WF (Deceased) and Others on behalf of the Wiluna Native Title Claimants v Formula Resources Pty Ltd and Another
[2014] NNTTA 37
•15 April 2014
NATIONAL NATIVE TITLE TRIBUNAL
WF (Deceased) and Others on behalf of the Wiluna Native Title Claimants v Formula Resources Pty Ltd and Another [2014] NNTTA 37 (15 April 2014)
Application No: WO2013/0371
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
WF (deceased) and others on behalf of the Wiluna Native Title Claimants (WC1999/024) (native title party)
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Formula Resources Pty Ltd (grantee party)
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The State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 15 April 2014
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 32(3), 151(2), 155, 162(2), 237
Mining Act 1978 (WA), ss 58, 66
Mining Regulations 1981 (WA), reg 20
Aboriginal Heritage Act 1972 (WA)
Cases:Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustus Nominees’)
Crowe and Others v Western Australia and Another (2008) 218 FLR 429; [2008] NNTTA 71 (‘Crowe v Western Australia’)
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’)
Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37 (‘Freddie v Western Australia’)
Tullock and Others v Western Australia and Another (2011) 257 FLR 320; [2011] NNTTA 22 ('Tullock v Western Australia')
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘Karajarri v ASJ Resources’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 ('Parker v Ammon')
Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Forrest v Aruma Exploration’)
Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027 (‘Parker v Western Australia’)
Silver and Others v Northern Territory and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Western Desert Lands Aboriginal Corporation v Western Australia and Another (2009) 232 FLR 169; (2009) 2 ARLR 214; [2009] NNTTA 49 (‘Western Desert Lands Aboriginal Corporation v Western Australia’)
WF (deceased) on behalf of Wiluna People v Western Australia [2013] FCA 755 (‘Wiluna v Western Australia’)
WF (deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘Wiluna v Emergent’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (‘Yindjibarndi v FMG’)
Representatives of the Mr Mike Allbrook, Central Desert Native Title Services
native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services
Representatives of the Mr Trevor Creewel, State Solicitor’s Office
Government party: Mr Matthew Smith & Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Greg Abbott, M&M Walter Consulting
grantee party:
REASONS FOR DETERMINATION
On 28 November 2012, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’/‘the NTA’) of its intention to grant exploration licence E38/2763 (‘the proposed licence’) to Formula Resources Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA) (‘Mining Act’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, the grant can be done without the normal negotiations required by s 31 of the Act).
An objection to the inclusion of the expedited procedure statement may be made to the National Native Title Tribunal (‘the Tribunal’) by any person who, four months after the notification day, is a registered native title claimant in respect of the relevant land or waters (see s 29(2)(b)(i), s 32(3) and s 30(1) of the Act). (If there is no registered native title claimant when the s 29 notice is given, the application containing the native title claim must be filed sometime before the end of three months after the notification day included in the s 29 notice (see s 30(1)(a)(i)). The notification date for this matter was 28 November 2012. The three month period for filing a native title claim was 28 February 2013. The four month period for lodgement of objections closed on 28 March 2013.
The proposed licence is wholly within the Wiluna native title claim, which was a registered native title claim from 24 September 1999 (WC1999/024; WAD6164/1998). No other native title claim was filed, or objection lodged, in respect of this proposed licence. A conditional determination was made in the Federal Court by McKerracher J on 29 July 2013, which included areas within the Wiluna native title claim (see Wiluna v Western Australia). It will become effective once the court makes a determination as to the prescribed body corporate for the determination area. I note that a prescribed body corporate is yet to be nominated as at the date of this decision, and so the persons whose names appear on the Register of Native Title Claims as the applicant for this native title claim group remain the native title party for the purposes of future acts under the Act, until a prescribed body corporate is registered.
On 27 March 2013, WF (deceased) and others on behalf of the Wiluna native title claimants (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in respect of the proposed licence. The Tribunal accepted the application on 12 April 2013 and held a preliminary conference on 30 April 2013. At the preliminary conference, the grantee party indicated it was seeking an agreement with the native title party which would dispose of the objection, and the matter was adjourned to a status conference on 4 September 2013.
