Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Roger Gough, Norman Holmes & John Towie
[2011] NNTTA 18
•21 February 2011
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Roger Gough, Norman Holmes & John Towie, [2011] NNTTA 18 (21 February 2011)
Application No: WO10/773
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Wanjina-Wunggurr (Native Title) Aboriginal Corporation (WC99/11)
(Applicant/native title party)
- and -
The State of Western Australia (Government party)
- and -
Roger Gough, Norman Holmes & John Towie (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 21 February 2011
Catchwords: Native title – future act – proposed grant of exploration licences – 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, 109, 151, 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (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)
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner
Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362
Little & Others 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
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), 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
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner
Solicitor for the
native title party: Ms Hema Hariharan, Kimberley Land Council
Representative of the
native title party: Ms Ania Maszkowski, Kimberley Land Council
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representative of the
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
REASONS FOR DETERMINATION
On 16 February 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 E80/4373 (‘the proposed licence’) to Roger Gough, Norman Holmes & John Towie (‘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).
The proposed licence, comprising an area of 3.29 square kilometres and located 132 kilometres west of Wyndham, is 100 per cent within 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.
On 15 June 2010, the native title party lodged an expedited procedure objection application with the Tribunal.
In accordance with standard practice, the Tribunal gave directions to 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. Directions made by the Hon C J Sumner on 30 June 2010 included the request that the Tribunal be provided with: contentions of the State by 4 October 2010; contentions of the native title party by 11 October 2010; and contentions of the grantee party by 18 October 2010.
The Government party contentions and evidence were lodged on 30 September 2010, and supporting information from the Department of Mines and Petroleum (‘DMP’) was lodged on 13 September 2010.
Following a number of requests to vary directions dates, on 11 October 2010 final dates for compliance for outstanding contentions were set down as 8 November 2010 (native title party) and 15 November 2010 (grantee party).
The contentions of the native title party, including the unsigned affidavit of Mr Gordon Smith Junior, in support of the native title party, were lodged on 8 November 2010. The same affidavit with handwritten amendments, unsworn but initialled on each page by Mr Smith Junior, was lodged on 12 November 2010. On 23 November, the Kimberley Land Council (KLC), as the legal representative for the native title party, lodged the affidavit of Ms Lauren West, KLC legal officer, setting out the circumstances in which Mr Smith Junior’s initialled but unsworn affidavit was collected. The affidavit attests to a number of visits by representatives from the KLC to take evidence from a native title party member who could speak for the land. While they were able to locate Mr Smith Junior as such a member, and have him initial the pages of his affidavit and make relevant corrections, they were not able to make the arrangements necessary to have the document sworn by him.
The grantee party lodged a signed letter with the Tribunal on 18 August 2010 outlining their response to the contents of the native title party’s Form 4 objection, and their contentions for the inquiry were lodged on 29 November 2010.
There appeared to be no material objection to documents being lodged out of time. The Tribunal is not bound by the rules of evidence (s 109(3) of the Act). In Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner (at [18]-[28]) summarised the Tribunal’s practice with respect to statements not in affidavit form. The Tribunal held that it is self evident that evidence relating to the matters in s 237 is essential to the making of a determination. While it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements. Applying these principles to the present case, with no objections from the other parties as to the Tribunal accepting evidence in that form, and given the KLC’s affidavit as to the difficulties in making arrangements for the swearing of Mr Smith Junior’s affidavit, I am satisfied that Mr Smith Junior’s unsworn affidavit is admissible, as is the unsigned contention of the grantee party and the signed letter of the grantee party (dated 18 August 2010), and I will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362)).
On 18 November 2010, the parties agreed that this matter could be determined ‘on the papers’ (i.e. without holding a hearing) and I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act). On 13 January 2011, I was appointed by Hon C J Sumner as the Member for the purposes of conducting the inquiry.
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] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Hon C J 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, DMP. Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DMP, 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 (‘DIA’) and obtain advice from that department that the proposed activities are acceptable.
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, 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).
Evidence in relation to the proposed act
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 plan from the DIA Register; a copy of the tenement application and the proposed endorsements and conditions of grant; an instrument of licence and the first schedule listing land included and excluded from grant; and a tengraph Quick Appraisal.
