Western Australia/Jidi Jidi Aboriginal Corporation/Paladin Resources Ltd

[2002] NNTTA 114

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/Jidi Jidi Aboriginal Corporation/Paladin Resources Ltd, [2002] NNTTA 114 (26 June 2002)

Application No: WF02/14

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

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IN THE MATTER of a Future Act Determination Application

The State of Western Australia (Government Party)

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Jidi Jidi Aboriginal Corporation (WAG 72-75 of 1998) (Native Title Party)

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Paladin Resources Ltd (Grantee Party)

FUTURE ACT DETERMINATION

Tribunal:  The Hon C J Sumner, Deputy President
Place:  Perth
Date:  26 June 2002

Catchwords:  Native title – future act – application for determination in relation to the grant of exploration licences – native title party a registered native title body corporate – requirements for consultation with native title holders on native title decision – consent determination not possible – evidence appended to application – normal inquiry directions dispensed with – nature of exploration licence – weighing of criteria in s 39(1)(a) of Native Title Act – determination that the act may be done.

Hearing Date:                 25 June 2002

Counsel for the

Government party:         Mark DiRenzo, Crown Solicitors Office

Counsel for the

native title party:            Frances Flanagan, Yamatji Barna Baba Maaja Aboriginal Corporation

Representative of the

grantee party:                 John Borshoff, Paladin Resources Ltd

Legislation:Native Title Act 1993 (Cth) ss 29(2), 30, 35, 38, 39, 253

Native Title (Prescribed Bodies Corporate) Regulations 1999 – Regulations 6, 8, 9,

Cases:  Western Australia v Thomas (Waljen) (1996) 133 FLR 124

Evans v Western Australia (1997) 77 FCR 193

WMC Resources Ltd/State of Western Australia/Evans (NNTT WF99/4, 23 December 1999

Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002

REASONS FOR DETERMINATION

Background

1. On 21 June 2002, pursuant to s 35 of the Native Title Act 1993 (Cth) (‘the Act’), the State of Western Australia (‘the Government party’) applied for a future act determination by the Tribunal (‘the s 35 application’) in relation to the proposed grant of exploration licences E52/1167, E52/1168, E52/1169 and E52/1179 (‘the Exploration Licences’) under the Mining Act 1978 (WA). The Exploration Licences are situated between 115km to 140km south west of Newman. They are for a term of 5 years with rights to extend for two periods of up to two years and further periods of one year in prescribed circumstances. (s 61 Mining Act 1978 (WA)).

2. The grant of the Exploration Licences will be made to Paladin Resources Ltd (previously Paladin Resources NL) ‘the grantee party’ specified in the s 29 notices given in accordance with the Act on 26 February 1997 for E52/1167, E521168 and E52/1169 and 9 April 1997 for E52/1179.

3. At the time the s 29 notices were given, Clarrie Smith and Others on behalf of the Nharnuwangga, Wajarri and Ngarla People were registered native title claimants over the area covered by the Exploration Licences.  

4. On 5 July 2001, the Federal Court made a native title determination over a large area of land including the area of the Exploration Licences. The determined native title rights and interests are described in the Native Title Register. The Common Law Holders of Native Title are the community of Nharnuwangga, Wajarri and Ngarlawangga people. The Prescribed Body Corporate and trustee of the native title is the Jidi Jidi Aboriginal Corporation. Section 253 of the Act defines ‘native title party’ by reference to paragraphs 29(2)(a) and (b) and s 30. Sub-section 29(2) of the Act says that any registered native title body corporate or any registered native title claimant at the time the s 29 notice was given is a native title party. Section 30(1)(c) says that any body corporate that becomes a registered native title body corporate after the end of a period of three months from the s 29 notification date and whose claim was entered on the Register of Native Title Claims before that time is also a native title party. The Jidi Jidi Aboriginal Corporation is such a body corporate and is ‘the native title party’ in these proceedings.