When the Tribunal reconvened the matter on 4 September, there was no indication parties had reached agreement or were close to doing so. Accordingly, the Tribunal set directions on 6 September 2013 requiring parties to provide contentions and supporting documentary evidence for an inquiry to determine whether the proposed licence attracts the expedited procedure. I was appointed by President Raelene Webb QC to constitute the Tribunal for the purpose of the inquiry on 24 October 2013.
In accordance with the directions, the following documents were provided:
·The Government party’s supporting documents, on 7 October 2013, comprising:
o a Tengraph plan indicating topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence;
o a search extract from the Aboriginal Heritage Inquiry System maintained by the Department of Aboriginal Affairs (DAA);
o a copy of the proposed licence application and the proposed endorsements and conditions of grant;
o the instrument of licence and first schedule listing land included and excluded from the grant; and
o a Tengraph quick appraisal.
·The native title party’s statement of contentions, on 11 November 2013, accompanied by:
othe affidavit of Mr Frankie Wongawol, sworn 5 November 2013 in support of the native title party contentions (‘Wongawol Affidavit’); and
oan undated and unsigned statement of Mr Morris Wongawol, on 11 November 2013 (‘Wongawol Statement’).
·The grantee party’s statement of contentions, on 18 November 2013, accompanied by a statement the grantee party provided with its application for the proposed licence as required under s 58 of the Mining Act (‘Section 58 Statement’).
·The Government party’s statement of contentions, on 25 November 2013, with an amended version being provided on 3 December 2013, and accompanied by:
oa map of the proposed licence produced by the Department of Mines and Petroleum (‘DMP’);
oa Tengraph Quick Appraisal;
oa search extract from the Aboriginal Heritage Inquiry System;
othe grantee party’s Section 58 Statement;
oa draft tenement endorsements and conditions extract; and
o a statutory declaration made by Mr Gregory Victor Abbott on 17 October 2012 as agent for the grantee party.
The native title party requested the Tribunal make directions under s 155 of the Act to limit the disclosure of Mr Frankie Wongawol’s Affidavit and Mr Morris Wongawol’s Statement. The request was made on the basis that the documents contain information which relates to a site of significance to male members of the claim group. The proposed directions required, among other things, that access to the documents be restricted to male representatives and staff of the grantee party, the Government party and the Tribunal. However, the proposed directions were subject to the proviso that they would not prevent the Tribunal from disclosing an adequate basis for its decision, or the present Member conducting the inquiry from considering the documents to the extent required to make the decision. I was satisfied that the proposed directions were appropriate, and issued directions in the terms proposed on 18 November 2013. No party took issue with this approach.
A copy of a map prepared by the Tribunal’s Geospatial Services was provided to all parties on 22 January 2014, noting the Tribunal’s intention to rely on the map unless any party took issue. No party took issue with the map.
At listing hearing held on 12 December 2013, parties agreed the matter could be determined ‘on the papers’ (that is, without a hearing). I am satisfied that the objection can be adequately determined in this manner (as per s 151(2) of the Act).
Legal principles
Section 237 of the Act provides:
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 relation to the legal principles to be applied in this matter, I adopt the principles outlined by President Webb QC in Yindjibarndi v FMG at [15]-[21].
Section 32(3) of the Act allows the native title party to object to the inclusion of the expedited procedure statement. The native title party indicate in their contentions that they do not seek to pursue the objections they asserted in their original objection application in relation to s 237(a) and s 237(c). Section 32(4) of the Act requires the Tribunal, as the arbitral body, to determine whether the act is an act attracting the expedited procedure, in light of s 237 of the Act. The criteria in s 237 define what an act attracting the expedited procedure is. Whether or not the native title party offers contentions on all limbs of s 237, the Tribunal must have regard to each of those limbs in the context of the material before the Tribunal. In this matter, there is no evidence or contentions from the native title party on which I could base a finding in relation to s 237(a) or s 237(c) that the act is one which does not attract the expedited procedure. On that basis, I find the act is unlikely to interfere directly with the carrying on of community and social activities, and unlikely to cause major disturbance to land or waters. However, the native title party has provided evidence and contentions in relation to s 237(b) and as such, the remainder of this decision relates to a consideration of that information, in the context of s 237(b) of the Act.