A map prepared by the Tribunal’s Geospatial Services on 22 November 2010 shows that there are no Aboriginal communities within the proposed licence site.
DIA documents provided by the Government party and the native title party reveal no sites or communities within the proposed licence site.
Government party documents indicate the underlying land tenure of the proposed licence site comprises entirely of Pastoral Lease 3114/1190 (Ellenbrae).
Government party Quick Appraisal documentation shows that one ‘pending’ exploration licence, E80/4388 applied for by Jorry Pty Ltd, overlaps the proposed licence by 100 per cent and is currently the subject of an Objection application by the native title party before the Tribunal (WO10/1298). One previously granted ‘dead’ tenement, E80/2469, active from 2001 and surrendered in 2004, overlaps the proposed licence at 6.9 per cent. The grant of the proposed licence 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 5-6 imposed require that the pastoral lessee is notified of the grant of the licence and of certain exploration activities. According to documents provided by the Government party, these conditions will regulate the exploration activities on the current proposed licence site.
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 their breach) will be imposed:
·The licensee’s attention is drawn to the provisions of the AHA 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.
Evidence provided by the native title party
The native title party has provided the following documents:
·A statement of contentions of the Wanjina-Wunggurr (Native Title) Aboriginal Corporation, received on 12 November 2010.
·An unsworn and initialled affidavit, with handwritten corrections, from Mr Gordon Smith Junior, received on 11 November 2010. Mr Smith Junior states he is a director and member of the Wilinggin Aboriginal Corporation, whose members include the Wanjina-Wunggurr People, and I accept that he has the authority to speak for country on behalf of the native title party.
The statement of Mr Smith Junior is as follows:
AFFIDAVIT OF GORDON SMITH JUNIOR
I, Gordon Smith Junior, director, translator and advisory committee member, of Mowanjum Community in the State of Western Australia, affirm:
1.My name is Gordon Smith Junior. I was born on 14 January 1972 at Derby Regional Hospital. I grew up on the El Questro Pastoral Station, Karunja Station and in Whyndam [sic].
2.I am a director and member of the Wilinggin Aboriginal Corporation. The Ngarinyin (Wilinggin) People, Worrorra (Dambimangari) People and Wunambal Gaambera (Uunguu) People are the together the Wanjina-Wunggurr People and are a society and a community together under Wanjina.
3.I know the area where John Towie, Norman Holmes and Roger Gough, the “grantee party”, have applied for exploration licence E80/4373, the “exploration licence area” because it is on Wanjina Wunggurr Wilinggin country and I have visited that country may [sic] times. I have been shown maps of the application area. The maps I was shown are attached to this affidavit and marked “A”.
4.My connection to country and to the exploration licence area is through my father’s side.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5.The exploration licence area falls within Wanjina Wunggurr Wilinggin country.
6.I went to the exploration licence area a number of times as a kid when El Questro was thriving with pastoral lease works.
7.When we visited the exploration licence area as kids we would go on bush walks with the old people to the fishing areas in and around the exploration licence area and camp out. My mum and I would go down to the river and go fishing. We would hunt at the same time. We would hunt for emus, kangaroos and wild bush turkey. They are still there today. You can get a lot of black brim in that area and if you go to the coastline you can get a lot of catfish. Variety of fish.
8.There are lots of fruits in and around the exploration licence area such as black plums. These are things taught to us as a child by the old people who were with us. My Nan (old man’s mum) played a huge role in growing me up. She would sit me down and explain these things to me.
9.These areas are important. Now more than ever we need to look after them as we are running out of time. There are not many old people in our clan to give us advice on cultural awareness protocols and how to deal with areas, what to look for, living close to country. If you don’t have that identify, you are a no-one. That’s how law and culture works in the Aboriginal world. Kids have to benefit from whatever we create. Every knowledge of story passed down has significance to kids. It is really important that they know they come from a place where they belong.
10.These days I would go to the exploration licence area with my vehicle about twice, three or four times every four months, travelling up and coming back. I definitely take the chance whenever I get out there. I don’t want to leave it for next time as it becomes too delayed.
