WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Bogada Gold Pty Ltd
[2013] NNTTA 82
•5 June 2013
NATIONAL NATIVE TITLE TRIBUNAL
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Bogada Gold Pty Ltd [2013] NNTTA 82 (5 June 2013)
Application No: WO2012/0297
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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The State of Western Australia (Government party)
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Bogada Gold Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 5 July 2013
Catchwords: Native title – future acts – 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 involve major disturbance to land or waters - expedited procedure not attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 155, 237
Mining Act 1978 (WA) ss 66, 67A
Aboriginal Heritage Act 1972 (WA) ss 17, 18
Mining Regulations Act 1981 (WA)
Cases:Cyril Barnes & ors on behalf of Central East Goldfields People / Western Australia / Carl Christian Pirkops [2012] NNTTA 50, ('Pirkops')
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24, (‘Geotech International’)
Harvey Murray on behalf of the Yilka native title claimants / Western Australia / Drew Griffin Money [2011] NNTTA 91, ('Money')
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 ('Karajarri')
Les Tullock and Others on behalf of Tarlpa /Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 ('Allarrow')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 ('Tarlpa')
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65, ('Maitland Parker')
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, [2006] NNTTA 133, (‘Mineralogy’)
Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd, [2013] NNTTA 44, (‘Raymond Ashwin’)
Silver v Northern Territory (2002) 169 FLR 1, ('Silver')
Smith v Western Australia (2001) 108 FCR 442, ('Smith')
Walley v Western Australia (2002) 169 FLR 437, ('Walley')
Ward v Western Australia (1996) 69 FCR 208, ('Ward')
Wilma Freddie/Western Australia /Stephen Grant Povey, [2001] NNTTA 162, ('Povey')
Representative of the Mr Mike Allbrook, Central Desert Native Title Services Ltd
native title party:
Representatives of the Ms Jennifer O’Meara, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the Mr Greg Abbott, M & M Walter Consulting
grantee party:
REASONS FOR DETERMINATION
The Government party, through the Department of Mines and Petroleum ('DMP'), gave notice ('the notice') under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E53/1631 (‘the proposed licence’) to Bogada Gold Pty Ltd (‘the grantee party’), specifying the notification day as 14 December 2011. The notice included a statement that the Government party considers the grant attracted the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
The Wiluna native title claim (WC1999/024 - registered from 24 September 1999), (‘the native title party’), wholly overlaps the proposed licence.
According to the notice:
·the proposed licence is approximately 22 graticular blocks in size (which equates to approximately 67 square kilometres),
·the proposed licence is located 26 kilometres north west of Wiluna, in the Shire of Wiluna,
·the grant of the proposed licence would authorise the applicant to explore for minerals for a term of 5 years from the date of grant,
·the native title party had until four months from the notification day to lodge an objection application against the expedited procedure statement for the proposed licence.
On 5 April 2012, WF (deceased) and others, on behalf of the native title party, lodged an expedited procedure objection application with the Tribunal in respect of the proposed licence. That objection addressed the likelihood of interference with the proposed licence area which may result from the grant, under ss 237(a), (b) and (c) of the Act.
In accordance with 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 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. Parties attempted to reach agreement, and the Tribunal varied directions at parties’ request on various occasions to allow for negotiations to progress. At the status conference convened on 23 January 2013, the grantee party advised agreement could not be reached and requested the matter proceed to inquiry.
I was appointed as the Member for the purposes of conducting the inquiry on 8 April 2013.
In accordance with final directions, the Tribunal received the following documents:
·the Government party’s supporting documents on 25 February 2013;
·the native title party’s statement of contentions on 18 March 2013;
·the affidavit of Ms Glenys Williams sworn on 26 February 2013, from the native title party;
·the grantee party’s statement of contentions on 25 March 2013; and
·the Government party's statement of contentions in response on 23 April 2013 (with paragraph 21 of those contentions amended on 8 May 2013 with leave, to reflect that the grantee party had 'made an offer' to execute an RSHA, rather than having 'signed and sent a copy' of the RSHA to the native title party).
