Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd
[2014] NNTTA 56
•10 June 2014
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (10 June 2014)
Application No: WO2012/0592, WO2012/0823, WO2012/0824, WO2012/0825, WO2012/0826, WO2012/0827, WO2012/0828
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection applications
Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC (native title party)
- and -
The State of Western Australia (Government party)
- and -
Teck Australia Pty Ltd (grantee party)
DETERMINATION THAT ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: James McNamara, Member
Place: Brisbane
Date: 10 June 2014
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts are likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – whether acts are likely to involve major disturbance to land or waters - expedited procedure not attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151, 155, 162, 211, 237
Mining Act 1978 (WA)
Mining Act 1904 (WA), s 276
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Bush Fires Act 1954 (WA), ss 7, 18
Bush Fires Regulations 1954 (WA), reg 15B
Cases:Adamson v Hayes (1973) 130 CLR 276; [1973] HCA 6 (‘Adamson v Hayes’)
Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (‘Campbell v Murchison Metals’)
Barbara Sturt and Others on behalf of the Jaru Native Title Claimants v Baracus Pty Ltd [2014] NNTTA 32 (‘Sturt v Baracus’)
Ben Ward and Others/Swiftel Ltd/Northern Territory [2002] NNTTA 104 (‘Ward v Swiftel’)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustus Nominees’)
Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion v Western Australia’)
Cheinmora v Striker Resources NL & Ors; Dann v Western Australia (1996) ALR 21; [1997] FCA 1147 (‘Cheinmora v Striker Resources’)
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Copley Pty Ltd [2012] NNTTA 109 (‘Barnes v Copley’)
Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Karl Christian Pirkopf [2012] NNTTA 50 (‘Barnes v Pirkopf’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Lungunan v Geotech International’)
Dann v Western Australia (1997) 74 FCR 391; (1997) FCA 332 (‘Dann v Western Australia’)
David Smirke and Others on behalf of the Jurruru People/Western Australia/Aurora Resources Pty Ltd [2009] NNTTA 142 (‘Smirke v Aurora Resources’)
Drake Coal Pty Ltd, Byerwen Coal Pty Ltd/Grace Smallwood & Ors (Birri People)/State of Queensland [2012] NNTTA 31 (‘Drake Coal v Smallwood’)
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91 (‘Murray v Money’)
Jack Dann & Ors on behalf of the Unggumi Ngarinyin People/Western Australia/GPA Distributors Pty Ltd [1995] NNTTA 43 (‘Dann v GPA Distributors’)
James v Western Australia [2002] FCA 1208 (‘James v Western Australia’)
Jaru Native Title Claimants/Western Australia/Golden Granite Pty Ltd/Krama Pty Ltd [2013] NNTTA 123 (‘Jaru v Golden Granite’)
John Watson and Ors on behalf of Nyikina Mangala/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 35 (‘Watson v Brockman Exploration’)
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri Traditional Lands Association v ASJ Resources’)
Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2012] NNTTA 126 (‘Papertalk v State Resources’)
Less Tullock and Others on behalf of Tarlpa/Western Australia/Duketon Consolidated Pty Ltd [2011] NNTTA 124 (‘Tullock v Duketon Consolidated’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’)
Little v Western Australia [2001] FCA 1706 (‘Little v Western Australia’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Parker v Ammon’)
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineraology Pty Ltd [2006] NNTTA 133 (‘Lockyer v Mineralogy’)
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/Brockman Iron Pty Ltd [2010] NNTTA 106 (‘Lockyer v Brockman Iron’)
Mark Lockyer and Others on behalf of Kuruma Marthudunera (Combined)/Western Australia/Iron Duyfken Pty Ltd [2012] NNTTA 1 (‘Lockyer v Iron Duyfken’)
Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Forrest v Aruma Exploration’)
Monadee v Western Australia (2003) 174 FLR 381; [2003] NNTTA 38 (‘Monadee v Cossack Resources’)
Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation) v Zenith Minerals Ltd [2012] NNTTA 77 (‘Mungarlu Ngurrarankatja Rirraunkaja v Zenith Minerals’)
Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham and Gabriel Hazelbane on behalf of the Wagiman, Warai and Jawoyn Peoples/NT Gold Pty Ltd, D J Langley, A J Mazlin and W Falko/Northern Territory [2002] NNTTA 212 (‘Huddleston v NT Gold’)
Raymond Ashwin and Ors on behalf of the Wutha People/Western Australia/Doray Minerals Limited [2013] NNTTA 68 (‘Ashwin v Doray Minerals’)
Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara People’)
Rosas v Northern Territory (2002) 169 FLR 330; [2002] NNTTA 113 (‘Rosas v Northern Territory’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNNTA 18 (‘Silver v Northern Territory’)
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith v Western Australia’)
TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576; [2010] HCA 49 (‘TEC Desert v Commissioner of State Revenue’)
Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’)
Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’)
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (‘Wanjina-Wunggurr v Braeburn Resources’)
Wanparta Aboriginal Corporation/Western Australia/Bradford John Young & Julie Lynne Young [2013] NNTTA 77 (‘Wanparta v Young’)
Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’)
Weld Range Metals Limited/Western Australia/Ike Simpson and Others on behalf of Wajarri Yamatji [2011] NNTTA 172 (‘Weld Range Metals v Simpson’)
Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41 (‘Western Australia v Councillor’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’)
Western Australia v Smith (2000) 163 FLR 32; [2000] NNTTA 239 (‘Western Australia v Smith’)
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169; [2009] NNTTA 49 (‘Western Desert Lands v Western Australia’)
WF (deceased)/Western Australia/Stephen Grant Povey [2001] NNTTA 162 (‘WF v Povey’)
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘WF v Emergent Resources’)
WF (deceased) and others on behalf of the Wiluna Native Title Claimants/Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation/Western Australia/Marford Group Pty Ltd [2012] NNTTA 115 (‘WF v Marford Group’)
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72 (‘Goonack v Geotech International’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG Pilbara’)
Young v Western Australia (2001) 164 FLR 1; [2001] NNTTA 42 (‘Young v Western Australia’)
Representative of the Mr Matthew Kinder, Western Desert Lands Aboriginal
native title party: Corporation
Representatives of the Mr Joshua Berson, State Solicitor’s Office
Government party: Mr Matthew Smith, Department of Mines and Petroleum
Representatives of the Mr Greg Abbott, M&M Walter Consulting
grantee party:
REASONS FOR DETERMINATION
Between 22 February and 29 March 2012, the Government party issued a series of notices under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) in relation to its proposed grant of exploration licences (‘the proposed licences’) to Teck Australia Pty Ltd (‘the grantee party’). Each of the notices included a statement that the Government party considers that the grant attracts the expedited procedure (that is, that the proposed licences are acts that can be done without the normal negotiations required by s 31 of the Act). The tenement number, notification day, size and location of each of the licences are listed in Table 1.
Table 1
Tenement Notification Day Size Location E45/3602 22 February 2012 15 Graticular Blocks (approx 42 km2) 145 km south-east of Telfer, Shire of East Pilbara E45/3088 29 March 2012 200 Graticular Blocks (approx 560 km2) 174 km south-east of Telfer, Shire of East Pilbara E45/3090 29 March 2012 200 Graticular Blocks (approx 560 km2) 204 km south-east of Telfer, Shire of East Pilbara E45/3170 29 March 2012 45 Graticular Blocks (approx 126 km2) 180 km south-east of Telfer, Shire of East Pilbara E45/3294 29 March 2012 73 Graticular Blocks (approx 204 km2) 157 km south-east of Telfer, Shire of East Pilbara E45/3520 29 March 2012 140 Graticular Blocks (approx 392 km2) 22 km south-east of Telfer,
Shire of East PilbaraE45/3521 29 March 2012 195 Graticular Blocks (approx 546 km2) 203 km south-east of Telfer, Shire of East Pilbara
On 22 June and 27 July 2012, the Tribunal received objections to the proposed licences from the Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC (‘the native title party’) on behalf of its members. The native title party is a registered native title body corporate and holds the native title rights and interests on trust for the common law holders identified in James v Western Australia. The proposed licences are all situated within the external boundaries of the determination area, with the exception of E45/3602, part of which falls outside the determination area.
In accordance with what was then standard practice in relation to expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the expedited procedure is attracted. These directions allowed a four month period after the closing date for the lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent.
It is understood that the native title party and the grantee party engaged in negotiations over a period of time in relation to a land access agreement, and the directions were extended on a number of occasions to allow the negotiations to continue. On 27 March 2013, it became apparent that agreement would not be reached, and directions were set for the inquiry.
The Government party provided its supporting documents in relation to each of the proposed licences on 13 May 2013. The native title party was due to provide its contentions and evidence on 20 May 2013; however, the native title party wrote to the Tribunal on 17 May requesting that the Tribunal issue non-disclosure directions pursuant to s 155 of the Act in relation to affidavit evidence it intended to adduce. On 20 May 2013, Member Daniel O’Dea (who was then appointed to the matters) made interim non-disclosure directions for the purpose of considering whether further directions should be made, and the native title party provided its evidence in accordance with those directions by 21 May 2013. Final non-disclosure directions, including directions restricting the disclosure of certain evidence to males, were made on 5 June 2013. The terms of these directions are discussed later in these reasons. The affidavit evidence was provided to the Tribunal on 21 May 2013, accompanied by the native title party’s statement of contentions (‘NTP Contentions’). The grantee party provided a statement on 13 June 2013, and the Government party provided its statement of contentions on 17 June 2013 (‘GVP Contentions’). The native title party provided a statement of contentions in reply on 3 July 2013 (‘NTP Reply’).
A listing hearing was held on 3 July 2013. The parties confirmed they had no further submissions and were content to proceed ‘on the papers’ (that is, without a hearing) in accordance with s 151(2) of the Act.
Following the sad and unexpected passing of Member O’Dea in August 2013 and in the absence of another Tribunal Member who could view the male-restricted evidence, President Raelene Webb QC appointed herself as Member for the purpose of conducting the inquiry. Following consultation with the native title party and the other parties, President Webb issued directions on 8 January 2014 requiring the native title party to provide a statement outlining its concerns and issues without disclosing information that may not be viewed by a female person. Before that statement was provided to the Tribunal, I was appointed as a Member of the Tribunal on 31 March 2014 and subsequently appointed to these matters on 2 April 2014. On that basis, the native title party indicated its intention to rely on the materials already provided to the Tribunal. The other parties have also confirmed their intention to rely on the materials already filed. I have reviewed those materials and I am satisfied it is appropriate to proceed on the papers.