5. None of the parties have raised issues in relation to negotiation in good faith.  There is no jurisdictional impediment to making a determination on grounds that the Government and/or grantee party have not negotiated in good faith.

6. With respect to exploration licence E52/1169, the s 29 notice gave the area of the grant as 21.707 square kilometres. The s 35 application says the same. The Government party informed the Tribunal that this is an error and the correct area is 220 square kilometres but otherwise the description in the s 29 notice is accurate. No party has raised any issues about this defect in the s 29 notice. It is possible that in some circumstances an error of such magnitude (albeit inadvertent) could affect the validity of the s 29 notice and call into question the Tribunal’s jurisdiction to conduct an inquiry and make a determination. The policy of the Act is to provide the opportunity for potential claimants of native title to make a claim within three months and have it registered within four months of the s 29 notice, thus becoming native title parties and securing the right to negotiate under the Act. A misdescription of this kind could, depending on the circumstances, have misled potential claimants into thinking that the grant did not cover their country. In the present matter I am satisfied that no question of jurisdiction arises based on this misdescription. A determination of native title has now been made and covers the whole of exploration licence E52/1169.

7. There have been no contentions made by the parties about the Tribunal’s jurisdiction to conduct an inquiry and make a determination. No agreement of the kind mentioned in s 31(1)(b) of the Act between the negotiation parties to the grant of the Exploration Licences has been made and given to the Tribunal (s 41A(1)(a)), so the Tribunal must conduct an inquiry and make a determination (ss 37 and 38).

Previous future act determination application

1. On 10 June, Clarrie Smith and Others on behalf of the Nharnuwangga, Wajarri and Ngarla People and the Jidi Jidi Corporation made a s 35 future act determination application relating to the Exploration Licences. The parties sought a consent determination on the basis that the native title party had reached agreement with the grantee party for the act to be done subject to conditions to protect the native title holders’ cultural heritage. The application said that the negotiation parties had not been able to execute a formal agreement of the type mentioned in s 31(1)(b) of the Act. This was the first s 35 application which involved a registered native title body corporate as the native title party, rather than registered claimants.

2. At the hearing to consider whether a determination was appropriate, the Tribunal was informed (see facsimile letter of 10 June 2002 from Yamatji Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) to the National Native Title Tribunal):

   ‘that no attempt was made to execute a State Deed in relation to this matter for the simple reason of administrative efficiency.  The members of the Jidi Jidi Corporation live as far apart as Onslow and Meekatharra making it logistically highly difficult to execute a State Deed without significant delay and cost.  As detailed in my letter of 29 May Paladin Resources attended a meeting of the Jidi Jidi Corporation at Yulga-Jinna Community on 13 May 2002.  At this meeting an agreement in principle was reached for the grant of the tenements subject to Paladin Resources agreeing to fund and facilitate heritage survey/s within the proposed tenements prior to undertaking certain activities.  The agreement was formalised in a document entitled “Contract for Services in Relation to Exploration” dated 29 May 2002.  At the meeting of 13 May the Yamatji Land and Sea Council took instruction from the Jidi Jidi Corporation to proceed with a consent determination application before the National Native Title Tribunal, subject to the formalisation of the in-principal agreement.’

Questions then arose about the appropriateness of a consent determination in these circumstances. The hearing was adjourned to enable the native title party to consider the issues raised and as a consequence the s 35 application was withdrawn.