The native title party contentions state that it does not intend to pursue its objection in relation to ss 237(a) and (c) of the Act. As such, this decision will only relate to s 237(b) of the Act.
Upon filing their contentions and evidence, the native title party requested that, due to gender sensitive content, the Tribunal make non-disclosure directions in relation to the affidavit of Ms Williams. No party objected to that request. On 15 April 2013, pursuant to s 155 of the Act, non-disclosure directions were imposed on the contents of Ms Williams’ affidavit. According to those orders, the affidavit will not be reproduced in this decision, however, I will refer to the contents of the affidavit to the extent required to explain my reasons for this decision.
On 20 May 2013, the Tribunal sent all parties a copy of a map dated 8 May 2013 indicating that it would be relied upon for the determination of this matter. In response, on 23 May 2013, the Government party provided documentation that reflected the tenure of the area available for grant, which the Government described in the covering email as 'considerably less' than the land applied for by the grantee party. The Government party stated that the area available for grant is reduced due to a number of overlapping active mining tenements. It appears those active tenements are in the south western and western portion of the proposed licence. Should any of these mining tenements cease - for example be surrendered, forfeited or expire, the grantee party is at liberty to apply to amalgamate that area under s 67A of the Mining Act 1978. However, that amalgamation is likely to also be subject to a s 29 notice under the Act, and therefore, subject to the right to negotiate process.
The Tribunal wrote to parties on 24 June 2013, seeking any comment or objection to approaching the inquiry on the basis of the area available for grant. No comments were received. As such, I will proceed with this determination on the basis of the area available for grant at present, as it more accurately reflects the future act in question.
Section 151(2) of the Act provides that the Tribunal may proceed to determine a matter ‘on the papers’ (that is, without a hearing) unless the issues for determination cannot be adequately determined in the absence of the parties. I have considered the documents and material provided by the parties, and I am satisfied that this matter can be determined in this way.
Legal principles
Section 237 of the Act relevantly provides:
A future act is an act attracting the expedited procedure if:
...
(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; ...
In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence, including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].
With respect to issues arising under s 237(b), I adopt the principles outlined in Maitland Parker at [31]–[38], [40]-[41], recently endorsed in Raymond Ashwin at [16].
Evidence in relation to the proposed act
Government party documents relating to the proposed licence include:
·a tengraph plan 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 Register of Aboriginal Sites (‘Register’) maintained by the Department of Indigenous Affairs (‘DIA’);
·copies of the tenement application and Draft Tenement Endorsements and Conditions Extracts; and
·the tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.
The tengraph quick appraisal establishes the underlying land tenure within the area of E53/1631 available for grant to be as follows:
·Pastoral lease (Millrose 3114/960) at 100 per cent;
·Two active miscellaneous licences (L53/136 at 0.1 per cent; L53/153 at 18.4 per cent)
The quick appraisal also establishes the area available for grant within this proposed license has previously been subject to eleven granted exploration licences, five granted mining leases and two granted prospecting licences. These licences were variously active between 1989 and 2009, overlapping the proposed licence between 59.8 per cent and less than 0.1 per cent, and variously surrendered or expired.
The quick appraisal documents that services affected within the area available for grant include: 13 minor roads; a fence line; and two well/bores with windmill (Ronnie and Gum).
The draft tenement endorsements and conditions extract indicates that the grant of this proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tarlpa at [11]-[12]). The proposed licence will also be subject to three further conditions:
5. The licensee notifying the holder of any underlying 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 a 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. The rights of ingress to and egress from Miscellaneous Licences 53/136 and 53/153 being at all times preserved to the licences and no interference with the purpose of installations connected to the licences.
The Government party indicates that following endorsements will also be imposed on the proposed licence:
1. The Licencee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licencee’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.