Evidence in relation to the Proposed Act
Government Party
The documents provided by the Government party establish the underlying tenure of the area covered by the proposed licence is as follows:
·Pastoral Lease 3114/1069 (Niminga) at 90.2 per cent.
·Vacant Crown land at 9.8 per cent.
Government party documentation also establishes that seven exploration licences were granted between 1986 and 2004 which overlapped the proposed licence area by between 1.2 and 100 per cent and are all now surrendered. A temporary reserve covering the entire area was also granted in 1959 and cancelled in 1964.
The Tengraph quick appraisal provided by the Government party identifies the following features within the proposed licence: a track; Mt Throssel; a well/bore with windmill; three cliffs/breakaways/rockridges; one non-perennial lake; 32 minor non-perennial watercourses; and one spring/soak/rockhole/waterhole (Bulljah Pool).
The extract from the Aboriginal Heritage Inquiry System, maintained by the DAA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’), shows there are no registered sites within the proposed licence. However, the extract does indicate the existence of one ‘other heritage place’, being site ID 25671 (Lake Carnegie), which is listed as a mythological and male only access site. Tribunal mapping indicates that the site approximately corresponds to the geographical area also known as Lake Carnegie. The mapping also indicates that the site boundary overlaps, and the lake is adjacent to, the proposed licence boundary in the south-west corner of the proposed licence. The boundaries of the site are slightly larger than the lake, but the explanatory information provided in the DAA extract indicates that this may be due to its designation as a closed-access site. In this decision I will distinguish the site (or ‘other heritage place’) and the geographical feature of the Lake by referring to the former as ‘Lake Carnegie heritage place’ and the latter as ‘Lake Carnegie’.
The Tengraph plan provided by the Government party does not indicate any Aboriginal communities within or in the vicinity of the proposed licence area. This is confirmed by the map produced by the Tribunal’s Geospatial unit.
The draft tenement endorsements and conditions extract indicates the grant of the proposed licence will be subject to the following conditions, in addition to the four standard conditions imposed on the grant of all exploration licences in Western Australia (see Tullock v Western Australia at [11]):
5. The Licensee notifying the holder of any pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs, water carting equipment or other mechanised equipment.
6. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of the transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. All Mining Act tenement activities prohibited within 200 metres of RAMSAR or ANCA listed wetlands unless written permission of the Department of Environment and Conservation is first obtained.
Turning to condition 7, it was not apparent from the material provided by the Government party, or the Tribunal’s map, that there were any RAMSAR or ANCA listed wetlands within the proposed licence area. The Tribunal asked the Government party to clarify whether any such areas are located within the boundaries of the proposed license. The Government party subsequently provided a map to the Tribunal and all parties which depicts an area designated as an ANCA listed wetland encroaching on the south-western corner of the proposed licence area.
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 of the proposed licence:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related 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 DoWs 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 abstraction 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 water.
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 indicates that it also intends to place the following condition on the grant of the proposed licence:
In respect of the area covered by the licence the licensee, if so requested in writing by the Wiluna People, the applicants in Federal Court application No. WAD 6164 of 1998 (WC99/24), such request being sent by pre paid post to reach the Licensee’s address, C/- M & M Consulting, PO Box 8197, Subiaco WA 6008, not more than ninety days after the grant of this licence, shall within thirty days of the request executed in favour of Wiluna the Central Desert Regional Standard Heritage Agreement.
The statutory declaration made by Mr Abbott for the grantee party and provided by the Government party indicates that the grantee party has already offered to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party.