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 determining whether a proposed future act attracts the expedited procedure, the Tribunal is required to make a predictive assessment of the effect the proposed future act is likely to have on the matters identified in s 237. Specifically, the Tribunal must assess the likelihood of the proposed future act giving rise to interference or disturbance of the kind referred to in that section. That assessment is not made on the balance of probabilities, but requires the Tribunal to consider whether there is a real risk or chance of interference or major disturbance arising from the future act (see Smith v Western Australia at [23]; Walley v Western Australia at [8]; Little v Western Australia at [68]-[72]). Though the Act does not impose an onus of proof on any party, the Tribunal is required to adopt a commonsense approach to the evidence (see Ward v Western Australia at 215-218).
In Walley v Western Australia, the Hon C J Sumner, then Deputy President, considered the nature of exploration and prospecting licences, including the activities permitted by such licences, the limits placed on those activities and the standard conditions imposed by the Government party (at [24]-[35]). I adopt Deputy President Sumner’s findings for the purpose of this inquiry, while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the standard conditions imposed on exploration licences have been strengthened (see Tullock v Western Australia at [10]-[12]).
In relation to s 237(a), the following observations can be made:
·The term ‘community and social activities’ is concerned with physical activities. The Tribunal may consider the non-physical or spiritual aspects of the native title party’s community or social activities, but only to the extent those aspects are rooted in physical activities (see Silver v Northern Territory at [50]-[62]; Tullock v Western Australia at [65]-[77]).
·The community and social activities must arise from registered native title rights and interests (see Tullock v Western Australia at [93]-[102]).
·The term ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence must be provided to identify the individuals as a community (see Silver v Northern Territory at [59]).
·The term ‘social activities’ can encompass activities carried on by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (see Silver v Northern Territory at [60]).
·The Tribunal must determine whether the proposed future act is likely to be the proximate cause of interference (see Smith v Western Australia at 451).
·The level of interference with community and social activities must be substantial rather than trivial (see Smith v Western Australia at 451).
·The inquiry under s 237(a) is contextual, and the Tribunal may have regard to other factors that might constrain the native title party’s community or social activities (see Smith v Western Australia at 451).
With respect to issues arising under s 237(b), I note the following principles:
·A site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources NL).
·The interference contemplated by s 237(b) must involve actual physical intervention. When evaluating the degree of interference, the Tribunal must consider the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders (see Silver v Northern Territory at [88]).
·The Tribunal may take into account activities that are likely to interfere with sites or areas outside the boundaries of the proposed future act or claim area, so long as there is a clear nexus between the activities and the issues being considered under s 237 (see Silver v Northern Territory at [35]).
On the interaction between s 237(b) and the site protection regime established under the Aboriginal Heritage Act 1972 (WA) (‘AHA’), I adopt the findings made by the Deputy President Sumner in Parker v Ammon at [31]–[38] and [40]-[41] and those of Member Helen Shurven in Karajarri Traditional Lands Association v ASJ Resources at [48]-[53], [84]-[87] and [91]. I also adopt the findings of Member O’Dea in Cherel v Faustus Nominees at [81]-[91].
With respect to s 237(c), I make the following observations:
·Section 237(c) requires a consideration of the effect of the future act and any rights created by the future act (see Little v Oriole Resources at [41]).
·The assessment of whether the future act is likely to involve, or create rights whose exercise are likely to involve, major disturbance to the land and waters must be evaluated by reference to what is likely to be done, rather than what could be done (see Little v Oriole Resources at [51]).
·The term ‘major disturbance’ is to be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. The concerns of the Aboriginal community, including matters such as community life, customs, traditions and cultural concerns are relevant matters for consideration in evaluating the disturbance (see Little v Oriole Resources at [52]-[54]; Dann v Western Australia at 395, 401 and 413).
·The Tribunal is entitled to have regard to the context of the proposed grant, including the history of mining and exploration in the area, the characteristics of the land and waters concerned and any relevant regulatory regime (see Little v Oriole Resources at [39]).
In its statement of contentions, the native title party submits that it is reasonable in the circumstances to consider the global effect of the proposed licences when applying the criteria in s 237, having regard to the extent of the areas that will be subject to the proposed licences relative to the determination area, the proximity of a community where members of the native title party ordinarily reside, and the characteristics of the land and waters concerned (NTP Contentions, paragraph 3.89). The Government party rejects that contention and argues that, while the Tribunal may have regard to the surrounding areas, each future act must be considered independently (GVP Contentions, paragraph 36). The native title party subsequently stated that it was not suggesting the Tribunal adopt an approach other than one that would require an independent consideration of each future act (NTP Reply, paragraph 3.1). Though I have dealt with the proposed licences in the same set of reasons, I agree that the inquiry under s 237 requires the Tribunal to consider each act independently and have adopted that approach, taking into account the contextual nature of the exercise and the fact that the Tribunal may have regard to features outside the land and waters concerned.
Government party Contentions and Evidence
The Government party provides the following documents in relation to the proposed licences:
·Tengraph plans with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’), including sites listed on the Register of Aboriginal Sites.
·Copies of the tenement applications and Draft Tenement Endorsements and Conditions Extracts.
·The instruments of licence and first schedules listing land included and excluded from the grants.
·Tengraph quick appraisals detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licences.
Proposed E45/3602
The Tengraph quick appraisal establishes that the underlying tenure of the land within proposed E45/3602 is as follows:
·Vacant Crown Land at 95.2 per cent.
·Crown Reserve 34607 (Karlamilyi National Park) at 4.8 per cent.
The quick appraisal indicates that the area within proposed E45/3602 has previously been subject to five exploration licences granted between 1994 and 2006 and either expired or surrendered by 2009, overlapping the area between 0.6 and 73.3 per cent. The entire area was also subject to a temporary reserve between 1959 and 1964.
The report from the DAA Database establishes that no sites registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) or ‘other heritage places’ are located within proposed E45/3602.
Proposed E45/3088
The Tengraph quick appraisal establishes that the underlying tenure of the land within proposed E45/3088 is as follows:
·Vacant Crown Land at 73.6 per cent.
·Land Act Reserve at 26.6 per cent.
Though the quick appraisal does not identify the reserve, it is clear from the accompanying map and references in the Draft Tenement Endorsement and Conditions Extract that it covers the Canning Stock Route.
The quick appraisal indicates that the area within proposed E45/3088 has previously been subject to 17 exploration licences granted between 1993 and 2006 and either expired or surrendered by 2009, overlapping the area between less than 0.1 and 31.9 per cent. The area has also been subject to two temporary reserves, one of which covered the entire area between 1959 and 1964 and the other overlapping at 11.5 per cent between 1964 and 1965.
The report from the DAA Database establishes there are five registered sites within proposed E45/3088:
·Nguitata (Site ID 6443) – closed access – no gender restrictions – mythological.
·Poobapooba (Site ID 6444) – closed access – no gender restrictions – meeting place, camp.
·Poobapooba (Site ID 6445) – closed access – no gender restrictions – ceremonial.
·Wantili (Site ID 6446) – closed access – no gender restrictions – ceremonial, mythological, artefacts / scatter – meeting place, camp, water source.
·Canning Stock Route / Well 26 (Site ID 12130) – closed access – no gender restrictions – mythological, artefacts/scatter.
The report also indicates the following ‘other heritage places’:
·Kalypa (Site ID 10485) – insufficient information – open access – no gender restrictions – camp, water source
·Yilkarrpa/Well 25 (Site ID 10486) – insufficient information – closed access – no gender restrictions – artefacts/scatter, camp, water source.
·Well 24 North (Site ID 12107) – open access – no gender restrictions – man-made structure, artefacts/scatter.
Proposed E45/3090
The Tengraph quick appraisal establishes that the underlying tenure of the land within proposed E45/3090 is as follows:
·Vacant Crown Land at 86.2 per cent.
·Land Act Reserve at 13.8 per cent.
Again, it is clear from the accompanying map and references in the Draft Tenement Endorsement and Conditions Extract that the reserve covers the Canning Stock Route.
The quick appraisal indicates that the area within proposed E45/3090 has previously been subject to 16 exploration licences granted between 1993 and 2002, each of which was expired, surrendered or forfeited by 2003 and had encroached on the area by between less than 0.1 and 28 per cent. The area has also been subject to two temporary reserves, one of which covered the entire area between 1959 and 1964 and the other overlapping at 19.5 per cent between 1964 and 1965.
The report from the DAA Database establishes that Canning Stock Route / Well 26 (Site ID 12130) is also located within proposed E45/3090, in addition to the following ‘other heritage places’:
·Kurlilu (Site ID 10452) – insufficient information – open access – no gender restrictions – camp, water source
·Rarrki/Well 27 (Site ID 10491) – insufficient information – closed access – no gender restrictions – ceremonial, mythological, artefacts/scatter, camp, water source.
Proposed E45/3170
The Tengraph quick appraisal establishes that the underlying tenure of the land within proposed E45/3170 is as follows:
·Vacant Crown Land at 86.9 per cent.
·Land Act Reserve at 13.1 per cent.
Again, it is clear from the accompanying map and references in the Draft Tenement Endorsement and Conditions Extract that the reserve covers the Canning Stock Route.
The quick appraisal indicates that the area within proposed E45/3170 has previously been subject to eight exploration licences granted between 1993 and 2002, each of which was expired, surrendered or forfeited by 2003 and had encroached on the area by between less than 0.1 and 71.7 per cent. The entire area was also subject to a temporary reserve between 1959 and 1964.
The DAA Database report establishes that Canning Stock Route / Well 26 (Site ID 12130) is also located within proposed E45/3170.
Proposed E45/3294
The Tengraph quick appraisal establishes that the underlying tenure of the land within proposed E45/3924 is vacant crown land.
The quick appraisal indicates that the area within proposed E45/3294 has previously been subject to seven exploration licences granted between 1993 and 2002 and either expired or surrendered by 2009, overlapping between less than 0.1 and 30.6 per cent. The entire area was also subject to a temporary reserve between 1959 and 1964.