11.I like to take my time driving through the area. It is where I belong. No one can question who I am or where I belong when I am there. When I go there I camp over during evenings.
12.I give my kids, sister’s and brother’s kids as well a lot of information about the area in and around the exploration licence area and explain how we need to take things slow and be careful about how we treat teachings.
13.Sometimes it is hard on our law and culture. When there is such interest in mining, it is very hard to explain the importance of specific areas. Every year that passes by we lose people with a significant connection to the country and we lose their advice. It is important for strangers to talk to us Indigenous and non Indigenous. We don’t want them to walk on important areas or shift things that have been there for many years. There are important stories out there.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
14.The whole exploration licence area is a significant place to Aboriginal people.
15.There are hunting areas and walking tracks in and around the exploration licence area where the old people took bush walks. These are the lines that the old people will travel on or walk about and go to ceremonies.
16.Every part of the exploration licence area has a story. Some spread to earliest days of man being there from the first existence. Only a certain few know the stories and some are not here anymore. We need to take care of the stories and our children and elders. We need to understand how we fit today in the world, our people, culture, country, law and custom. That is how Aboriginal law and culture works.
17.There are stories for there, places and people who held ownership and responsibilities to them.
18.The court needs to understand that the land was never unoccupied. We never walked away from the land and we have never given up. There are reasons why people moved out or were shipped off. Government policies played a huge role in families being shifted to another area which caused family structure to break down and never really put back together properly. People have to understand those things played a part on people feeling lost.
MAJOR DISTURBANCE TO LAND OR WATER
19.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.
20.The miners have to come to see us. The clan group has to be spoken to. They have to negotiate conditions and get some insight into how we feel about the area.
21.One of my main concerns is that the miners will dig too deep. This is a scary thought. Once you dig up the earth the feeling of significance is not there anymore. It interrupts the cultural significance stronghold. It is like if you walk into someone else’s yard and pick up something that has been there for thousands of years, it breaks that important feeling, the way it was structured in the first place.
22.Mining can’t just happen on the land. There needs to be somewhere where there is a clear area. The land, river systems, water, tree systems and animals, everything plays a part. If you interrupt the system, it will play havoc on what is around.
23.We don’t want them to walk on important areas or shift things that have been there for many years. There are important stories out there.
Evidence provided by the grantee party
The grantee party has provided the following documents:
·a signed letter received by the Tribunal on 18 August 2010 outlining their response to the contents of the native title party’s Form 4 objection, and
·a statement of contentions, lodged on 29 November 2010.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence E80/4373 and 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 risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and 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]).
In relation to community and social activities at the proposed licence area, Mr Smith Junior’s statement includes that: he went to the proposed licence area as a child ‘a number of times’ and describes the activities he did at that time to include bush walks, fishing, hunting for emus, kangaroos and wild bush turkey (at 6-8); he went to the area as an adult ‘with my vehicle about twice, three or four times every four months’ and camps over during the evenings (at 10-11). He also talks about passing on his knowledge to his children as well as his sister’s and brother’s children (at 12).
A map prepared by the Tribunal’s geospatial services on 22 November 2010, shows no communities or DIA registered sites within the proposed licence area.
In addition to Mr Smith Junior’s statements, native title party contentions state that ‘Members of the Native Title Party camp and conduct their community within the tenement area’, as well as hunt and fish, and collect traditional foods (at 13 and 16).
The proposed licence site is for exploration activities only. A mining lease would be required for any mining activities, under a separate future act procedure.
In their letter to the Tribunal received on 18 August 2010, the grantee party objects to statements made by the native title party in their Form 4 objection. The grantee party states that the proposed licence site land ‘is not suitable for hunting, being flat sandstone, with the local station owner having never seen anybody on this land hunting in any way.’ The grantee party states the land has previously been subject to ‘extensive’ exploration and drilling. While I accept that there has been some prior exploration activity over the proposed licence area, DMP Quick Appraisal documentation shows that only one past exploration licence overlapped the current proposed licence area and this was by 6.9 per cent.