Native Title Party
As noted above at [7], the Wongawol Affidavit and Wongawol Statement are subject to non-disclosure directions. Nevertheless, I have referred to the documents to the extent necessary to outline the findings of fact on which this decision is based, as required by s 162(2) of the Act and as foreshadowed in the directions.
For the present purposes, it will suffice to note that Mr Frankie Wongawol and Mr Morris Wongawol each depose they are an appropriate person to speak for this land, and outline the reasons. Those reasons were not contested, and I accept that they both have the proper authority to give evidence in this matter. In relation to the Wongawol statement, it is both unsigned and undated, and I have given it less weight than to the affidavit evidence. Though the native title party undertook to produce the statement in affidavit form to parties and the Tribunal, it has not done so, although I appreciate the logistical difficulties which sometimes arise in relation to having statements sworn, particularly by witnesses in regional or remote locations. In such circumstances, an affidavit from the native title party representative outlining how the statement was created, and any logistical difficulties in having it sworn, may have been of some assistance to the Tribunal.
The affidavit evidence of Mr Frankie Wongawol states that Lake Carnegie ‘is a really important place for all us Martu people’ and it is significant because of jukurrpa (or dreaming tracks) which are said to be on and across certain parts of Lake Carnegie. He also states Lake Carnegie is ‘very sacred to us’. According to the native title party, the jukurrpa travel through a landscape, transform it and leave behind sacred sites and places ‘imbuing areas with particular significance’ (at 3.25; referring to Mr Frankie Wongawol’s affidavit at 10 and 13 and Mr Morris Wongawol’s statement at 8).
From my understanding of the affidavit evidence in particular, the proximity of the proposed licence to the shore line of Lake Carnegie is of concern to the native title party. The affidavit clearly identifies a specific jukurrpa (WKJ) which ‘is there in the tenement’. The affidavit also outlines why WKJ is important, and describes a particular geographical feature associated with WKJ and its link to ‘a very special site' for women, which is not on the proposed licence but which is connected to the feature and to WKJ. He refers to the interconnectedness of the various jukurr, and says that walking around, chipping at rocks or drilling holes can hurt a jukurrpa. He states the proposed licence is ‘surrounded by sacred sites that are important to the Martu people and it's a sacred area’.
Mr Morris Wongawol’s statement is less persuasive because of its undated and unsigned nature and because of its contents, which are less specific than Mr Frankie Wongawol’s affidavit. It does, however, confirm the geographical feature associated with WKJ is in the place Mr Frankie Wongawol has stated, that it is dangerous ‘out that way’, and that walking or chipping with hand tools can be problematic because of the nature of the area. Clearly, both Mr Frankie and Mr Morris Wongawol know the area of the proposed licence and surrounds. They make it clear that the jukurrpa in the area are an important part of the law for the Martu People, which includes the Wiluna native title party, and that there is a particularly important jukurrpa (WKJ) associated with a specific geographical site on the proposed licence. I have not identified the geographical site in light of the non–disclosure directions.
In their contentions the native title party indicate the Government party ‘has not made the grant of the Tenement conditional upon the execution of the RSHA’ (at 3.17). However, I do note the Government party has imposed a condition whereby the Wiluna People may trigger the RSHA should they wish to do so. The native title party has countered to say that even should the Government party impose such a condition ‘it is not likely to provide evidence as to which provisions of the RSHA it [the Government party] considers have a sufficiently protective effect, and therefore a contention of this nature should be given limited weight’ (at 3.17). I agree that the information regarding the RSHA is limited and so is of limited assistance to the Tribunal in relation to this matter. The native title party also draw a distinction between an RSHA in another jurisdiction which has ‘a commitment to cooperate to ensure... the ongoing protection of Aboriginal heritage’ and the RSHA in this matter which the native title party say does not feature such a commitment (at 3.19). Certainly neither the Government party or the grantee party have provided such information or evidence.