The Government party also states (in their contentions at (18)) that they will impose an RSHA condition in the following terms:
In respect of the area covered by this license if the Wiluna (being the applicants in Federal Court Application No/s WAD6164/98) send a request by prepaid post to the licensee’s or agent’s address, not more than ninety days after the grant of this license, the licensee shall within thirty days of the request execute in favour of Wiluna the Regional Standard Heritage Agreement. (RSHA) endorsed by peak Industry Groups and the Central Desert Native Title Service.
According to the report from the DIA Register, there are a number of registered sites within E53/1631. Those sites are:
· Jundee 07 (site 1141) an artefacts/scatter site;
· Jundee 08 (1142) a quarry, artefacts/scatter site;
· Rose Hill (site 1608) a ceremonial, mythological, man-made structure, quarry, artefacts/scatter site; and
· Tjunti (site 2180) a mythological site (associated with a camp).
Both Rose Hill and Tjunti are closed sites. Jundee 07 and Jundee 08 are both wholly within the area available for grant. Rose Hill appears to be almost wholly within the proposed licence, but only partially within the area available for grant. Tjunti is near the north-west boundary of the proposed licence, with a portion overlapping the north-western boundary area of the proposed licence. It appears most, if not all of that overlap, is in an area not available for grant.
Tribunal mapping shows a further number of sites within approximately five kilometres of the proposed licence including site 1194, 1193, and 22922 (to the south of the proposed licence) and 21346 and 982 to the north-west. There are a number of sites also between 5 and 10 kilometres from the proposed licence including site 983, 984, 1372 (to the north-west) and 1145, 1192 and 1191 (to the south). There also appear to be sites beyond the 10 kilometre mark to the south and to the west.
Native title party contentions and evidence
The native title party contends that the proposed licence does not attract the expedited procedure on the basis that the grant of the proposed licence, and the exercise by the grantee party of rights authorised under the proposed licence, are likely to interfere with areas or sites of particular significance in accordance with their traditions. The native title party outlines (at 2.7) that the word ‘likely’ in relation to s 237(b) ‘requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated in s 237 (see Smith at [23]). The native title party contentions point to the requirement to construe the Native Title Act in a beneficial manner to the native title parties.
The native title party also notes that each case must be considered on its own facts, and that ‘where facts are peculiarly within the knowledge of the party to an issue, its failure to lead evidence may lead to an unfavourable inference being drawn' (at 2.11) (see Silver [23]). This submission correctly sums up the legal position as explained by Carr J in Ward (at 217):
In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue ie that they have an evidential onus of proof. The Tribunal might (subject to observing the requirements of procedural fairness) make its own inquiries and satisfy itself that the particular issue should be decided in favour of the party electing not to put evidence before it. Alternatively, part of an opposing party’s evidence, whether in cross-examination or otherwise, may satisfy the Tribunal on the point. That party has, in colloquial terms, taken its chances and won. However … where facts are peculiarly within the knowledge of party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its commonsense approach to evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the commonsense approach to evidence.
They argue (at 2.13) that in areas which have been demonstrated to be ‘site rich’, the grantee party should lead evidence to provide a basis upon which the Tribunal ‘might be assured that interference, intentional or otherwise, is not likely, given the practical difficulties with avoiding interference with sites in site rich areas. If the grantee party does not tender such evidence, then the presumption will be that it is likely that there will be such interference’ (as per Povey at [49]). I note that in Povey, the grantee gave no details as to how it would 'proceed so as not to interfere with the important sites on the tenement', in a 'site rich' area. Whether or not the area in the current matter is ‘site rich’ is considered later in this decision.