1. The difficulty in making a consent determination arises because of the Native Title (Prescribed Bodies Corporate) Regulations 1999 made under the Act. Regulation 6(1) says that if a prescribed body corporate holds native title rights and interests in trust under s 56 of the Act the body corporate has (among others) the functions of managing the native title rights and interests of the common law holders (Regulation 6(1)(a)) and to consult with the common law holders in accordance with regulation 8 (Regulation 6(1)(d)). Regulation 8(2) says that a prescribed body corporate must consult with and obtain the consent of the common law holders in accordance with the regulation before making a ‘native title decision’. ‘Native title decision’ is defined to include a decision to do, or agree to do, any act that would affect the native title rights or interests of the common law holders. The Regulation then sets out a number of steps to be taken by the prescribed body corporate to ensure that the common law holders understand the purpose and nature of a proposed native title decision. One of these is that consent to a native title decision must be obtained according to the traditional laws and customs of the common law holders or otherwise by a process agreed to or adopted by the native title holders for the proposed native title decision or for decisions of the same kind as that decision. Regulation 9 contains evidentiary processes which can be relied upon to establish that proper consent has been obtained. Regulation 9(2)(b) allows the common law holders to give the body corporate authority to make decisions of a certain kind.

2. Yamatji and counsel for the native title party have taken the view (correctly in my opinion) that a decision to consent to a determination that an exploration licence may be granted is a ‘native title decision’ under the Regulations.  The consultation and consent procedures in the Regulations therefore need to be followed in relation to it.  It appears that they may not have been followed in relation to the Exploration Licences and for this reason the native title party (i.e. the Jidi Jidi Aboriginal Corporation) cannot consent to a determination that the Exploration Licences be granted.

3. It is with this background that the Government party has made the s 35 application which is now before me. The application contained documents which the Tribunal usually directs be provided for a determination of this kind, including maps, the conditions to be imposed, and information about sites on the Register of Aboriginal sites kept by the Department of Indigenous Affairs. It also included information about the grantee party’s proposals for exploration, a copy of the facsimile letter dated 10 June 2002 from Yamatji to the Tribunal and a copy of the ‘Contract for Services in Relation to Exploration’ dated 29 May 2002 signed by Yamatji and the grantee party and referred to in that letter.

4. Normally in a s 35 application the Tribunal makes directions for the production of contentions and documents by the parties. In this case all parties have agreed that I can dispense with these directions and proceed to determine the matter on the basis of the documents already submitted. The native title party was represented by counsel from Yamatji which is the designated representative Aboriginal/Torres Strait Islander body for the area covered by the native title determination. In my view, which was supported by all the parties, the approach of the native title party to these proceedings does not constitute a native title decision of the kind referred to in the Regulations. It is not consenting to a determination that the Exploration Licences can be granted but leaving it to the Tribunal to make a determination based on the evidence before it. The native title party did not tender any evidence. In these circumstances I consider it appropriate for the matter to be determined on the basis of the documentary evidence submitted, supplemented by submissions made at a hearing convened on 25 June 2002.

The law

1. In making this determination, I have considered and applied those principles relating to future act determinations that have been extensively discussed in the following Federal Court and Tribunal decisions:

• ReKoara People (1996) 132 FLR 73 (‘Koara 1’);

• Evans v Western Australia 77 FCR 193 (‘Evans’) Federal Court, RD Nicholson J - an appeal from the Tribunal determination in Koara 1;

• Western Australia/Evans(Koara)/Sons of Gwalia & Ors, NNTT WF96/1, WF96/5, WF96/11, Hon CJ Sumner, Ms Diane Smith and Mr Michael McDaniel, 19 June 1998 (‘Koara 2’) - Tribunal determination following the successful appeal in Evans;

• Western Australia v Thomas (1996) 133 FLR 124 (‘Waljen’); and

• WMC Resources Ltd/Western Australia/Evans (Koara), NNTT WF99/4, Hon C J Sumner, 23 December 1999.

1. The centrally relevant statutory provisions are ss 38 and 39 of the NTA.

‘38  Kinds of arbitral body determinations

(1)Except where section 37 applies, the arbitral body must make one of the following determinations:

(a)    a determination that the act must not be done;

(b)    a determination that the act may be done;

(c)     a determination that the act may be done subject to conditions to be complied with by any of the parties.

Determinations may cover other matters

(1A)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:

(a)    is not reasonably capable of being determined when the determination is made; and

(b)    is not directly relevant to the doing of the act;

is to be the subject of further negotiations or to be determined in a specified manner.

