity.
The evidence of Mr Chapman states that he was ‘born near Karunjie and the Chapman River’ (of which Royston Creek is a tributary) (PC Aff p 1). Mr Chapman states that he is the senior traditional owner for Royston Creek which crosses the tenement area and that he has authority to speak for the country (PC Aff p 2). He attests to the fact that he knows the country well, and although it is hard to get out there, he tries to get there as often as he can. He attests to the fact that, as a young man he would go there for law and he adds that, although Royston Creek is hard to get to, it is a good place to hunt and camp (PC Aff p 6). The difficulty with this evidence is that, while acknowledging the inaccessibility of the tenement area and the difficulties of accessing it, it does not give any indication as to the frequency with which the area is, in fact accessed, despite the associated difficulties. Mr Chapman deposes to activities that he carried out there as a young person and that his ancestors camped there frequently. The suggestion that he tries to get out there as often as he can, implies that there are occasions that he does get out there, but it is difficult to make any assessment of the frequency of those visits. The evidence is significantly less extensive than that produced in Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group/Western Australia/Garry Evan Same, NNTT WO01/461, [2002] NNTTA 157 (2 August 2002), Hon C J Sumner (‘Paddy Neowarra’) (see discussion at [21]-[22]). Unlike the evidence provided in Paddy Neowarra, there are also no established communities within or in the near vicinity of the tenement area which might help support an inference that the community or social activities are of intensive nature. Mr Chapman deposes to have been born near Karunjie and the Chapman River, some ten kilometres from the western boundary of the tenement area. Presently, Mr Chapman resides in Derby, approximately 380 kilometres south west of the subject area.
The evidence adduced in this matter by the native title party does not provide any basis for suggesting that there are significant social or community activities carried out by the native title party on the area of the tenement in recent times. Consequently, I find that the grant of the proposed tenement is not likely to directly interfere with the exercise of the community and social activities of the native title party.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at 223) that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions p 14). I adopt the findings of Deputy President Sumner in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.
Sites of particular significance (s 237(b))
In relation to this limb of s 237, the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act (‘AHA’) shows there are no registered sites within the tenement area, but this does not mean there may not be sites or areas of particular significance to the native title party over the tenement 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. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal, recently in (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 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, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (‘Butcher Cherel’) at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Mr Chapman states that the area ‘around Royston Creek which includes the tenement area is an important area’ (PC Aff p 7). Mr Chapman states further that there is a site of significance, namely a law ground at Royston Creek, ‘either in or very close to the tenement area’ (PC Aff p 8). The area is known as ‘ardamungardi or sit down place’ (PC Aff p 10). Although no longer used for law, Mr Chapman says that there is a ‘wanjina story about this place which needs to be looked after’ (PC Aff p 12).
The evidence is to the effect that the general area of Royston Creek and a law ground with a Wanjina story in or very near the tenement area, are important to the native title holders. What the evidence does not establish is any basis for finding that the general area of Royston Creek, including the tenement area, or the now disused law ground, with an attached Wanjina story, are areas of particular significance to the native title party. I again compare this evidence with that presented in Butcher Cherel and Paddy Neowarra. The evidence provided by the native title party in relation to sites is uncontested and I am satisfied that it establishes the existence of one site, namely a law ground around Royston Creek in, or very near to, the general area of the tenement. On the basis of the evidence before me, however, I am unable to find that there are any sites of particular significance to the native title party within the tenement area and, therefore, I am not required to proceed to make an assessment as to whether or not the presumption of regularity and the other protective regimes will be sufficient to protect such sites.
In this case, the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the tenement. In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith (2000) 163 FLR 32 at 50-51). In this case, the grantee party is on notice as to the existence of the law ground referred to in the native title party’s evidence. This will affect its capacity to take advantage of the protective defenses in s 62 of the AHA in circumstances where there is interference with that site. However, there is no evidence to suggest that the grantee party will not act lawfully in accordance with the AHA.
Consequently, I have found that it is not likely that the grant of the tenement will lead to any interference to sites of particular significance.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The affidavit of Mr Chapman expresses concern that if the grantee party enters the area of the tenement at the ‘wrong time’ and without consultation with the native title party, (PC Aff p 12, 13) ‘bad things can happen’ (PC Aff p 7), namely ‘a big rain, a bad rain’ (PC Aff p 12). I accept that the presence of strangers on the subject area may be upsetting to the native title holders. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural concerns about unauthorised access, in terms of the native title holders’ traditional laws and customs, alone, cannot form the basis of the finding of major disturbance. There must be some physical disturbance over and above that which it has been judged will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that could be pointed to will be the exploration activities to be conducted by the grantee party. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party in relation to their offence at the grantee party entering the land without speaking to them, is not sufficient to establish that major disturbance is likely to occur. I find that there is not likely to be major disturbance to land or waters in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence E80/3968 to Geotech International Pty Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
30 June 2009
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