The report from the DAA Database establishes that no registered sites or ‘other heritage places’ are located within proposed E45/3294.
Proposed E45/3520
The Tengraph quick appraisal establishes that the underlying tenure of the land within proposed E45/3520 is vacant crown land.
The quick appraisal indicates that the area within proposed E45/3520 has previously been subject to eight exploration licences granted between 1993 and 1998 and surrendered by 1999, overlapping between 2 and 38.2 per cent. The entire area has also been subject to two temporary reserves, the first between 1959 and 1964 and the second for six months in 1965.
The report from the DAA Database establishes that no registered sites or ‘other heritage places’ are located within proposed E45/3520.
Proposed E45/3521
The Tengraph quick appraisal establishes that the underlying tenure of the land within proposed E45/3521 is as follows:
·Vacant Crown Land at 87 per cent.
·Land Act Reserve at 13 per cent.
The quick appraisal indicates that the area within proposed E45/3521 has previously been subject to 12 exploration licences granted between 1995 and 1998 and either expired or surrendered by 2003, overlapping between 0.2 per cent and 28.7 per cent. The area has also been subject to two temporary reserves, one of which covered the entire area between 1959 and 1964 and the other overlapping at 75.5 per cent for six months in 1965.
The report from the DAA Database establishes that no registered sites or ‘other heritage places’ are located within proposed E45/3521.
Conditions and Endorsements
The Draft Tenement Endorsement and Conditions Extracts indicate that the proposed licences will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tullock v Western Australia at [11]-[12]). A further condition will be imposed on the grant of proposed E45/3602 requiring the consent of the Minister responsible for the Mining Act and the Minister for Environment before entering or commencing any prospecting or exploration activity on Karlamilyi National Park. In relation to the remaining licences, a further condition will be imposed prohibiting any exploration activities on Canning Stock Route Reserve that restrict the use of the reserve.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder;
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3.The Licensee [sic] attention is drawn to the provisions of the
· Waterways Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
4.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoW’s relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6.The abstract of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway; and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed ground Water Areas the following endorsement applies:
8.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
The Government party has indicated that it also intends to impose a condition requiring the grantee party to offer a regional standard heritage agreement (‘RSHA’) at the request of the native title party. The condition is proposed in the following terms:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Martu, the applicants in the determined Federal Court application no. WAD 6110 of 19998 (WC 96/78), such request being sent by pre-paid post to reach the Licensee’s address, c/- Greg Abbott no more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Martu, the Central Desert Regional Standard Heritage Agreement.
Native Title Party Contentions and Evidence
The native title party relies on the following evidence in support of its objections:
·The affidavit of Muuki Taylor, Wakka Taylor, Nancy Taylor and Milton Chapman, sworn on 11 May 2013 (‘Martu Elders Affidavit’).
·The affidavit of Pamela Jeffries, Amy French, May Brooks, Peggy Peterson, Jessie Colley, Lily Long and Beth Jeffries, sworn on 16 May 2013 (‘Martu Women Affidavit’).
·The affidavit of Baker Lane, Teddy Biljabu, Mitchell Biljaba, Bruce Thomas, Norman Sammy, Peter Tinker, Milton Chapman and Dennis Jeffries, sworn on 16 May 2013 (‘Martu Men Affidavit’).
·The affidavit of Brian Samson, sworn on 16 May 2013 (‘Samson Affidavit’).
·The affidavit of Professor Robert Tonkinson, sworn on 20 May 2013 (‘Tonkinson Affidavit’). Annexed to the Tonkinson Affidavit is a photocopy of Professor Tonkinson’s book, The Mardu Aborigines: Living the Dream in Australia’s Desert (second edition, 1991) and the Martu Native Title Claim Connection Report prepared by Professor Tonkinson, Stephen Bennetts and Sarah Bell in May 2011 (‘Connection Report’).
The native title party also relies on a Community Layout Plan report for the Parnngurr (Cotton Creek) Community published by the Department of Planning in February 2007 (‘Parnngurr Report’).
As noted above, the affidavit material (apart from the Samson Affidavit) was provided on the basis that it would be subject to non-disclosure directions. Mr Samson’s affidavit was provided in support of the proposed directions, as was the affidavit of Maria Lamattina sworn on 17 May 2013. The Samson Affidavit is also relied on in support of the native title party’s substantive submissions. Although the directions are aimed at limiting the disclosure of the affidavit material, s 162(2) of the Act requires (and the directions expressly permit) the Tribunal to state any findings of fact on which this determination is based. Hence, though I am cognisant of the Martu people’s concerns about the dissemination of secret and sacred information, I refer to the contents of the affidavits to the extent necessary to explain the factual basis of my decision.
In relation to the Martu Elders Affidavit, the deponents describe themselves as Martu elders and members of the native title party, and set out the particular responsibilities of each deponent. In relation to the Martu Women Affidavit, the deponents state that they are senior Martu women and members of the native title party, and also set out their particular responsibilities. In relation to the Martu Men Affidavit, the deponents also describe themselves as Martu elders and members of the native title party. The deponents of the Martu Men Affidavit state that, as Martu Elders, they have authority to speak for Martu country and the area covered by the proposed licences. On this basis, I accept that the deponents of these affidavits have the appropriate authority to speak on behalf of the native title party in relation to the proposed licence areas, though I note the Martu Elders concede that they do not speak for the part of the women’s songline that runs through the proposed licence areas. Professor Tonkinson states that, based on his work with the Martu people, he believes that the deponents are connected to and collectively have the authority to speak for the relevant areas, and the matters deposed to are an accurate representation of Martu beliefs and culture (Tonkinson Affidavit, paragraphs 11-18). The deponents’ evidence, insofar as it is an accurate statement of their beliefs and concerns and kinds of activities in which Martu people participate in the vicinity of the proposed licences, is not contested.
The Government party contends that, while some assistance can be drawn from the Tonkinson Affidavit, it cannot be relied upon to supply information which does not appear in the primary evidence of the native title party. Moreover, the Government party argues that the primary evidence of the native title party should be relied upon to the exclusion of Professor Tonkinson’s in relation to the conduct of social or community activities and the presence of sites of particular significance (GVP Contentions, paragraph 29). In support of these contentions, the Government party relies on the Tribunal’s decision in WF v Emergent Resources as affirmed in Mungarlu Ngurrarankatja Rirraunkaja v Zenith Minerals. In reply, the native title party contends that the approach adopted by the Tribunal in those decisions does not require reliance on the evidence of the traditional owners to the exclusion of Professor Tonkinson’s evidence. Rather, the decisions affirm the Tribunal’s usual approach in relation to expert anthropological evidence. It was accepted in those matters that expert anthropological evidence may assist the Tribunal in several respects, including by helping to explain or contextualise the evidence of Aboriginal witnesses.
The Tribunal takes a commonsense approach to the evidence. Consistent with that approach, the Tribunal accepts that the best evidence of the native title party’s traditions is from a person or persons who have the traditional knowledge and authority to speak for the relevant area or site (see Huddleston v NT Gold at [14]). However, that does not require the Tribunal to dismiss or set aside evidence that would otherwise have probative value. Consequently, I have given weight to the Tonkinson Affidavit where appropriate.
Grantee Party Contentions and Evidence
The grantee party states that it intends to rely on the Government party’s contentions. In addition, the grantee party provides a statement of its intentions in relation to the proposed licence, signed on its behalf by its representative, Mr Greg Abbott.
The statement makes the following points:
·The grantee party will not exclude any community activities upon the proposed licences unless during a particular activity it is considered temporarily unsafe for the conduct of community activities, and will not restrict access to the area by traditional owners except as necessary for safety purposes.
·The grantee party will comply with the AHA and is aware of the penalties that can be imposed. The grantee party will report any Aboriginal sites identified as required by the AHA.
·The grantee party has never been prosecuted in relation to breaches of the AHA.
·The grantee party contends that the exploration activity will not constitute major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to land or waters concerned.
·The grantee party will restore land immediately after carrying out its exploration programme on the proposed licences. Ground disturbance will be kept to a minimum and the land will be restored as close as possible to the condition prior to exploration being undertaken by the grantee party or its agents.
·The grantee party endorses the Government party’s proposed conditions.
Materials produced by the Tribunal
On 14 August 2013, the Tribunal circulated to parties a map of the proposed licences produced by the Tribunal’s Geospatial Services unit (‘Tribunal Map’), noting its intention to rely on the map in its deliberations and seeking comment from parties. The Government party stated that it had no issue with the map and no response was received from the grantee party.
On 21 August 2013, the native title party wrote to the Tribunal by email stating it did not object to the Tribunal’s use of the Tribunal Map in its deliberations, or to the Tribunal referring to the map in its reasons for decision, on the basis that:
·the map is not the evidence of a party, nor does the map replace or modify the evidence of any party;
·the use of the map by the Tribunal is as an ‘aide-memoire’ that brings together some relevant spatial information, including information provided by way of the evidence of the parties; and
·the native title party has not checked the accuracy of every item of spatial information shown on the map, relies on the evidence presented by the native title party, and is not to be taken as accepting the complete accuracy of the map by agreeing to its use by the Tribunal.
The native title party also notes that the Tribunal Map does not differentiate between registered Aboriginal sites and ‘other heritage places’ listed on the DAA Database; many of the sites are not numbered, making it difficult to locate information about these particular sites or places; and many of the registered sites and other heritage places are located close to each other or overlap, making it difficult to identify which reference number relates to the relevant place or site.
Though I have referred to the Tribunal Map in my deliberations, I have taken into account the native title party’s reservations about its use.
Interference with community or social activities – s 237(a)
Contentions and evidence in relation to s 237(a)
The native title party contends that the proposed licence areas are the subject of current community and social activities by members of the native title party. According to the native title party, the activities encompass their religious and cultural activities and activity associated with their law and custom, including the regulation of those laws and customs. These activities include camping, hunting and gathering bush tucker, conducting traditional burning, ceremony, births and burials, and conducting traditional meetings. In addition to the matters disclosed in the affidavit material, the native title party relies on its registered native title rights and interests in support of its contention that its members actively occupy the proposed licence areas in the exercise of their exclusive native title rights and interests and as members of the relevant community (NTP Contentions, paragraph 4.3).