Example:The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.

Matters to be determined by arbitration

(1B)If:

(a)    the manner specified is arbitration (other than by the arbitral body); and

(b)    the negotiation parties do not agree about the manner in which the arbitration is to take place;

the arbitral body must determine the matter at an appropriate time.

Profit‑sharing conditions not to be determined

(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:

(a)    the amount of profits made; or

(b)    any income derived; or

(c)     any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

39  Criteria for making arbitral body determinations

(1)In making its determination, the arbitral body must take into account the following:

(a)    the effect of the act on:

(i)the enjoyment by the native title parties of their registered native title rights and interests; and

(ii)the way of life, culture and traditions of any of those parties; and

(iii)the development of the social, cultural and economic structures of any of those parties; and

(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)    the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

(c)     the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

(e)     any public interest in the doing of the act;

(f)     any other matter that the arbitral body considers relevant.

Existing non‑native title interests etc.

(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

(a)    existing non‑native title rights and interests in relation to the land or waters concerned; and

(b)    existing use of the land or waters concerned by persons other than the native title parties.

Laws protecting sites of significance etc. not affected

(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

Agreements to be given effect

(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

(a)    must take that agreement into account; and

(b)    need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’

The area of the Exploration Licences

1. The Exploration Licences were applied for by the grantee party in 1996 and lie approximately 135 kilometres west-southwest of the township of Newman in the Shire of Meekatharra.  Applications E52/1167-69 form a contiguous block of 660 square kilometres surrounding the Kunderong Range south and west of Turee Creek homestead.  Application E52/1179 covers 47 square kilometres at Saltwater pool about 35 kilometres south of Turee Creek.  The four applications are situated on vacant Crown land and part of the Turee Creek Pastoral Lease.

The nature of an exploration licence and activities permitted by it

1. I adopt the findings made in Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002 (paras [24]-[31]) on the nature of an exploration licence and the activities permitted by it.  In summary a grantee is authorised (s 66 Mining Act):

   ·to enter and re-enter land for the purposes of exploring for minerals in, or under the land;

   ·to explore, subject to any conditions imposed, and carry out necessary works including digging pits, trenches and holes, and sinking bores and tunnels;

   ·to excavate, extract or remove up to 1000 tonnes of material, or more with the Ministers approval;

   ·subject to the Rights in Water and Irrigation Act 1914 to take water and sink wells or bores.

2. Activities carried out under exploration licences range from literature searches; aeromagnetic surveying and mapping; regional geological mapping, electrical geophysical programs; rock chip sampling and assaying; and the drilling of identified targets. The explorer progresses from one to the other depending on the prospectivity indicated by earlier investigations. If earlier findings are not satisfactory, the title may be dropped and subsequent ground disturbing stages such as drilling not utilised.

3. Conditions to be imposed on the Exploration Licences:  Among others, the Government party intends to impose the following standard conditions on the grant of each of the Exploration Licences.

   ‘1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.

   2.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the District Mining Engineer.

   3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration programme.

   4.Unless the written approval of the District Mining Engineer is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.’

In addition, the Exploration Licences will contain an endorsement drawing the licensees attention to the provisions of the Aboriginal Heritage Act 1972 (WA).

The proposed future act – current proposals of the grantee party

1. In general terms, exploration in the licence areas will be primarily directed towards the discovery of gold, base metal and platinum group metal mineralization.  Exploration will incorporate a multi-disciplinary approach combining geological, geochemical and geophysical exploration methods.  At this stage the grantee has not identified specific localities where geochemical or geological ground surveys will be carried out.  This will be determined after initial reconnaissance and mapping has identified potential areas of mineralization.