The native title party also state that the RSHA only requires consultation prior to a s 18 AHA application and not consent, which will not prevent interference under s 237(b). They note what they state are a number of other deficiencies in the information provided by the Government party in this current matter including:
·not addressing the ‘circumstance where the disclosure of certain cultural information by the native title party would be culturally inappropriate and contrary to traditional law and custom, and may itself constitute an interference’ (at 3.20) – I am, however, unclear as to the argument that is being mounted in this regard, particularly in relation to any physical interference this may cause to any site of particular significance on the proposed licence;
·the definition of non ground disturbing activity ‘permits certain activities to proceed without a heritage survey being conducted and ... such an activity would cause interference with a site of particular significance’ and ‘the Grantee Party is only required to meet [with the native title party] to “endeavour” to resolve the matter’ (at 3.21). They say, for example, that activities which can proceed without a heritage survey include ‘accessing the tenement, the use of hand tools for sampling purposes ... the establishing of tent or caravan camps not involving heavy vehicles or water bores’ (at 3.21). The native title party points out that the ‘consent of the Native Title Party to these activities is not required, where the Native Title Party has asserted that these will interfere with a site or area of particular significance’ (at 3.21) – I deal further with this later in this determination; and
·not addressing the issue of interference caused by inappropriate access or dealings with sites of particular significance as a result of gender – again, I deal further with this later in this determination, noting that the ngulu site associated with WKJ is a site secret to initiated males of the native title party.
Grantee party
Though the grantee party seeks to rely on the Government party’s contentions, it has also provided its own contentions, which can be summarised as follows:
·The grantee party will not exclude any community activities unless it is considered temporarily unsafe.
·The grantee party will comply with the AHA, is aware of the penalties that can be imposed and will report any Aboriginal sites identified as required by the AHA.
·The grantee party has never been prosecuted for any breach of the AHA.
·Exploration activity will not constitute major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters.
·The grantee party will restore land as close as possible to its prior condition immediately after carrying out its exploration programme.
In support of its contentions, the grantee party relies on its Section 58 Statement, which outlines the grantee party’s proposed work programme, as well as the company’s technical and financial resources. The statement notes that, in the first year of the proposed licence, the grantee party proposes to conduct a ‘detailed literature and previous explorers’ search’ and acquire available geophysical and ortho-imagery data, maps and survey information. This will be followed by field mapping and rockchip and soil geochemistry over any terrain ‘amenable to conventional soil sampling.’ In the second year, the grantee party intends to implement a drill campaign to test any geochemical and radiometric anomalies identified in the initial exploration. The statement identifies the target minerals as gold, silver, nickel, copper and base metals.
In relation to the grantee party’s financial resources, the statement explains that the company ‘currently has adequate cash reserves to meet its existing annual tenement commitments as at the date of this application, together with the budget for proposed exploration activities ... for the current Exploration Licence application.’ The statement also notes that corporate objectives include options for farm-in and joint venture participation.
There is no information as to how the grantee party intends to deal with any sites of particular significance on the proposed licence, for example, the WKJ site, given its stated sacred qualities. In addition, there is nothing to suggest that the grantee party may not, at some stage, exercise the full suite of rights it is entitled to under s 66 of the MiningAct. This section outlines that the full suite of rights enables the grantee party to:
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Mining Regulations 1981 (WA) outline the amount of material able to be removed from the exploration licence:
20. Limit on amount of earth etc. that may be removed (Act s. 66(c))
For the purposes of section 66(c) [of the Mining Act], the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1 000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister’s written approval, shall render the licence liable to forfeiture.
Considering the Evidence in context of s 237(b) of the Act
The issue the Tribunal is required to determine under s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (or more than ordinary) significance to the native title holders in accordance with their traditions. In this respect, the native title party makes the following submissions:
·the proposed licence contains sites and areas of particular significance to male members of the Wiluna claim group in accordance with the traditions of that group (at 3.25), specifically:
o the WKJ, which is described as ‘a story of particular significance to initiated men’ that ‘transforms the landscape in ways that are not immediately apparent to people without the requisite knowledge’ (at 3.25); and
o a ngulu (secret, dangerous) site that ‘should not be known by women or uninitiated men’ (which is the geographical site associated with the WKJ and connected to the women’s site off the proposed licence) (at 3.25).