The evidence of the native title party establishes the following:
·Members of the native title party reside in the Parnngurr Community, which is located approximately 30 kilometres west of proposed E45/3602. An ATSIC Environmental Needs Survey conducted in 2004 identified the community’s population as 104 people; however, the Parnngurr Report observes that the population tends to fluctuate, and can increase to between 300 and 500 people during law time (Martu Elders Affidavit, paragraph 8; Parnngurr Report, paragraph 6.2).
·Members of the native title party engage in a range of caring for country activities in the proposed licence areas, including activities such as maintaining soaks and rockholes, traditional burning as well as ceremonial and ritual activities and by mere physical presence (Martu Elders Affidavit, paragraph 19; Martu Women Affidavit, paragraphs 17-18; Tonkinson Affidavit, paragraphs 44-45).
·A range of activities involving the physical maintenance of country (including the maintenance of rockholes and traditional burning) are carried on through a ranger program (Martu Elders Affidavit, paragraphs 19 and 30). It is not clear whether these activities are carried on exclusively through the ranger program.
·Traditional burning activities are conducted between May and August each year and can cover large areas of country (Martu Elders Affidavit, paragraphs 19 and 31).
·Members of the native title party use the proposed licence areas to teach young people about Martu law and culture, particularly in places with religious or cultural significance (Martu Elders Affidavit, paragraphs 19, 21, 25 and 27; Martu Women Affidavit, paragraph 17).
·Members of the native title party visit the proposed licence areas to care for country and for educational purposes ‘every other week’ (Martu Elders Affidavit, paragraph 21).
·Members of the native title party hunt and gather bush tucker in the proposed licence areas, particularly after burning has been carried out (Martu Elders Affidavit, paragraphs 28 and 32).
·Members of the native title party camp in particular places throughout the proposed licence, sometimes for up to a week at a time (Martu Elders Affidavit, paragraphs 9, 21 and 25; Martu Women Affidavit, paragraph 9).
·Areas for hunting and camping are typically located near water sources (such as creeks, rockholes, soaks and claypans) or places with religious or cultural significance (Martu Elders Affidavit, paragraphs 9 and 25; Martu Women Affidavit, paragraphs 17-18 and 26).
·Members of the native title party conduct ceremonies, hold meetings and perform traditional songs and dances in the proposed licence areas, particularly between December to March, which is designated as law time (Martu Elders Affidavit, paragraphs 9 and 11; Martu Women Affidavit, paragraphs 17 and 27; Martu Men Affidavit at 10, 11 and 30; Tonkinson Affidavit, paragraph 33).
·There are burial and birth sites throughout the proposed licence areas (Martu Elders, paragraphs 23 and 31; Martu Women Affidavit, paragraphs 25, 33, 46 and 51; Martu Men Affidavit, paragraphs 11, 19 and 27).
·There are identifiable sites within or in the vicinity of the proposed licence areas associated with specific activities, namely:
o Wandili in proposed E45/3088, which is used for camping, hunting and gathering bush tucker (Martu Elders Affidavit, paragraph 9; Martu Women Affidavit, paragraph 43; Martu Men Affidavit, paragraph 19);
o a japiya (or increase) site north of Well 24 near proposed E45/3088 and proposed E45/3521, where bush onions are gathered (Martu Women Affidavit, paragraph 36);
o camping areas and law grounds near Lake Auld and Lake Winifred, north of proposed E45/3170 and proposed E45/3090 (Martu Men Affidavit, paragraph 10);
o Well 27, near proposed E45/3090, a camping area where law business is conducted (Martu Men Affidavit, paragraph at 11);
o Well 26 in proposed E45/3088 or proposed E45/3170, a camping area that is also used for law business (Martu Men Affidavit, paragraph 30);
o Wanakalpu in proposed E45/3090, which is used a camp site (Martu Women Affidavit, paragraph 40);
o a camping site situated near a hill in proposed E45/3520 (Martu Women Affidavit, paragraph 42); and
o Karado, a camp site near proposed E45/3088 (Martu Women Affidavit, paragraph 43).
·There are places where community and social activities are carried on by members of the native title party that cannot be readily identified by non-Martu people (Martu Women Affidavit, paragraphs 24, 36 and 42).
The native title party contends that there is a close relationship between the community and social activities carried on by the native title holders and Martu law and culture, including secret men’s and women’s sites, burial sites, ceremonial places and artefact scatters associated with those activities. The native title party argues that these community and social activities also encompass the religious and cultural activities of the native title holders and other activities associated with their laws and customs, including the regulation of those laws and customs (NTP Contentions, paragraph 4.6). In this regard, I note Professor Tonkinson’s observation that ‘[t]he Martu way of life, and community and social activities associated with particular areas, are also inextricably linked to care of country, and maintenance and protection of sites and songlines’ (Tonkinson Affidavit, paragraph 93).
The native title party also contends that, by allowing the grantee party to access and conduct exploration activity in the proposed licence areas, including the use of vehicles and other machinery, the grantee party will interfere with access by members of the native title party, and consequently their ability to conduct community and social activities in and over those areas (NTP Contentions, paragraph 4.7). In terms of access, I note the statement of the Martu Elders that they ‘frequently use the roads, Canning Stock Route and tracks that run through the Tenement areas to get to other towns and communities’ (Martu Elders Affidavit, paragraph 36). The Martu Women also state that travel is not restricted to roads and Martu travel off-road throughout the proposed licence areas to access camping places, rockholes and sacred places (Martu Women Affidavit, paragraph 61). The Martu Women depose that, if prevented from getting to important places, ‘we will not be able to show our young people the old ways, to teach them about the songs and spirit that made our country, to find bush tucker, to make wanna and wirni’ (Martu Women Affidavit, paragraph 60). The Martu Women also speak about travelling along the path of a women’s songline, which traverses the proposed licence areas (Martu Women Affidavit, paragraph 19 and 58).
Professor Tonkinson deposes to the existence of waterhole routes, which he says he elicited from Martu claimants in 1995. These routes are depicted on a map contained in an appendix to the Connection Report. Professor Tonkinson says there are at least four such routes crossing over or in close proximity to many of the proposed licences, though he notes that it is ‘by no means an exhaustive list’ of these routes (Tonkinson Affidavit, paragraph 51). According to Professor Tonkinson, the routes ‘represent frequently travelled paths across country linking water sources, and would also contain burial places, materials, artefacts, camping areas and ceremonial sites’ within the proposed licence areas (Tonkinson Affidavit, paragraph 52). It is difficult to determine from the map the precise intersection between the waterhole routes depicted and the boundaries of the proposed licences. Moreover, the map includes a disclaimer that the routes shown on the map ‘do not purport to be accurate depictions of locations’ and are ‘schematic representations of waterhole routes known to the Martu claimants in the Martu claim area.’ Nevertheless, I accept it is reasonably likely that one or more of these routes pass through or at least close to the proposed licence areas, though I am unable to pinpoint which of the proposed licences they actually traverse.
The Government party accepts that members of the native title party carry on community activities such as caring for country; hunting and gathering bush tucker, traditional medicines and tools; holding traditional ceremonies, meetings and performing traditional songs and dances; camping; and traditional burning activities in the area of the proposed licences. However, the Government party submits that the evidence regarding burials and births does not establish any ‘activities’ to which s 237(a) applies. As there is no evidence of any activities that are carried on in relation to these sites, I accept that submission. Nevertheless, based on the evidence before me, I am satisfied that members of the native title party carry on the range of activities described at [58] in the area of the proposed licences. However, insofar that the native title party relies on the existence of the native title party’s registered native title rights and interests, I have only taken them into account to the extent that the community and social activities of which there is evidence are a manifestation of those rights and interests (see Western Australia v Thomas at 166-167; Re Koara People at 81-82; Drake Coal v Smallwood at [77]).
The native title party contends that, if it is demonstrated that traditional punishments can result from a failure to attend to obligations to look after country consequent upon the conduct of exploration activities, this could constitute direct interference with community or social activities, even in circumstances where the RSHA applies (NTP Contentions, paragraph 3.16). In support of this contention, the native title party relies on the Tribunal’s decision in Champion v Western Australia at [66]. The Government party submits (at GVP Contentions, paragraph 46) that the Tribunal’s conclusion in that matter was that no such interference would arise, in part, due to the presence of a condition requiring an RSHA to be offered. The native title party rejects that interpretation of the decision, and argues that it was based on the absence of evidence that traditional punishment had been imposed in similar situations in the Goldfields area, and where the native title party had conceded that obligations to look after country could be met by a proper heritage survey, which the native title party in this matter has not (NTP Reply, paragraph 4.1).
I accept the native title party’s interpretation of Champion v Western Australia. I also accept there is evidence that a failure to carry out obligations to care for country could lead to traditional punishment (see for example Martu Women Affidavit, paragraphs 32 and 54; Tonkinson Affidavit, paragraphs 42 and 92). However, that will not always support a finding that the expedited procedure does not apply. Section 237(a) requires ‘an evaluative judgment that the act is likely to be the proximate cause of the apprehended interference’ (see Smith v Western Australia at [28]). Though French J (as he then was) warned against the application of a ‘precise and semantic cause and effect analysis in every case’, what this means in the present context is that the evidence must tend to support the conclusion that the act will result in traditional punishment, and in turn directly interfere with the conduct of the native title party’s community or social activities. This is consistent with the observations of Deputy President Sumner in Walley v Western Australia, where he said:
Spiritual beliefs which give rise to obligations to look after country may have consequences for traditional custodians under Aboriginal customary law if those obligations are not fulfilled. There may be dispute and dissension amongst a claimant group because of it. But to satisfy s 237(a), there must be evidence of the consequences of this concern or dispute or dissension for the community or social activities of members of the claim group.
It is possible to speculate about the effect that traditional punishment might have on particular communities or family groups. However, in the absence of evidence about the possible consequences of traditional punishment for the native title party’s community or social activities, I am unable to conclude that the proposed licences will interfere with community or social activities in this way.
On the issue of interference, the Government party contends (at GVP Contentions, paragraph 50) that, to the extent that the evidence demonstrates that members of the native title party carry out any community or social activities in the proposed licence areas, there is not likely to be direct interference with those activities for the following reasons:
·The grantee party has stated, in effect, that any ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites.