The native title party refers to a press release of the then Resources Minister from 2007 and a report of the review of the Department of Indigenous Affairs, also dated 2007, which outline some of the limitations of the Government’s regulatory scheme in relation to mining and development approvals process. The native title party also presents the Auditor-General’s report Ensuring Compliance with Conditions on Mining dated September 2011, which was dealt with in the previous Tribunal decision, Karajarri. The native title party (at 2.19) submits that my decision in Karajarri should be adopted for the purposes of this objection pointing particularly to: my findings in relation to DMP’s inspection regime not delivering ‘adequate coverage or assurance that mines meet their conditions’; the report’s conclusion and key findings relating to DIA and DMP; and the response by DMP and DIA acknowledging shortcomings and outlining improved processes to be implemented. The native title party states that in relation to their outlined criticisms of the State’s regulatory regime and the particular significance of sites and areas within the proposed licence, the State’s regulatory regime ‘will not mean...that the act is not likely to interfere with sites or areas of particular significance’ (at 2.21).
They also point to previous decisions of the Tribunal which have held that sites or areas of particular significance not located within the tenement proposed licence area can be impacted upon by the grant of the proposed tenement (see for example Silver at [34]-[35]). However, I note that in fact, this is a qualified consideration, in that Silver held there must be 'a clear nexus between those activities and issues being considered under section 237' (at [35]).
The native title party also contend that s 17 of the AHA is activated in a different way to the test of particular significance under s 237(b) of the Act. As such they state (at 3.9) that ‘reliance cannot be placed on the AHA to protect all sites or areas of particular significance, as there are areas or sites which, while within the terms of s 237(b) of the NTA, do not fall within the AHA’. They point to the ministerial discretion which exists, permitting interference to occur in some circumstances and cite in support of this Deputy President Sumner at [54] of Tarlpa. While that matter focussed on s 237(a) of the Act, I note (at [54]) that Deputy President Sumner held:
...the RSHA [Regional Standard Heritage Agreement] does not cover all the activities which the native title party asserts are likely to be interfered with. The regulatory regime does not enable the native title party to exercise those responsibilities to the extent of ensuring that no sites are interfered with as a Ministerial discretion exists, permitting interference to occur in some circumstances. Further, the RSHA is principally concerned with the issue of site protection...Even though the RSHA would require the grantee party to give notice about proposed on ground works, this does not mean that it provides a mechanism for dealing with all aspects of the native title party‘s responsibility to look after country.
The native title party explore further the Regional Standard Heritage Agreement (RSHA) and the RSHA condition the Government party proposes to place on the grant of the proposed licence. The native title party point out that they have ‘never endorsed the use of the RSHA and has never agreed to enter into a RSHA in any matter and will not do so in this matter’. They point to what they argue as being shortcomings in this RSHA, including: that any report produced following a heritage survey conducted in relation to ground disturbing activities may include information regarding details of identified sites; that the grantee party is only required to formally notify and consult with the native title party in relation to applications to destroy sites under s 18 of the AHA (rather than obtain native title party consent); that certain non-ground disturbing works can be conducted without a heritage survey; and that in relation to non-ground disturbing activity, the grantee party must notify the native title party of their intended activity. They state that such measures will not prevent interference under s 237(b) of the Act (at 3.19). In summary, the native title party state (at 3.22) ‘as a result of the nature of the sites, places and areas of particular significance within the Tenement, and the location of the Tenement in a site rich area, the RSHA is ineffective to prevent interference of the kind contemplated by sub-section 237(b) of the NTA and, in fact, potentially facilitate some kinds of interference’.
The native title party go on to outline a site and area of particular significance, referring to the Jukurrpa as outlined in Ms Williams’ affidavit (at 3.24 of the contentions and at paragraph [4] of the affidavit). They refer to the Jukurrpa being of particular significance to women, that it traverses the proposed licence, and that the Jukurrpa has created a site and area of particular significance which includes a rock hole and an arrangement of stones. As previously noted, for reasons of the s 155 non-disclosure order, I will not provide further detail about that area. The native title party contend that ‘the removal or interference with objects found in the natural environment in the tenement would constitute interference for the purposes of s 237(b)’. They state that rock chipping and other non-ground disturbing activity could interfere with the Jukurrpa track and the site created by the Jukurrpa (at 3.26). It is an area that, under traditional law and custom ‘cannot be accessed by men without the likelihood of interference to the site/area’ (at 3.27). The native title party contentions (at 3.27) state that ‘information about gender restricted areas is strictly controlled and managed. Access to, or speaking about, this site/area of particular significance requires a properly constituted group of people’ (see also Ms Williams’ affidavit at paragraph [5], [11] and [13]).