· The proposed licence is located in a site rich area known generally as Lake Carnegie, which contains sites and places of particular significance to the Wiluna People and to people of the western desert generally (at 3.26).
· Members of the Wiluna claim group have an obligation, according to their traditional laws and customs, to maintain and protect sites of particular significance with the proposed licence (at 3.27).
· The nature of the country on, and surrounding, the proposed licence is such that any entry on parts of the proposed licence or the surrounding country which has not been agreed with members of the Wiluna native claim group is likely to result in interference within the meaning of s 237(b) (at 3.28).
The Government party says there are two categories of sites identified in the native title party’s contentions, being 1) the jukurrpa that are said to traverse the claim area and create sites of particular significance to the native title holders and 2) the sites which have been created that are described as ngulu. In relation to the first category, the Government party contends that neither the native title party’s contentions nor the material on which they seek to rely indicates with any specificity the location of the jukurrpa or the sites or areas within the proposed licence area that are said to be of particular significance as a result of the movement of the jukurrpa. In relation to the second category, the Government party contends that the location of the only site identified with any degree of particularity is not disclosed other than to assert that the site is ‘in the tenement’ and to point to a specific feature where ‘he’s in’. In this regard, the Government party contends that neither the location nor the nature of these sites has been expressed with sufficient particularity for them to be properly characterised as areas or sites of particular significance. With respect to Lake Carnegie, the Government party says that, although it is readily identifiable on the map, the reasons for its significance have not been identified with sufficient particularity.
I agree with the Government party argument to some extent. I do not accept that the whole of the proposed licence area is ngulu simply because of the presence of the WKJ or the other jukurrpa which have not been named or identified. Though the Tribunal has previously recognised that dreaming tracks can constitute sites or areas of particular significance, much will depend on the evidence presented (see Freddie v Western Australia at [44]-[47]). As Member O’Dea observed in Wiluna v Emergent (at [45]), mere reference to the existence of jukurrpa without identifying the nature of its significance or its location is not an adequate basis for finding that the jukurrpa is an area or site of particular significance. In that matter, Member O’Dea drew a distinction between areas that are covered by dreaming tracks, which might be deemed as generally significant, and sites that are the manifestations of specific activities of mythic beings, which could be regarded as specific, culturally significant areas (at [39]). This distinction has since been referred to favourably by President Webb QC in Yindjibarndi v FMG (at [130]). Certainly these areas are important to the native title party, however, in this matter, the evidence does not establish that the areas generally described as being traversed by the jukurrpa are of particular significance to the native title holders, for the purposes of s 237(b) of the Act.
Nevertheless, the evidence of Mr Frankie Wongawol does suggest that the ngulu site can be regarded as a specific manifestation of the WKJ. Although his affidavit only refers to the site’s location by reference to a specific but un-named feature, the geography of the proposed licence (as indicated by Tribunal mapping and the documents provided by the Government party) supports an inference that the site constitutes a discrete area within the proposed licence area. That inference, together with Mr Wongawol’s description of the site’s significance in traditional law and custom, provides sufficient basis for a finding that the ngulu site is of particular significance to the native title holders.
Insofar as the native title party’s contentions concern the Lake Carnegie heritage place, I do not accept that it has been defined with sufficient particularity, either with respect to its dimensions or its overall significance, to support a finding that it is a site or area to which s 237(b) applies. Clearly it is of importance to the native title party, however, the special or more than ordinary qualities of that heritage site itself have not been outlined, apart to say that jukurrpa traverse the area and it is a sacred area.