The grantee party states they would be ‘delighted’ to work with the KLC ‘to excise any sites they know that have cultural value to the traditional owners.’ In their contentions, the grantee party states that they object to a number of Mr Smith Junior’s statements, including that he went fishing, on the basis of the coast ‘being around 150km’s away’, and that there is no permanent water in the area. I note Mr Smith Junior states he went fishing in the river, rather than the sea. The DMP Quick Appraisal shows a Non-Perennial lake exists on the proposed licence site and Tribunal mapping indicates a number of creeks and watercourses in the general vicinity. On that basis, I accept that Mr Smith Junior may have fished from time to time, on or near to the proposed licence site. I have no sworn or other material evidence before me to rebut Mr Smith Junior’s statements that he carried out the other listed social and community activities on or near the proposed licence site, so I am prepared to accept his statements at face value.
In Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner, affidavit evidence on behalf of a native title party indicated access was regular but 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 is unlikely as there was little specific evidence of the activities carried out over the area.
The size of the proposed licence is 3.29 square kilometres and the area of the Wanjina-Wunggurr Wilinggin Determination is 63165.747 square kilometres. Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner, I find that the relatively small size of the proposed licence area in the context of the much larger native title determination area makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out in the proposed licence area).
Taking all these factors into account I find that the exploration activity is unlikely 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))
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 (i.e. more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows no registered sites within the proposed licence area, 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. The AHA does protect all Aboriginal sites, whether on the Register or not.
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, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (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. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the Regional Standard Heritage Agreement (‘RSHA’): (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [30]-[34] (‘Champion’).
Mr Smith Junior states ‘The whole exploration licence area is a significant place to Aboriginal people’ (at 14). He speaks of: hunting areas and walking tracks (including those that people use to go to ceremonies); stories that relate to the land; the need to protect the stories and the country; and interrupting the system of the land (at 15-22).
In their contentions the grantee party has indicated they are willing to work with the traditional owners, which I accept. I note also that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. The Government contentions state (at 5(d)) that they will place a condition of requiring a RSHA, should the native title party request same. As there is no RSHA for the Kimberley region, this offer has no practical effect.
I do accept that, given the protective effect of sections of the AHA, the relatively small size of the proposed licence site, and the conditions and endorsements imposed on the grantee party, the chance of interference is remote (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [75]-[77], (‘Little’)).
I find that there is not likely to be a real risk of interference with any sites of particular significance to the native title party in the proposed licence area.
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 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Government party contentions indicate they will place the following condition on the grant of the proposed licence area:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Wanjina-Wunggurr (Native Title) Aboriginal Corporation, the holders of the native title of the Wanjin-Wunggurr Willinggin [sic] People recognised in Federal Court application no. WAD6015 of 1999(WC99/11), such request being sent by pre-paid post to reach the Licensee’s address, c/- Mr N Holmes, 5/20 Shaw Place, Innaloo WA 6018, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wanjina-Wunggurr (Native Title) Aboriginal Corporation any Regional Standard Heritage Agreement endorsed by peak industry groups and the Kimberly Land Council.
However, as previously noted (at [37]), there is no RSHA for the Kimberley region, and as such this condition has no practical effect.
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion [74]-[79] and the cases cited therein).
In this matter, the proposed licence is 132 kilometres west of Wyndham. In relation to s 237(c), the statements of Mr Smith Junior provide limited guidance. The native title party contentions also provide limited particulars, referring (at 38) to the issue of strangers coming on country without following Wilinggin law and custom or causing problems. They refer (at 37) to ‘sites which are so significant to the local Aboriginal community that, in accordance with the traditional law and culture, unauthorized persons may not be present at them’, but such sites have not been identified in the contentions, or by Mr Smith Junior in his statement. There is no evidence to suggest that there are any exceptional factors leading to a finding that major disturbance is likely.
While only a portion of the proposed licence area has been the subject of past, albeit limited, exploration, the presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing these proposed exploration activities.
I find that there is not likely to be major disturbance to land or waters in this matter.
Determination
The determination of the Tribunal is that the grant of exploration licence E80/4373 to Roger Gough, Norman Holmes & John Towie is an act attracting the expedited procedure.
Helen Shurven
Member
21 February 2011
0
13
0