The native title party indicate that Jukurrpa tracks are open to inadvertent interference, and point to cases where this has been previously held by the Tribunal (for example Allarrow). They also point to the fact that ‘the nature of Jukurrpa is such that interference with one part of the Jukurr may cause interference to sites and/or country located at other points along the Jukurr’ (at 3.28(b)).
The native title party contentions state that ‘the nature of the site of particular significance within the tenement is such that the RSHA will not prevent interference as the RSHA’s protection is limited to the conduct of heritage surveys for ‘ground disturbing activities’ (at 3.30). They go on to say that ‘the nature of the site of particular significance within the tenement is such that ‘non-ground disturbing activity’ as it is defined under the RSHA (which includes rock chip sampling) would require monitoring by the native title party to protect the site and the Jukurrpa of particular significance to women’ (at 3.30(b) and Ms Williams’ affidavit at [6]-[7]). The RSHA does not address gender restricted access to areas on the proposed licence and the RSHA does not ‘address the fact that mere unauthorised access to the site of particular significance within the tenement would be likely to cause interference’ (at 3.30(e) and Ms Williams’ affidavit at [9] and [13]).
Finally, the native title party contentions state that ‘the nature of the site of particular significance in the tenement is such that negotiation, not merely consultation, on issues such as access, gender restriction and the impact of exploration activities need to occur in order to avoid interference’ (at 3.31(a) and the affidavit of Ms Williams at [3]-[7] and [9] and [13]).
Ms Williams, in her affidavit, states she resides at Bondini Community, that she is a member of the Wiluna claim group and has authority to speak for this country and I accept this. I note Bondini Community is approximately 46 kilometres from the proposed licence and there appear to be no Aboriginal communities on or near the proposed licence. She outlines a site as being an ‘important spot’, as well as its relationship to the ‘lady Jukurrpa’ and its location, which places it directly over the proposed licence. She states that the rock hole, as mentioned in the native title party contentions, is ‘big’, ‘dangerous’ and is ‘an important one’. She also outlines: the nature of its prohibition in relation to men having contact with the area; the possibility of disturbing an area; the consequences of hurting one part of the area may hurt ‘all over the country all along that ladies song line’ (at [7]); and a recent visit to the area to look after it and the nature of that obligation.
Grantee party contentions and evidence
The grantee party advise they will be relying on the contentions provided by the Government party and also add the following in relation to s 237(b) of the Act:
- They note there are registered DIA sites on the tenement
- They will comply with the AHA and will respect the registered Aboriginal sites
- They will report any Aboriginal sites identified during exploration activities as required by the Act
- They have never been prosecuted in relation to breaches of the AHA
No information is provided about their likely activities, or any steps the grantee party may take to avoid disturbance to sites or to sites of particular significance on the proposed licence.
Government party contentions and evidence
The Government party states that (at 16) the grantee party has not provided any evidence as to how it intends to exercise its right on this proposed license and the ‘Tribunal must assume that the grantee party intends to exercise its full suite of rights to be heard by section 66 of the Mining Act’. The Government party also draws the Tribunals attention to the endorsements and conditions which it will impose on the proposed license as well as the proposed RSHA condition.
They note that the grantee party has made an offer to execute an RSHA.
The Government party draw on similar cases to the native title party relating to the predictive assessment the Tribunal must carry out (for examples Smith as well as Silver).They state that the Auditor General’s report and any previously noted general weaknesses in the states regulatory system has been addressed by previous decisions of the Tribunal, for example Pirkops at [31], Karajarri and Money.