As for Lake Carnegie itself, the Tribunal has elsewhere accepted that a lake of comparable size can constitute a site of particular significance (see Western Desert Lands Aboriginal Corporation v Western Australia regarding Lake Disappointment; and Barnes v Pirkopf; Forrest v Aruma Exploration; Barnes v Copley regarding Lake Yindarlgooda). Where this matter differs from those matters is that the evidence before the Tribunal regarding Lake Disappointment and Lake Yindarlgooda contained considerably more information about the nature of the lake and its relationship to the spiritual beliefs of the native title holders. In the present case, the materials relied on by the native title party only refer in general terms to the existence of unidentified jukurrpa (apart from the WKJ) along the surface and shoreline of the lake, and the dangers associated with walking on ‘the lake’. As the Tribunal has maintained in previous decisions, s 237(b) requires there to be evidence that establishes the particular significance of the area or site. Though there is some evidence that Lake Carnegie is an important area for members of the claim group, I do not consider the evidence supports the conclusion that it is a site of particular significance according to the traditions of the native title holders.
The native title party also sought to characterise Lake Carnegie and the surrounding area as ‘site rich’. In support of that characterisation, the native title party relies on the Tribunal’s decision in Crowe v Western Australia where the expedited procedure was held not to apply. Although the facts of this matter in some respects resemble those in Crowe v Western Australia, including that only one site had been clearly identified by the native title party as being of particular significance (the ngulu site), the Tribunal gave particular weight to the fact the native title party was able to identify a class of sites (specifically, burial grounds) that were distributed throughout the area, and had given evidence about the importance of those sites within the traditional laws and customs of the native title holders. In the present matter, the native title party has not identified any sites of particular significance apart from the ngulu site.
I note as well that the Tribunal has concluded in a number of recent decisions, for example, in Lungunan vGeotech International, that s 237(b) is concerned with identifying sites of particular significance and it does not necessarily assist the predictive assessment that the Tribunal is required to undertake to combine various sites into a general assertion that an area is site rich. In particular, I adopt the following reasoning from Member O’Dea in Lungunan vGeotech International at [43]:
In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstances, in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely.
As I have found the ngulu site is a site of particular significance, the next step is to consider whether the grant of the proposed license is likely to interfere with the site. On the question of interference, the native title party contends (at 3.28) that the nature of the country on, and surrounding the proposed licence is such that any entry onto parts of the area which has not been consented to by members of the native title party would likely result in interference within the meaning of s 237(b). As that contention is apparently premised on the particular significance of the entire area, I cannot accept it. However, the native title party does contend that there are sites and areas within the proposed licence that are considered secret and ‘where access to, or speaking about, those sites and areas will required a properly constituted group of people’ (at 3.28(f)). The native title party also contends that physical interference with rocks and waterholes within the proposed licence will interfere with the ngulu site (at 3.29). In the native title party’s submission, meaningful consultation and negotiations between the grantee party and members of the native title party is necessary to ensure there is no likelihood of interference with sites of particular significance, particularly as members of the claim group have cultural obligations to other Aboriginal people of the Western Desert to care and protect sites and areas within the proposed licence and the surrounding area (at 3.32).
The Government party states that, if the decision be there are areas or sites of particular significance on the proposed licence, interference is not likely because:
·the grantee party is aware of the existence of those sites (if for no other reason that it has been the subject of evidence in this inquiry) and of its legal obligations in relation to those sites;
·the grantee party has indicated the exploration activities will be low impact and non-intrusive at least in the first one or two years;
·it is not sustainable that any level of ground disturbing activity will disturb the jukurrpa;
·section 237(b) of the Act does not apply to general spiritual concerns, there is no specific evidence of an identified area or site to which those concerns relate beyond the ngulu site, and it is unclear to what extent that site falls within the proposed licence area;
·there has been prior mineral exploration, the area is almost entirely covered by a pastoral lease and as such the grantee party activities would be no more significant than such previous and continuing use; and
·the AHA and the associated procedures are likely to prevent interference with any area or site of particular significance.
The native title party make several criticisms of the regulatory regime under the AHA, and question the utility of an endorsement on the grant drawing the grantee party’s attention to the legislation. In particular, the native title party argues that the AHA applies to a more limited class of sites, permits a broader range of activities than the concept of interference in s 237(b) and provides for a ministerial discretion to allow sites to be destroyed or damaged. These criticisms were dealt with concisely by President Webb QC in Yindjibarndi v FMG at [117]-[121], where the President concluded that:
[i]rrespective of the differences between terminology in the Act and the AHA, it remains the case that the Tribunal must consider the evidence provided in a particular matter to decide whether or not the protective regime of the AHA is sufficient to make it unlikely that there will be interference with sites or areas of significance.