·The grantee party has indicated its willingness to enter into an RSHA type agreement with the native title party. The Government party submits that this is a relevant factor in determining whether there is likely to be interference with community or social activities, and indicates the grantee party’s willingness to consult with the native title party to avoid interference.
·The proposed licence areas have been subject to prior mineral exploration, and it is likely that this exploration has affected, and continues to affect, the extent to which community or social activities can be carried on in the relevant areas.
·Though the grantee party and the native title party may come across one another from time to time in the course of their activities in the proposed licence areas, it is not apparent that the community or social activities of the native title party will thereby be prevented or disrupted to a significant extent.
·Hunting and mineral exploration are, by their nature, inherently capable of coexistence.
·Given the limited nature of the rights conferred by the proposed licences, there is little prospect of the native title party’s access being prevented in any substantial way, and the grantee party has stated that it will not restrict access to the areas unless particular exploration activities would make it temporarily unsafe for the native title party.
·To the extent activities conducted by the native title party consist of law ceremonies, the activities of the grantee party will only potentially intersect with them in the limited period during which law business is held. However, the Government party concedes (at paragraph 50(g)) that it may be assumed there is a small possibility that the grantee party could inadvertently approach near a ceremony while it is occurring.
In reply, the native title party contends that the grantee party has not stated that ground disturbing activities will be conducted in the way suggested by the Government party and, in relation to community or social activities, has only stated that it will not exclude any community activities unless it is considered temporarily unsafe for those activities (NTP Reply, paragraph 4.2). The native title party also contends that the RSHA is principally concerned with site protection and is not relevant to interference with community or social activities. In this regard, the native title party argues that the grantee party has not entered into an agreement with the native title party that requires the grantee party to consult with members of the native title party in relation to community or social activities, nor indicated any intention to undertake such consultation (NTP Reply, paragraph 4.3). Furthermore, the native title party submits that the Government party’s contention regarding the likely effect of the grantee party’s activities should not be accepted as the grantee party has not provided a work program or any details of the nature and location of its intended exploration activities (NTP Reply, paragraph 4.5). In relation to prior mineral exploration, the native title party submits that the Government party has not provided information about the nature, extent or location of any prior exploration activities or the extent to which they have affected (and continue to affect) the conduct of the native title party’s community or social activities (NTP Reply, paragraph 4.4).
In relation to community and social activities, the grantee party states it will not exclude any community activities in the proposed licence areas unless during a particular activity it is considered temporarily unsafe for those activities to be conducted, or restrict the access of traditional owners except as required for that reason.
Consideration of s 237(a)
The circumstances of this matter make the task of determining the likelihood of direct interference with the native title party’s community or social activities particularly difficult. On the one hand, there is great deal of evidence to support the finding that members of the native title party carry on a range of community and social activities in the area where the proposed licences are situated. On the other hand, due in part to the way in which this inquiry has been conducted and the material that has been presented, the evidence provided by the native title party in relation to those activities concerns an area of approximately 2,430 square kilometres. Consideration must also be given to evidence that suggests the nearest community has a population of between 100 and 500 at any given time. In this context, even if I were to accept that members of the native title party visit the area frequently, it is unlikely that they would encounter the grantee party in the conduct of its exploration program on a regular basis. Regard should also be had to the fact that the proposed licence area comprises approximately 0.02 per cent of the total determination area, though I should note that the proposed licences are situated in an area that lies between culturally significant lakes to the north and south. I make particular note of Lake Disappointment, which is located approximately 30 kilometres from the nearest licence and was the subject of the Tribunal’s determination in Western Desert Lands v Western Australia.
Given the size of the proposed licence areas, both in absolute terms and in comparison with the size of the determination area, it is unlikely that the grant of the proposed licences will interfere directly with hunting and gathering activities generally. Though the Martu Elders refer to the risk that the grantee party’s activities will scare animals from the area and have an adverse effect on the ability of the native title party’s members to hunt, there is no evidence to substantiate that concern. Considering the size of the area and probable coverage of the proposed exploration, it seems unlikely that the grantee party’s activities would have a substantial effect on the distribution of wildlife in the area, even assuming the grantee party make full use of the rights conferred under the proposed licences (I note that a similar conclusion was reached by Member Shurven in Papertalk v State Resources at [41]). By the same measure, I do not consider that the exercise of the grantee party’s rights under the proposed licences is likely obstruct the native title holders’ use of particular roads, tracks or routes in a way that would substantially interfere with the community or social activities of the native title holders. Even if the grantee party were to exercise those rights in a way that might create an obstacle (for example, if the grantee party were to dig a pit or trench over a specific section of track), the proposed conditions would require the grantee party to rehabilitate the disturbance. In this sense, any interference would be strictly temporary in nature.
However, the evidence does establish the existence of places within several of the proposed licences that are associated with particular activities, including camp sites, hunting areas and law grounds, and indicates that the native title holders have responsibilities to care for and protect significant areas and sites within the proposed licence areas. For example, the Wandili claypan in proposed E45/3088 is the site of sacred men’s and women’s places, but is also used as a camping and hunting area. In this respect, I have had regard to Professor Tonkinson’s evidence that exploration activities which disturb a particular site ‘would also affect the underlying spiritual basis of the sites, and the capacity of Martu to perform physical and spiritual activities and rituals in relation to the site’ (Tonkinson Affidavit, paragraph 87). As the evidence establishes that these places are not readily identifiable by non-Martu people, particularly those considered ngulu (secret or dangerous), I accept that, in the absence of consultation, the grantee party may inadvertently interfere with the community or social activities carried on at these places, whether by restricting the access of native title holders to, or physically disturbing, the places in question or disrupting the activity itself. This is accepted by the Government party, who acknowledge that, in the absence of any cooperation between the native title party and the grantee party, there is a possibility, albeit small, that the grantee party could inadvertently approach near a ceremony while it is occurring (GVP Contentions, paragraph 50(g)).
Although the Government party accepts this possibility in the absence of any cooperation between the native title party and the grantee party on the issue, it argues that the grantee party has evinced an intention to comply with its legal obligations and to respect and accommodate Aboriginal cultural issues. On this basis, the Government party submits that an inference is open that the grantee party is not likely to conduct its operations in a way that interferes with ceremonial activities, so long as it is made aware of the location and timing of these activities. This overstates the effect of the grantee party’s statement, as it makes no reference to accommodating the native title party’s cultural issues, though it does indicate an intention not to exclude the native title party’s activities unless required in the interests of safety. Nevertheless, the Government party contends that the grantee party’s willingness to enter into ‘an RSHA type agreement’ can be taken as an indication of its intention to consult with the native title party in relation to community or social activities (GVP Contentions, paragraph 50).
In support of that contention, the Government party cites the Tribunal’s decision in Cherel v Faustus Nominees. However, in that matter, the Tribunal did not rely on the RSHA but the existence of detailed evidence from the grantee party in relation to its exploration program, its previous negotiations with the native title party and its commitment to working with the traditional owners to address their concerns. In the present matter, it is clear from the Tribunal’s records of successive status conferences that the parties were negotiating an agreement. Though it is understood that the negotiations fell over due to differences over compensation, the content of that agreement is not known to the Tribunal. Unlike Cherel v Faustus Nominees, the grantee party has not provided any indication that it will consult with the native title party or traditional owners about the possible effect of its exploration program on the native title party’s community or social activities, or how it intends to do so. Although the RSHA may be regarded as providing a mechanism for consultation with respect to sites, there is no specific evidence that the grantee party has offered or is willing to enter an RSHA with the native title party (though the grantee party’s statement endorses the proposed conditions of grant, the Government party had not indicated its intention to apply the RSHA condition when the statement was provided to the Tribunal).
As the Government party plans to impose the proposed RSHA condition, the native title party will have the option of enforcing the RSHA. However, the native title party dismisses the protective effect of the RSHA, contending that the provisions requiring consultation, but not consent, prior to an application under s 18 of the AHA are not aimed at preventing interference with community or social activities, and arguably enable such interference (NTP Contentions, paragraph 4.9). I deal with the specific issue of the RSHA’s interaction with s 18 of the AHA below. Nevertheless, the Tribunal has accepted that the RSHA may have some relevance to s 237(a), even though it is ‘designed principally to deal with issues arising under s 237(b)’ (see Sturt v Baracus at [55], citing Tullock v Western Australia at [48]). In Tullock v Western Australia at [54], Deputy President Sumner accepted that the RSHA would provide some capacity for the native title party to meet its responsibilities to care for country, particularly in relation to sites, though he observed that it does not necessarily provide a mechanism for dealing with all aspects of this responsibility.
Insofar as the evidence establishes that the native title holders’ community and social activities are intimately connected with specific places within the proposed licence areas, and especially where those places can be considered areas or sites of particular significance in accordance with the traditions of the native title holders, it is also relevant to the inquiry under s 237(b). Consequently, if the grantee party’s activities are likely to interfere with an area or site of particular significance, it may also interfere with the carrying on of community or social activities associated with that site. In either case, the expedited procedure would not apply. However, I accept that some of the places identified in relation to community or social activities may not constitute areas or sites of particular significance. Similarly, while many of these places are likely to be protected under the AHA, it may be that some of these places do not fall within the definition of an Aboriginal site in s 5 of the AHA.
Subject to my findings below regarding unauthorised access to specific areas or sites, I accept that any disturbance to these places would likely trigger the consultation processes under the RSHA. This would require the grantee party to consult with the native title holders if it planned to conduct ground disturbing activities in a place where community or social activities commonly took place. Although the RSHA is primarily concerned with site protection, I am satisfied that, given the grantee party’s stated intention not to restrict the activities of the native title holders except as required for safety purposes, it is reasonable to infer that the grantee party would take into account any information regarding the community or social activities carried on at the site and take steps to avoid interference with those activities. Though I accept there may be some level of interference if the grantee party approaches a ceremony while it is happening, I consider this possibility to be quite remote and the interference is likely to be trivial.
The evidence of the native title party, particularly that of the Martu Elders, also establishes that the native title holders are regularly engaged in caring for country activities, such as cleaning out soaks and rockholes and traditional burning activities, throughout the proposed licence areas. Though these activities appear to be carried on through a ranger programme, I accept they are nonetheless activities of a communal or social nature, given their broader religious and social function. There may be Martu people who are not involved in the ranger programme but also engage in these activities; however, that is not apparent from the evidence. In this respect, I note Professor Tonkinson’s observation that responsibilities to care for country can also be met in other ways, such as through physical presence, ceremony and ritual (Tonkinson Affidavit, paragraph 45). The Martu Women also describe looking after country by travelling and camping in the area and by singing the songs of the jukurrpa, or dreaming tracks (Martu Women Affidavit, paragraph 9).