2. Ground surveys will require the establishment of surveyed grids for collections of soil and other samples.  These surveys will not require substantial vegetation clearing or line cutting.  It may be necessary to clear lines of sight in areas of thick scrub but all mature growth will be left untouched.  It is anticipated that the lines of sight will revegetate naturally.  Lines will be marked using flagging tape and wooden pegs with aluminium reference tags.  These pegs will generally suffer from termite activity and disintegrate over 3-4 years.

3. The grantee party anticipates minimal use of mechanised equipment to establish grids and will avoid this wherever possible.  The use of mechanised equipment requires the written approval of the District Mining Engineer, as per condition 4 of each tenement.  The grantee party will plan its grids to avoid permanent land or vegetation disturbance.  All work will be undertaken and supervised by trained, experienced and responsible employees or agents of the company.

4. The area has previously been surveyed by the Australian Geological Survey Organisation and private companies using airborne magnetic and radiometric equipment designed to identify prospective rock units and geological structures indicative of concentrations of economic mineralization.  Follow-up ground surveys, if justified, will be undertaken on foot and will have no environmental impact.  Additional airborne surveys may include electromagnetic data collection.

5. Drilling will only be carried out if surface exploration identifies anomalous mineralization or geophysical targets that warrant the expense.  At this stage the grantee party has not identified any such targets.  Shallow rotary air blasting (RAB) drilling can be undertaken along grid lines without access preparation.  Deeper reverse circulation (RC) and diamond drilling, if warranted, would utilise heavier equipment and may require preparation of access tracks and drill pads.  In all cases, written approval is required by the District Mining Engineer.  In addition, any holes drilled must be plugged on completion.  All drill sites will be prepared and rehabilitated in accordance with the Mining Act 1978 and Regulations.

6. The overall periods and level of activity will depend on climatic conditions such that under normal circumstances, most activity will be concentrated during the dry season winter months (April to December).  Exploration will be intermittent throughout the life of the tenements.  The level of activity in the second and subsequent years of the terms of the licences will also depend on the results of exploration in the previous year.  If encouraging results are not obtained within a reasonable period of time it is likely that the exploration licences will be surrendered before the end of their term.

Section 39(1)(a)(i) – enjoyment of registered native title rights and interests

1. The external boundaries of the native title determination encompass a large area of mid-west Western Australia, including the area of the Exploration Licences.  The National Native Title Register records the determined native title rights and interests of the Nharnuwangga, Wajarri and Ngarla people to be:

   ‘(a) the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the land;

   (b) the right to hunt, fish and gather (including to gather ochre) for the purpose of satisfying their personal, domestic or non-commercial communal needs, including observing traditional laws and customs; and

   (c) the right to have access to and camp on the balance of the determination area in order to:

   (i) exercise the rights set out in (b) above

   (ii) travel through; and

   (iii) visit and care for places which are of cultural or spiritual importance.’

The native title rights and interests are not exclusive of the rights and interests of others.

1. These determined interests apply to the claim area generally and could potentially be affected by exploration.  It is ordinarily the responsibility of the native title party to produce evidence of how these registered rights and interests are enjoyed and exercised so that the Tribunal can consider the likely impact of the future act (WMC Resources Ltd/State of Western Australia/Evans (NNTT WF99/4, 23 December 1999 at p 10-11)). Although WF99/4 dealt with claimants not holders of native title, the principle is the same. Section 39(1)(a)(i) talks of the effect of the act on the enjoyment of the registered native title rights and interests which includes determined native title rights described on the National Native Title Register (s 30(3)(a)). While the native title rights and interest specified on the Register exist over the whole area covered by the determination, how they are enjoyed in practice in a particular locality may vary. For this reason the principles outlined in WF99/4 about evidence of the enjoyment of native title rights and interests, so that the effect of a future act can then be assessed remains applicable.

2. While the Tribunal may conduct its own enquiries, as a matter of general practice it will not where the parties are represented before the Tribunal.  There is no onus of proof on any of the parties although parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge (Waljen at 162). For the reasons already outlined the native title party has not produced any evidence relating to this criterion and as they were legally represented I do not regard it as necessary for the Tribunal to make its own inquiries.