The native title party also highlights various reports concerning the effectiveness of the protective regime, including a media statement made by then Minister for Resources Francis Logan in November 2007, the report of the Casey review into the Department of Indigenous Affairs published in April 2007 and the Auditor-General’s report of September 2011 entitled Ensuring Compliance with Conditions of Mining. I dealt with the issues raised by the 2011 report in Karajarri v ASJ Resources, where I concluded that, despite the general weaknesses identified in the report regarding the system for monitoring conditions, weight must be given to the evidence provided in relation to the proposed activities of each particular grantee party. That conclusion is consistent with the Tribunal’s general approach to the site protection regime as identified in Parker v Ammon and approved in Parker v Western Australia. I also note the Government party contention that, since the publication of the Auditor-General’s 2011 report, DAA has put in place a number of measures to improve its performance with respect to site monitoring and protection and mining activity (at 40). In support of that contention, the Government party refers to the affidavit of Mr Aaron Rayner, Chief Heritage Officer of the DAA that was provided in Karajarri v ASJ Resources, and I note my comments at [51]-[52] of that decision.
Though the Tribunal is entitled to have regard and give considerable weight to the regulatory regime, it must consider on the basis of the evidence presented whether the regime will be sufficient to make interference unlikely in a particular case (see Parker v Ammon at [35]; Cherel v Faustus Nominees at [81]-[91]). In this matter, there is evidence that the ngulu site does exist on the proposed licence, and evidence to support the native title party’s contentions that unauthorised or unaccompanied access to an area such as the ngulu site of particular significance may amount to interference within the meaning of s 237(b). There is evidence that activities such as drilling or rock chipping could cause interference with that site of particular significance. There is also evidence regarding restrictions on the dissemination of cultural knowledge relating to particular areas, though I note that contravention of these restrictions would not constitute physical interference for the purposes of s 237(b) (see Silver v Northern Territory at [88]).
The grantee party’s Section 58 Statement indicates that the grantee party intends to conduct, among other activities, field mapping and reconnaissance, rock chip geochemistry and soil sampling in the first year of the proposed licence and a drill campaign in the following year. The statement gives no indication of the areas the grantee party intends to target, and there is uncertainty as to the kind of activities the grantee party will conduct after the second year. In this regard, there is nothing to say what the grantee party’s intentions are in relation to the remaining years of grant, and I note there is reference in the Section 58 Statement to the possibility of a farm-in or joint venture arrangement. As such, I am entitled to assume the grantee party will undertake the full scope of activity to which it is entitled under the grant of an exploration licence as set out in s 66 of the Mining Act. The RSHA has been raised as a mechanism for the protection of any sites of significance to the native title party, but there is little evidence of how that particular RSHA would apply to mitigate the risk of interference in this matter. There is no evidence that previous exploration or pastoral activity in the area has affected the ngulu site.
I accept there is some evidence that the ngulu site may be interfered with as a result of activities that are not captured by the RSHA, or through unauthorised or unaccompanied access to the site by persons who lack the requisite cultural authority. If that is the case, it is possible the grantee party could inadvertently interfere with the site, regardless of its intentions to comply with the AHA. This has not been an easy determination to make. However, on balance, I conclude the native title party have made out that the ngulu site is one of particular significance, it is capable of identification, is on the proposed licence, and its significance has been explained. The activities which the grantee party is permitted to do under the Mining Act could physically interfere with that site, and because of the nature of that site, and its association with the WKJ and male only closed area nearby (the Lake Carnegie heritage site), there is a real risk of interference, not just a possible chance of such interference. As such, I find that the proposed licence is likely to interfere with area or sites of particular significance to the native title holders for the purpose of s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E38/2763 to Formula Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
15 April 2014
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