For similar reasons as the hunting and gathering activities, I am not satisfied that the grantee party’s activities are likely to interfere with caring for country activities in a substantial or more than trivial manner, at least insofar as they involve the maintenance of soaks and rockholes. As for traditional burning activities, I note that the evidence suggests these activities can cover large areas of country. Though this is not defined in precise terms, I accept there is a real likelihood, given the nature of the activity, that the grant of the proposed licences will interfere with the carrying on of the native title holders’ traditional burning activities if the grantee party does not consult with the native title holders before entering the area, at least during the times of year when burning is conducted. According to the Martu Elders, ‘if the mining company were working on the [proposed licence areas] during the time when we do our burning, they would be in danger if they did not talk to us first’ (Martu Elders Affidavit, paragraph 33). The Martu Elders says that this ‘would cause problems for us as we would not be able to make the bush tucker come back strong the following year’ (Martu Elders Affidavit, paragraph 34).
Professor Tonkinson states that ‘it is critically important to the Martu that cultural conventions concerning access to country are followed’ (Tonkinson Affidavit, paragraph 35). These conventions are discussed in further detail at paragraphs 36 to 42 of Professor Tonkinson’s affidavit, and Martu beliefs about the consequences that flow from breaching Martu law are discussed at paragraphs 84-90. This is consistent with the evidence given by the traditional owners. Given the existence of these conventions and Martu beliefs about the possible consequences of breaching them, it is reasonable to expect that the native title holders would be reluctant to start burning in an area if there was a chance it could endanger the grantee party. The possibility that the grantee party might be in the area at a given time may directly interfere with the decision to carry out traditional burning, which would have a direct effect on the ability of the native title holders to observe their cultural obligations and carry on activities such as hunting and gathering that depend on intermittent burning. This involves a different question than whether or to what extent the grantee party is likely to interfere with other community or social activities carried on in the proposed licence areas. What is relevant here is that, in the absence of consultation about the grantee party’s intended exploration, it may be impossible for the native title holders to predict when and where the grantee party might be at any given time. That difficulty does not require the conclusion that the risk of interference cannot be measured and is therefore remote. Rather, it draws attention to a real and potential risk if activities were undertaken by the grantee party without prior consultation with the native title holders.
The Central Desert RSHA does require the native title party to be notified where the grantee party intends to carry on Non-Ground Disturbing Activity. The notice must include a 1:250,000 topographic map showing where the Non-Ground Disturbing Activity is to take place and the estimated time of the Non-Ground Disturbing Activity. This must be provided either annually or at least 21 days prior to the Non-Ground Disturbing Activity being undertaken. However, the RSHA does not require the grantee party to consult with the native title party. In this context, the provision of notice indicating the estimated time that such activities will be undertaken is likely to be inadequate from the point of view of ensuring the grantee party’s presence in any of the proposed licence areas does not interfere with the planning and execution of traditional burning activities, whether that notice is provided annually or 21 days before the activity commences. Unless specific arrangements are made about the interaction of these activities, I consider there is a real risk of interference with the ability of the native title holders to carry on this activity in a way that is consistent with their cultural obligations. This is not a case of indirect interference, but something that may directly affect the planning and implementation (that is, the carrying on) of traditional burning activities.
This is not to say that traditional burning activities are entirely unregulated. The Bush Fires Act 1954 (WA) (‘Bush Fires Act’) provides that a person must not set fire to bush during a restricted burning time unless that person has a permit in writing from a bush fire control officer or chief executive officer of the local government and complies with prescribed conditions, though the person issuing the permit may modify or dispense with these conditions and incorporate additional requirements and directions (ss 18(6), 18(7)). ‘Bush’ in this context is defined to include ‘bush, plants, stubble, scrub, and undergrowth of any kind whatsoever whether alive or dead’ (s 7). In the Shire of East Pilbara, the entire year is designated as a restricted burning time.
The prescribed conditions impose certain requirements on the holder of a permit to give notice of its intention to burn bush and make arrangements for the management and control of the fire. Relevantly, the prescribed conditions require the permit holder to notify the chief executive officer or bush fire control officer of the local government; the owner or occupier of all adjoining land; a forest officer if the bush is located within three kilometres of forest land; and an authorised officer or employee of each ‘notifiable authority’ (Bush Fires Regulations 1954 (WA), reg 15B). An occupier of land is defined as ‘a person residing on the land or having charge or control of it’ and would therefore not include the holder of a mining tenement (see Adamson v Hayes (1973) 130 CLR 276 at 288-289; TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576 at [28]-[36]).
I acknowledge that additional requirements or directions could be incorporated into the permit to minimise the risk to those undertaking mineral exploration, including by requiring notice to be given to any person holding a mining tenement in the relevant area. However, in the absence of such requirements or directions, I am not satisfied the regime under the Bush Fires Act will minimise the risk to the grantee party and, in turn, the risk of interference with traditional burning activities.
It is possible that s 211 of the Act would have the effect of disregarding any restrictions imposed by the Bush Fires Act. This would depend on whether traditional burning is a ‘cultural or spiritual activity’ for the purposes of s 211(3)(d) and whether, as a matter of statutory construction, the permit is only to be issued for research, environmental protection, public health or public safety purposes (see s 211(1)(ba) of the Act). As I have concluded that the requirements of the Bush Fire Act would not minimise the risk of interference with traditional burning activities, it is unnecessary for me to decide these issues.
In the circumstances, I am of the view that there is a real likelihood of interference within the meaning of s 237(a) unless the normal negotiation process is followed.
Interference with sites or areas of particular significance - s 237(b)
Contentions and evidence regarding the existence of areas or sites of particular significance
The native title party contends that the proposed licence areas are intersected or affected by songlines and associated sites and areas of particular significance. The native title party contends that many of these sites and areas are not readily identifiable by non-Martu people, and include gender-restricted sites (NTP Contentions, paragraph 4.11). The native title party submits that the proposed licence areas contain ‘site rich’ areas and other areas of particular significance that militate against the application of a ‘presumption of regularity’ in relation to the proposed licences (NTP Contentions, paragraph 4.13). The native title party contends that the fabric of the country within, and in close proximity to, the proposed licence areas is imbued with such particular significance that any entry onto the relevant land which has not been agreed with the native title party would be likely to result in interference within the meaning of s 237(b) (NTP Contentions, paragraph 4.16). Furthermore, the native title party submits that its members have obligations to maintain and protect sites of particular significance, as well as responsibilities to members of the wider Western Desert Cultural Bloc, and that any damage or disturbance to significant sites or areas would have repercussions for members of the native title party and the integrity of the wider Aboriginal society of which they form part (NTP Contentions, paragraphs 4.14 and 4.15).
The evidence provided by the native title party supports the existence of songlines, dreaming stories and associated sites and areas within the proposed licence areas. Specifically, the evidence establishes that the area in which the proposed licences are situated is traversed by a men’s songline and a women’s songline. There is also evidence that a dreaming story travels between the lakes to the north and south of the area. According to the Martu Men, the proposed licences are located in an area that is ‘like a border where three Tjukurrpa [dreaming tracks] meet’ and is therefore ‘some of the most important country in Martu country (Martu Men Affidavit, paragraph 18). The Martu Men say that the area is also the boundary of three Martu language groups. This is said to extend ‘from about the junction of the Canning Stock Route and the Talawana Track’ (Martu Men, paragraph 18). I note that the map annexed to the Martu Elders, Martu Men and Martu Women affidavit’s indicate that the Canning Stock Route intersects with Talawana Track approximately 20 kilometres south of proposed E45/3602 and E45/3294 and approximately 35 kilometres west of proposed E45/3088. There is also evidence of a number of unspecified sites and areas associated with the songlines and other dreaming stories.
Consideration of s 237(b)
On the basis of the evidence regarding the existence of jukurrpa tracks and other dreaming stories in the area of the proposed licences and the proximity to significant lakes to the north and south, I accept that the area is generally significant to the native title holders. However, I do not consider that the entire area is one of particular significance to the native title holders.
In the case of the sites referred to in [88] above, I accept there is sufficient evidence to demonstrate the particular significance of these sites in accordance with the native title party’s traditions. This is accepted by the Government party and has not been contested by the grantee party. Although disputed by the Government party, I also find that Wanakalpu is a site of particular significance, as it is identified as an area containing places that are sacred to men and others that are sacred to women and connected to the women’s songline.
With respect to Rartki, I note that the Martu Men describe the site as a law business place. However, though the Martu Women describe the site as a sacred men’s area, there is little to distinguish it from other law grounds said to exist around Lake Auld and Lake Winifred. The Martu Elders say that Well 27 is a sacred place, but do not give any explanation that would support a finding regarding the particular significance of the site. Similarly, I have not found that Kadaro, Nyalbi, Gunadilbi or Ngurridadu are sites of particular significance, as there is little evidence regarding their significance in Martu law and custom beyond the fact they are linked to unspecified dreaming stories or, in the case of Gunadilbi, located in an area associated with a particular dreaming.
I acknowledge that the Martu Women describe Mandiliri as a place that is sacred and secret to men. However, as Mandiliri is said to be a place where women cannot go, there is some doubt as to whether the Martu Women have the proper authority to give evidence about the site’s significance. As Deputy President Sosso observed in Huddleston v NT Gold at [14], applying the principles outlined by Nicholson J in Little v Western Australia, ‘only a person with the requisite traditional knowledge or authority can satisfactorily explain in given circumstances, the particular sacredness of a site in accordance with traditional laws and customs.’ In that matter, the Tribunal did not accept the evidence of a male traditional owner regarding the particular significance of a women’s site where he had also given evidence that men could not speak for the site. Although the Martu Women do not state that women cannot talk about Mandiliri, it is unlikely they have the requisite traditional knowledge given the site is described as a ngulu place and is likely to attract similar protocols to other gender-restricted sites about which evidence has been given in this matter. In the absence of any reference to Mandiliri in the affidavits of the Martu Men and Martu Elders, I do not consider there is adequate support for a finding that Mandiliri is a site of particular significance, particularly where little detail is given about its relationship to the traditional laws and customs of the native title holders. I have reached the same conclusion in relation to the sacred men’s area in proposed E45/3602.