The Government party state that the four identified sites on the DIA register are not mentioned in the native title party contentions and so there is no evidence to demonstrate that these are sites of particular significance. They also state that the Jukurrpa is not specific as to its location, including the rock hole and arrangement of stones associated with the Jukurrpa. Also, they argue Ngulu or secret places are not identified as to their location. As such, the Government party does not accept these sites are sites of particular significance or that the area of the proposed license is site rich.
In addition, the Government party does not accept the native title party contentions which address that mere presence in an area may cause direct interference or that a lack of consultation before entering land or doing an activity amounts to interference (at 49 and 50).
The Government party states (at 51) that should the Tribunal conclude there are sites of particular significance within the proposed licence, interference with those areas or sites is not likely because:
·The grantee party is aware of the existence of the Jukurrpa site (which includes a rock hole and arrangements of stones) and that the grantee party has ‘agreed to work with the native title party, at least through the RSHA, to avoid interfering with such sites’ (emphasis added);
·They do not agree with the assertion that any ground disturbance will disturb Jukurrpa as if this was the case, the expedited procedure ‘would be disapplied to the grant of almost all exploration tenure in the vast majority of Australia’;
·Evidence about the Jukurrpa reflects a spiritual concern to which s 237(b) does not apply, and on the face of it the Jukurrpa inhabits the whole of the claim area;
·There has been prior mineral exploration on the area and it is completely covered by pastoral leases;
·The AHA and its associated processes ‘are likely to prevent interference with any area or site of “particular significance” to the native title holders’ (at 51(e)).
The Government party states that ‘the native title party is essentially inviting the Tribunal to find that the expedited procedure does not apply because the act will not be done with the permission of, or on the terms of, the Native Title Party (which may amount to an assertion of the right of veto). The application of the expedited procedure, however, is not concerned with obtaining an agreement of the native title party to the act’ (at 54).
Considering the evidence
Sites of particular significance - s 237(b)
In relation to the interaction between s 237(b) and the regulatory regime, I refer to the presumption of regularity in Walley at [50]-[51], whereby the regulatory regime is generally regarded as adequate to ensure that there is not likely to be interference with sites of particular significance. Each case must be considered individually, as the protective regime cannot be said to be adequate at all times to make the s 237(b) interference unlikely (see Maitland Parker at [35]). Also, the intentions of the grantee party with respect to the protection of Aboriginal sites are a relevant aspect of the predictive assessment of whether interference is likely (see Maitland Parker at [41]).
The term site rich is to be deciphered carefully. In Mineralogy, the use of site rich was construed by Deputy President Sosso (at [19] to [21]) as follows:
...It is open, of course, for the native title party to make such an assertion, but the question of whether an area is site rich is a question of fact. Identification of whether an area is site rich can only occur if there is evidence of sites and areas registered under the relevant aboriginal heritage legislation of a State or Territory and/or evidence from persons asserting native title identifying such sites and explaining their significance. It would be incorrect to assume that simply because there are numerous sites registered on a heritage register that the Tribunal will make a finding that an area is "site rich". That term is not recognised in the Act, and has been used by various Members as a short hand description of an area which is demonstrably rich in sites of particular significance to native title claimants and which sites cumulatively illustrate the overall spiritual importance of the relevant land and waters. Accordingly whether there are numerous sites registered or no sites registered is not of itself determinative of whether an area is "site rich".
In this matter the native title party points the Tribunal to the fact that the proposed tenement is surrounded on all sides by sites registered with the Department of Indigenous Affairs. That is an important factor, but it is only the starting point. It would be an unusual circumstance for the Tribunal to make a finding that an area is "site rich" without direct evidence from a person or persons from the claim group who can demonstrate that they are authorised to speak on behalf of a site or area, and that they have the requisite knowledge to explain the spiritual significance of an area or site to the claim group, or to a family or other sub-group within the wider claim group.