3. Even if I were to assume that the native title party enjoyed its native title rights on a regular basis by hunting, fishing, gathering or camping over the areas of the Exploration Licences, I would not regard the effect of exploration activity on them as justifying a determination that the act may not be done in this case.  The exploration is intermittent, much of it low level disturbance and even if it involves ground disturbing activities such as tracks, costeans and drilling, the activity is not permanent.  Conditions are imposed for rehabilitation of disturbed areas thus permitting the native title party to resume any activities that may have temporarily been interfered with.  It is common ground that the grant of the Exploration Licences will not extinguish native title. 

Section 39 (1)(a)(ii) - way of life, culture and traditions

1. There is no evidence of an Aboriginal community living on or in the vicinity of the proposed Exploration Licences or other evidence of the effect of the grant on this criterion.

Section 39(1)(a)(iii) - development of social, cultural and economic structures

Section 39 (1)(a)(iv) - freedom of access – freedom to carry out rites, ceremonies and other activities

1. The native title party has not submitted any evidence specific to these criteria.

Section 39(1)(a)(v) – areas or sites of particular significance

1. Within, or in the vicinity of, the area of E52/1167 there are two sites on the Interim Register kept by the Department of Indigenous Affairs.  The Windmill, Spring and Camp site is classified as a historical site type and has a reliable location description, open access and no gender restriction.  The Kunderong Range site is classified as a mythological site, has a reliable location description, has closed access and no gender restriction.

2. The Kunderong Range site also intersects E52/1168.  In addition, the Jinnawanna site intersects E52/1168.  This site is on the interim register, is classified as a mythological site, has an unreliable location description, has closed access and no gender restriction.

3. Tenement E52/1169 also intersects the Kunderong Range site.  It also intersects three other sites, all on the interim register.  Turee Creek Station is a burial site of unreliable location description, it has closed access and no gender restriction.  The Turee Creek site is a historical site, has a reliable location description, has open access and no gender restriction.  The East Kunderong Hill site is a ceremonial site of reliable location description, it has closed access and no gender restriction.  Tenement E52/1179 does not intersect any sites on the Register.

4. There is no evidence from the native title party relating to these sites and I do not make a finding that they are sites of particular significance to the native title party in accordance with their traditions.  Nevertheless the nature of the sites suggests that four of them (Kunderong Range, Jinnawanna, Turee Creek Station and East-Kunderong Hill) may be such sites, particularly as native title exists over the area in which they are located.  They all have closed access and are either mythological (Kunderong Range and Jinnawanna), burial (Turee Creek Station) or ceremonial (East-Kunderong Hill) sites.  These are the type of sites that would normally be of special significance to Aboriginal people.

5. I adopt the findings of the Tribunal in Waljen at 209-211 under the heading ‘(ii) Section 39(1)(a)(v)’ up to the heading ‘Evidence’ which sets out the legislative requirements for the protection of Aboriginal sites. It is an offence under the Aboriginal Heritage Act 1972 (WA) to interfere with a site whether or not it is listed on the Register.

6. The evidence included the ‘Contract for Services in Relation to Exploration’ dated 29 May 2002 and signed by Yamatji on behalf of the native title party and the grantee party which provides for heritage surveys to be carried out prior to exploration (meaning activities and operations of the grantee party on the Exploration Licences).

7. My finding is that the grant of the Exploration Licences and activities carried out pursuant to them are not likely to interfere with any sites of particular significance to the native title party.  The grantee party is aware of the sites on the Register, aware of its obligations under the Aboriginal Heritage Act and has agreed to conduct heritage surveys.

Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party

1. The native title party did not raise any issues with respect to this criterion.

Section 39(1)(c) - economic or other significance

1. The current proposal of the grantee party will result, assuming the grantee does not change its plans, in total exploration expenditure of $725,000 in year one of the Exploration Licences and $655,000 in year two.  The granting of the licences will also generate rental revenue for the State.  The potential for any royalty revenue to be generated in the longer term is contingent on the discovery of economic mineralisation that warrants production and its subsequent exploitation pursuant to a mining lease.  There is no evidence on whether this is likely or not and I have not taken the possibility of a productive mine into account under this criterion.

2. If the grantee party makes the proposed expenditure, it will have some economic benefit to the people of Western Australia and in the local area in that some jobs will be generated or at least maintained and there will be expenditure on exploration plant and equipment.  There is no evidence of whether the expenditure will directly benefit any Aboriginal people but it conceivably could do so if any Aboriginal people are employed/or contracted by the grantee party during exploration.  There will be some payments to the holders of native title who will participate in the heritage surveys.  The economic significance of the grants will not be great in the overall context of the Western Australian economy but there will be some positive economic activity arising from them.

Section 39(1)(e) - public interest.

1. There is a public interest in the long-term viability of the mining industry in Western Australia (Evans v Western Australia (1997) 77 FCR 193 at 215; Western Australia v Thomas (Waljen) (1996) 133 FLR 124 at 176) and the grant of the Exploration Licences serves as a basis to contribute to that in a general sense. There are no countervailing public interest or other factors in this case which would reduce the weight to be given to the importance of facilitating the orderly and properly regulated grant of mineral titles.

Section 39(1)(f) – any other matter that the arbitral body considers relevant

1. Meeting a Yulga-Jinna on 13 May 2002.  This meeting of the Governing Committee of the Jidi Jidi Aboriginal Corporation was convened by Yamatji.  Ms Frances Flanagan, counsel for the native title party attended the meeting.  She informed the Tribunal, and I accept, that approximately 20 native title holders attended the meeting including eight or nine who are on the Governing Committee of the Corporation.  Although a meeting of the Governing Committee, an invitation to attend was advertised broadly by sending notices to places where the native title holders live.  Aboriginal Liaison Officers employed by Yamatji assisted in transporting people to the meeting.  The facsimile dated 10 June 2002 from Yamatji to the National Native Title Tribunal is an accurate record of the outcomes of the meeting.  Although this meeting may not strictly have complied with the Regulations on consulting and obtaining the consent of the native title holders to a native title decision I can have regard to its outcomes in making my determination.  The circumstances of the meeting and decisions taken give weight to a determination that the act may be done.  In future, it might be helpful for the native title party to obtain approval from the native title holders for the body corporate to consent to determinations that exploration licences can be granted provided appropriate heritage protection measures are in place (Regulation 9(2)(b)).

2. Indigenous Land Use Agreement: The determination of native title was accompanied by an Indigenous Land Use Agreement entered into and registered under the Act. This ILUA means that the grant of exploration licences in future may be dealt with in accordance with the alternative provisions in the ILUA rather than under the right to negotiate provisions of the Act. It facilitates the grant of exploration licences where a heritage protection agreement is in place. Ms Flanagan informed me that the grant of the Exploration Licences is subject to the same heritage protection measures as included in the ILUA and this is also a matter I can give some weight to.

3. Heritage Protection:  The ‘Contract for Services in Relation to Exploration’ dated 29 May 2002 is in the standard form which Yamatji uses commonly in relation to exploration.  The level of protection for native title is therefore no less in this case than is generally the case within the Yamatji area.

Conclusions

1. The Tribunal’s task is a discretionary one that involves weighing the various criteria in s 39 on the basis of the evidence before it (Waljen at 165-166). Taking account of the matters referred to above I conclude that a determination that the act may be done is appropriate. The evidence does not suggest a need for conditions. The major concern of the native title party for heritage protection has already been covered by the Contract for Services.

Determination

1. The determination of the Tribunal is that the exploration licence applications E52/1167, E52/1168, E52/1169 and E52/1179 may be granted to Paladin Resources Ltd.

Hon C J Sumner
Deputy President
26 June 2002