Professor Tonkinson identifies three areas as ‘site complexes’, which he says is a term used to describe a number of sites in close proximity. According to Professor Tonkinson, individual locations within these site complexes should be regarded as part of a greater whole and ought not to be considered separately. While I have already accepted Wantili as a site of particular significance, Professor Tonkinson refers to the existence of two others, Pupapupa and Kartarru. Pupapupa is said to encompass the two registered sites identified as Poobapooba and the Wantili registered site, whereas Kartarru is said to qualify as a site complex because of the extent of campsites and artefact scatters and its status as part of a specific songline and associated rituals and former repository of sacra. However, there are several factors that weight against the acceptance of Professor Tonkinson’s evidence about Pupapupa and Kartarru. First, though Professor Tonkinson says that he had access to details of the sites on the Register of Aboriginal Sites, including the underlying reports, little information is given about the nature of the sites. While I accept these reports are confidential, I am unable to rely on a second-hand summary. Professor Tonkinson states that many of the sites on the Register are known to him and he has visited some of them with Martu People, but it is not clear whether this includes the sites associated with Pupapupa. Similarly, the sources on which Professor Tonkinson relies in relation to Kartarru are not entirely clear. While Professor Tonkinson states that he has had access to records of sites identified and recorded through consultations with traditional owners, it is unclear whether the records formed the basis of his evidence about Kartarru, or whether his knowledge about the site complex was acquired through his own research and consultation with traditional owners.
Second, and more fundamentally, apart from the entries on the Register of Aboriginal Sites, the only evidence about the site complexes is in the Tonkinson Affidavit. Importantly, there is no reference to the sites in the affidavits of the traditional owners. Though I accept the term ‘site complex’ is an analytical category more commonly used by anthropologists than traditional owners, the names ‘Pupapupa’ and ‘Kartarru’ and their variants are not mentioned in the evidence of the traditional owners, and none of the sites they describe have the same features as those outlined by Professor Tonkinson. As Member O’Dea observed in Campbell v Murchison Metals, the probative value of anthropological evidence about the existence of significant sites may be limited where Aboriginal witnesses are in a position to give evidence on such matters but fail to do so.
Professor Tonkinson refers to several factors that can influence the decisions of Martu people to identify particular sites. However, considering the extent of the information provided by the traditional owners in this matter, I do not find this explanation particularly compelling. This is especially so given the references in the traditional owner evidence to Wantili, which Professor Tonkinson describes as closely associated with sites in the Pupapupa complex. I also note there is a degree of inconsistency in identifying Pupapupa and Wantili as separate site complexes, while describing Pupapupa as a site that incorporates Wantili, though I accept there may be an explanation for this. Nevertheless, in light of the factors identified above, I have not given significant weight to Professor Tonkinson’s evidence regarding Pupapupa and Kartarru and do not accept that they are areas or sites of particular significance.
In relation to Jiman and the burial site at Well 25, the Tribunal has previously found that burial places may constitute sites of particular significance even in the absence of specific evidence linking the sites to the traditional laws and customs of the native title holders (see Western Australia v Councillor at [43]; Lockyer v Brockman Iron at [35]). Most recently, President Webb considered evidence in Sturt v Baracus at [61]-[65] regarding the existence of burial sites and concluded that they did not ‘stand out’ from the general background of other sites and the country as a whole. In doing so, President Webb referred to the Tribunal’s decision in Jaru v Golden Granite, where Member Shurven accepted the particular significance of specific burial sites based on the family’s special connection with the area. This is consistent with Wanparta v Young, where Member O’Dea found that a cemetery was a site of particular significance, having relied on evidence that the native title holders had responsibility for the cemetery. Though there is a clear connection between the burial sites at Jiman and Well 25 and the Biljabu family, they do not appear from the evidence to stand out in any particular way. Given the size of area affected by the proposed licences and the history of use and occupation, it is likely there are numerous other burial sites and remains. However, apart from the fact these sites have been specifically identified, there is nothing to suggest they are sites of particular significance.
With regard to the waterholes and soaks identified by the Martu Women, I accept they are possibly sites of significance. However, in the absence of more precise information about the location of these sites, I am unable to find that they are sites of particular significance. In circumstances where the location of a site has not been strictly defined, the Tribunal is unlikely to accept that an area or site is of particular significance unless the evidence is otherwise compelling (see Wanjina-Wunggurr v Braeburn Resources at [41-[43]). Although the evidence suggests that the sites are associated with and located along the women’s songline and there is some evidence as to the path of the songline, the evidence does not allow the sites to be located with any greater degree of exactness than they can be found somewhere on that line within the specified tenements. In contrast, I have accepted that Pintu Pintu is a site of particular significance even though it is only identified as a hill in proposed E45/3294, as the Martu Women have provided compelling evidence regarding its connection to the women’s songline.
To the extent there are sites on the Register of Aboriginal Sites that are not mentioned in the evidence provided by the native title party, I have not found these to be sites of particular significance. In this regard, I note that registration under the AHA is not determinative of whether an area or site is of particular significance in accordance with the traditions of the native title holders (see Western Australia v Thomas at 174).
In relation to sites that may exist outside, but in close proximity to, the proposed licence areas, I note the observations of Deputy President Sosso in Silver v Northern Territory at [35] to the effect that the Tribunal is entitled to consider the effect of off-site activities as long as there is a clear nexus between those activities and the issues being considered under s 237(b). As no evidence has been provided regarding the location or nature of these sites, it is unnecessary for me to consider whether such a nexus exists.
On the issue of interference, I accept that Wandili, Tiwa, Kurkurrnyina, Budajarrabili, Wanakalpu, Pintu Pintu, Mangu Mangu, Talinguru and Chorar are all sites to which access is restricted under Martu law and custom to people of a certain gender or status. I also accept the evidence establishes that access to these sites without consultation with the relevant native title holders may constitute interference for the purposes of s 237(b). In the circumstances, I am not satisfied that the regulatory regime or the RSHA will be sufficient to prevent the real risk that the grantee party will interfere with these sites, whether inadvertently or otherwise. The grantee party has provided no indication of how it intends to manage that risk and, in my view, there is a real likelihood of interference unless the grantee party consults with the native title holders. This is particularly the case for proposed E45/3088, where there is an evident concentration of sites and areas of particular significance to the native title holders.
In relation to the bush onion site, I do not accept that mere access is likely to cause interference with the site. The Martu Women state that, if the site ‘gets damaged, that could mean we would have no more minyara [bush onion]’ (Martu Women Affidavit, paragraph 36). The Martu Women also say that the site must be protected, though they do not specify what kind of protection is necessary. It is reasonable to infer that ground disturbing activity may interfere with the site; however, there is little basis for me to conclude that lower impact activities such as rock chip or soil sampling would have the same effect. In the circumstances, I am satisfied that, if the native title party were to enforce the RSHA condition, the likelihood of interference with the bush onion site would be significantly reduced.
In terms of the likelihood that the grant of the proposed licences will interfere with the sites that have been identified, I accept there is a real chance of interference to the extent the sites are located within any one of the proposed licences. Accordingly, I accept that:
·proposed E45/3088 is likely to interfere with Wandili and Kurkurrnyina;
·proposed E45/3090 is likely to interfere with Budajarrabili and Wanakalpu;
·proposed E45/3294 is likely to interfere with Pintu Pintu and Talinguru; and
·proposed E45/3521 is likely to interfere with Mangu Mangu.
In the Government party’s submission, the evidence establishes that Tiwa falls within the area of proposed E45/3088 (GVP Contentions, paragraph 64). In reply, the native title party contends that the evidence indicates that Tiwa ‘may in fact be within [proposed] E45/3170’ and in any event is close to, or may straddle, the boundary of proposed E45/3170 and E45/3088 (NTP Reply, paragraph 5.5). I agree that Tiwa appears to be situated on or very close to the border between proposed E45/3170 and E45/3088. On which side of that boundary Tiwa falls is difficult to resolve on the material before me. Nevertheless, if Tiwa does in fact fall on the side of proposed E45/3088, I accept that its proximity to E45/3170 and the Canning Stock Route, which is likely to be used as an access route to E45/3170, means there is a real risk that the grant of proposed E45/3170 will interfere with the site.
The evidence also suggests that Tiwa ‘affects’ proposed E45/3090, E45/3170, E45/3521 and E45/3088. Similarly, there is evidence that Kurkurrnyina ‘affects’ proposed E45/3170 and Chorar ‘affects’ proposed E45/3088, E45/3170 and E45/3521. However, the affidavits of the traditional owners do not explain what is meant by a site ‘affecting’ a tenement. Some guidance on this issue is provided by Professor Tonkinson at paragraph 59 of his affidavit, where he states that:
…finer discriminations relating to boundaries are very difficult for them when the tract of country concerned lacks the kinds of distinctive feature that would certainly have been named and have mythology, songs and the like attached to it. Consequently, areas which may appear to be located outside a registered site boundary may nonetheless affect that site, the significance of which radiates beyond that boundary.
I accept Professor Tonkinson’s evidence regarding the interconnectedness of Martu culture. I also accept that it is possible for interference with one site to have an effect on sites connected to it through myths, rituals or songs (see Tonkinson Affidavit, paragraphs 87-88). However, the inquiry under s 237(b) is directed at physical interference (see Silver v Northern Territory at [88]). Although the nature of interference may change from case to case depending on the nature of the site, it must nevertheless have a physical element. In this respect, the interference will tend to be contiguous with the area or site. Consequently, activities carried on near a site but do not actually disturb it in a physical sense will not constitute interference for the purposes of s 237(b), even though it may be considered interference from an Indigenous perspective. The boundaries of the registered site do in fact extend over a section of proposed E45/3090. However, I acknowledge that it is a closed site and as such the boundaries recorded on the Register of Aboriginal Sites are likely to be larger than the site itself. No evidence has been provided to support the contention that the boundaries of the site extend that far. While there is a real risk that activities carried out by the grantee party in relation to proposed E45/3170 or E45/3088 may interfere with Tiwa, I do not consider that the grant of proposed E45/3521 or E45/3090 are likely to have that effect.