... The Tribunal will look beyond such assertions, and concentrate on direct evidence from the indigenous spokespeople and from independent and objective sources of information, particularly heritage registers.
Also, in Geotech International, it was concluded that s 237(b) is concerned with identifying sites of particular significance and it is not a necessary requirement to combine various sites into a general assertion that an area is site rich. I adopt the following reasoning from Member O’Dea in Geotech 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 circumstance [sic], 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.
It is not clear whether the Jukurrpa or areas created by the Jukurrpa are the same as the DIA registered sites. The DIA sites are not explicitly referred to in the native title party contentions, or Ms Williams’ affidavit. Nor is any nexus provided between these sites and the sites outside of the proposed licence. In the absence of such evidence, I could not say this proposed licence is 'site rich'.Consequently, I accept the argument the Government party as detailed above, that the term 'site rich' is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b) by the activities of the grantee party.
The native title party have noted the proposed licence 'contains a site and area of particular significance, in accordance with their traditions', and go on to outline the Jukurrpa and areas created by the Jukurrpa, of particular significance to women. These include a rockhole and arrangement of stones. That these areas exist has not been challenged by the grantee party, or the Government party.The native title party states information about such areas is strictly controlled and access by men interferes with the area. I accept that these areas are sites of particular significance to the native title party.
The Government party have argued that the grantee party can work with the native title party to avoid interfering with the Jukurrpa site which includes the rockhole and arrangement of stones, for example, through the RSHA. I also note that the area has been subject to prior exploration and mining licences and pastoral leases, and the Government party argues that the grantee party activities would be 'the same as, or no more significant than, such activity’. The difficulty is that no evidence has been lead from the grantee party as to their intended activities or in relation to the particular sites referred to in the native title party contentions or in Ms Williams’ affidavit. The Government party contends that the grantee party knows of the existence of these areas, but it is not apparent their location is known by the grantee party.
As noted earlier, I have assumed that 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:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(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 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.
The Government party argue that evidence about the Jukurrpa reflects a spiritual concern to which s 237(b) does not apply, and that on the face of it, the Jukurrpa inhabits the whole of the claim area. I note Ms Williams does refer to the lady Jukurrpa walking over the claim area, but that there is 'an important spot there in the Tenement' (emphasis added), and she provides detail about that area and its particular importance. As such, while the Jukurrpa itself may not be specific to the proposed licence in this matter and could not therefore be said, as it described in this matter, to be a ‘site’ of particular significance, the Jukurrpa has created areas within the proposed licence which are important, and gender specific, and I accept they are sites of particular significance.
The Government party state that the AHA will prevent interference with sites of particular significance, but do not specifically outline how such will be prevented. The grantee party has submitted that it will comply with the AHA but has not provided an explanation of how avoidance of sites of particular significance will be undertaken apart from in broad terms. As Member O’Dea noted in Allarow (at [36]), a matter where the expedited procedure did apply could be distinguished from a matter where the expedited procedure did not apply, where ‘the grantee party had gone to considerable lengths to explain precisely how it would consult with the native title party in order to ensure that any difficulties that arose in relation to potential interference with sites of particular significance that they had identified would be dealt with’. Due to the nature of the sites created by the Jukurrpa, it appears they would not be easily identifiable by the grantee party and the identification is further complicated by the sites being restricted to women only.
While the Government party indicates the grantee party is aware of the existence of these sites created by the Jukurrpa, those sites are not readily identifiable by persons other than the native title party. As Member O’Dea noted in Allarow (at[40]) the RSHA ‘only requires the conduct of surveys where ground disturbing activity is taking place’, and given the nature of the sites of particular significance, inadvertent interference is possible if the grantee party enters the area without guidance from the native title party. As such, for the purposes of s 237(b) of the Act, I find there is a real risk of interference with sites of particular significance on this proposed licence.
Determination
The determination of the Tribunal is that the grant of exploration licence E53/1631 is not an act attracting the expedited procedure.
Helen Shurven
Member
5 July 2013
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