In the case of Chorar and Kurkurrniya, I accept that it is more a question of proximity than connectedness with other sites. In this regard, although Chorar’s location has not been precisely defined, the evidence establishes that it is near the boundary between proposed E45/3088, E45/3170 and E45/3521. Similarly, while there is evidence that Kurkurrniya is located in proposed E45/3088, it suggests that it is also near proposed E45/3170. In the circumstances and given the nature of these sites, I consider there is a real chance that the grant of these tenements will cause interference.
In conclusion, I find that the grant of proposed E45/3088, E45/3090, E45/3170, E45/3521 and E45/3294 are likely to result in interference with areas or sites of particular significance in accordance with the traditions of the native title holders. I do not find that the grant of proposed E45/3502 and E45/3602 are likely to cause interference of the kind contemplated by s 237(b).
Major disturbance to land and waters - s 237(c)
Contentions and evidence in relation to s 237(c)
The native title party argues that the activities permitted by the proposed licences are likely to result in soil and water erosion, changes to land contours, damage to bush and other natural habitats, interruption and diversion of natural water flows and impacts on the natural ambience of the land. The native title party submits that, in determining whether the grant of the proposed licences is likely to involve major disturbance, the Tribunal should have regard to the fact the proposed licence areas include numerous sites and areas of particular significance, including sensitive and gender-restricted sites, which are connected to underlying jukurrpa that connect the proposed licence areas to other areas in Martu country; the proximity of the Parnngurr community; and the relationship between the community and social activities carried on by members of the native title party and sensitive or gender-restricted sites within the proposed licence areas (NTP Contentions, paragraph 4.18). The native title party contends that, having regard to those matters and the law and custom of the native title holders, even activities that could be described as ‘low impact exploration’ could reasonably be regarded as major disturbance to the land and waters concerned (NTP Contentions, paragraph 4.19).
In the affidavit of the Martu Elders, they say the grantee party ‘must talk to [the right people] so they know the places that the [grantee party] can and cannot go’ (Martu Elders Affidavit, paragraph 16). The Martu Men also refer to the need to show the grantee party where it is safe to go and where it is not safe to go (Martu Men Affidavit, paragraph 34). Professor Tonkinson also gives evidence that ‘it is critically important to the Martu that cultural conventions concerning access to country are followed’ (Tonkinson Affidavit, paragraph 35). The Martu Elders state that, without consultation, the grantee party ‘can just go through the land and do what they want and that isn’t right. They have to show respect for us’ (Martu Elders Affidavit, paragraph 22). The Martu Elders also speak about the ‘need to keep our camping places and the places of our ancestors safe from damage’ and say that ‘only we can show the mining company where these are’ (Martu Elders Affidavit, paragraph 38). The Martu Women depose that the area in which the proposed licences are situated ‘was a big living area’ and ‘our ancestors are buried all through these [proposed licence areas]’ (Martu Women Affidavit, paragraph 46). The Martu Women state that the grantee party ‘would not know where they could go, and they could disturb our ancestor’s remains. This would make us very sad’ (Martu Women Affidavit, paragraph 47).
The Government party contends (at GVP Contentions, paragraph 81) that the grant of the proposed licences are not likely to involve major disturbance for the following reasons:
·The grantee party has stated that most of the proposed exploration activities will be low-impact and non-intrusive, and any ground disturbing activities are intended to be conducted in a way which will not have an adverse impact on heritage sites and which will respect local Aboriginal concerns. I note that the grantee party only states that ground disturbance will be ‘kept to a minimum’ and the ground ‘will be restored as close as possible to its original state’.
·The exercise of rights conferred by the exploration licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment. It is likely these regimes will together and separately avoid any major disturbance to land and waters.
·Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration.
·The area of the proposed licences has been subject to prior mineral and possibly mining activity, and the activities contemplated by the grantee party would be the same as, or no more significant than, the previous use of the area. I have already considered this issue at [120]-[123] above.
·It does not appear that the area of the proposed licences has any particular characteristics that would be likely to result in major disturbance to land and waters arising given the activities being proposed by the grantee party.
The grantee party states that ground disturbance will be kept to a minimum. The grantee party states it will restore land immediately after carrying out its exploration programme and will restore it as close as possible to its condition prior to exploration.
Consideration of s 237(c)
The issue of whether the proposed licences are likely to involve, or create rights whose exercise is likely to involve, major disturbance is determined by reference to the expectations of the entire community (see Little v Oriole Resources at [52]-[54]). The Tribunal will also consider the particular concerns of the Aboriginal community and the local population, and this may include consideration of the proposed licences in the context of matters such as community life, customs, traditions and cultural concerns (see Dann v Western Australia at 394, 401 and 413). In this matter, I have had particular regard to the fact that the Parnngurr community is located only 30 kilometres west of proposed E45/3602. Nevertheless, the starting point and precondition of the inquiry is the existence of direct physical disturbance (see Rosas v Northern Territory at [84]). Accordingly, the Tribunal may only take into account the cultural concerns of the native title holders when they flow from the nature and extent of the physical disturbance (see Lockyer v Mineralogy at [67]).
To the extent that the native title party’s evidence concerns access to particular areas or sites within the proposed licences, I have already dealt with that matter in the context of s 237(b). Insofar as the evidence concerns access to the area generally, the issue appears to be one of respect for Martu law and custom and the native title holders’ connection to the land. In both cases, the native title party’s concerns appear to relate to the implications and sensitivities arising from unauthorised access by the grantee party rather than any specific physical disturbance to the land and waters associated with the exercise of the grantee party’s rights under the proposed licences. As the Tribunal has held in previous matters, cultural concerns about unauthorised access alone cannot form the basis of a finding that major disturbance is likely to occur (see Lockyer v Mineralogy at [67]; Goonack v Geotech International at [44]). This is so even if the access might lead to traditional punishment and other implications for the local Aboriginal community.
The native title party argues that, having regard to the laws and customs of the native title holders, even activities that would otherwise be characterised as ‘low impact exploration’ would nevertheless cause major disturbance to the land or waters. Whether so-called ‘low impact exploration’ is likely to disturb any of the land or waters concerned is a matter to be determined by reference to the evidence presented in a given case. In relation to the country generally, I do not accept that the evidence suggests that low-impact exploration activities would involve major disturbance and, apart from exceptional cases, the Tribunal has generally considered that exploration activity is unlikely to cause major disturbance to land or waters (see Champion v Western Australia at [77]). In the case of many of the specific areas or sites identified by the native title party’s evidence, the evidence has been limited to the risk of interference through unauthorised access.
There are two notable exceptions. First, the Martu Women state that the bush onion site must be protected, as there will be no more minyana if the site gets damaged (Martu Women Affidavit, paragraph 36). As discussed above at [136], I consider that the RSHA provides adequate protection against interference with this site and I am not satisfied that the grant of proposed E45/3088 is likely to involve major disturbance. Second, the Martu Men describe Wandili as a ‘no go’ area and say that ‘no exploration or mining can happen there: Martu have to make sure that no exploration or mining happens in that area of Wandili’ (Martu Men Affidavit, paragraph 19). Stated in such broad terms, it could be inferred that this would extend to activities such as water, rock chip or soil sampling. However, in the context of the site’s description as a ‘no go’ area and the evidence regarding other sensitive and gender-restricted sites, it is reasonable to infer that this concern merely relates to access. As I have concluded that the grant of proposed E45/3088 is likely to cause interference for the purposes of s 237(b), it is unnecessary for me to resolve this issue.
The native title party contends that the impact of exploration on particular sites should be evaluated in the context of the community and social activities carried on by the native title holders and their relationship with specific areas and sites in the proposed licence areas. I have discussed this point in relation to s 237(a) and I accept disturbance to places that are associated with specific activities may have an effect on the community life of the native title holders. However, acceptance of that possibility does not require the conclusion that exploration activity will necessarily involve a major disturbance to the land and waters concerned. Though I accept that ground disturbing activities might have an effect on these places, I am satisfied that the RSHA would provide adequate protection. In relation to lower impact activities, such as rock chip or soil sampling, it is difficult to imagine circumstances where these activities would disturb a place to such a degree that it would have a significant effect on the community life of the native title holders. In any event, the native title party has not provided any examples where this might occur.
There are several references in the affidavit material regarding the existence of burial sites and the need to protect the remains of ancestors (see for example Martu Elders Affidavit, paragraph 23). It appears to me that this is consistent with the general significance of the area, the distribution of camping and ceremonial sites and other evidence regarding the historical occupation and use of the area. In the circumstances, I accept there is likely to be a significant distribution of burial sites and remains through the proposed licence areas, particularly in areas traditionally used for camping and ceremony. To my mind, disturbing these sites would constitute major disturbance for the purposes of s 237(c), not only in the context of the laws and customs of the native title holders but also by the standards of the general community. However, as I have noted above, the native title party has the opportunity of enforcing the standards set out in the RSHA. As that agreement requires a survey to be conducted where the grantee party wishes to undertake ground-disturbing activities, I am satisfied that any burial sites will be identified, in which case steps can be taken to avoid disturbance.
The native title party has not indicated the existence of any special environmental, geological or environmental features to which I should have regard. Although the evidence refers to the significance of Lake Winifred and Lake Auld to the north of the proposed licences and Lake Disappointment to the south, I do not consider that the grantee party’s activities will affect these features. I also note that the Canning Stock Route traverses several of the proposed licences and is likely to have caused some degree of disturbance to the land affected.
The proposed conditions require the grantee party to cap, fill or make safe all surface holes drilled for the purpose of exploration immediately after completion. The conditions also require the grantee party to backfill and rehabilitate all disturbances to the land to the satisfaction of Department of Mines and Petroleum’s Environmental Office, who must give written approval before the grantee party can make use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised requirement for surface disturbance or excavate costeans. There is no evidence that the grantee party will fail to comply with these conditions or the other regimes that will regulate the exercise of the grantee party’s rights under the proposed licences.
Taking these matters into account, I find that the grant of the proposed licences is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
Determination
The determination of the Tribunal is that the grant of exploration licences E45/3602, E45/3088, E45/3090, E45/3170, E45/3294, E45/3520 and E45/3521 to Teck Australia Pty Ltd are not acts attracting the expedited procedure.
James McNamara
Member
10 June 2014
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