WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Echo Resources Ltd - [2013] NNTTA 51

NATIONAL NATIVE TITLE TRIBUNAL

WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Echo Resources Ltd [2013] NNTTA 51 (7 May 2013)

Application No: WO2012/0695, WO2012/0696

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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Echo Resources Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  7 May 2013

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts are likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – whether acts are likely to involve major disturbance to land or waters - expedited procedure attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18
Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2012] NNTTA 126
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia (2008) 167 FCR 340
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437

Representative of the Mr Mike Allbrook, Central Desert Native Title Services Ltd
native title party:

Representatives of the Mr Jeff O’Halloran, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the Mr Ernst Kohler, Echo Resources Ltd
grantee party:

REASONS FOR DETERMINATION

On 21 March 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E53/1500 and E53/1554 (‘the proposed licences’) to Echo Resources Ltd (‘the grantee party’). The notice included a statement that the Government party considers that the grants attract the expedited procedure (that is, that the proposed licences are acts that can be done without the normal negotiations required by s 31 of the Act).
The notice describes the area and locality of the proposed licence as follows:
·E53/1500 – 12 graticular blocks (approximately 36.76 square kilometres) situated 13 kilometres south of Wiluna in the Shire of Wiluna; and
·E53/1554 – 63 graticular blocks (approximately 193.22 square kilometres) situated 5 kilometres north-east of Wiluna in the Shire of Wiluna.
The whole of the land within each of the proposed licences is subject to the Wiluna native title claim (WC1999/024 – registered from 24 September 1999).
On 18 July 2012, WF (deceased) and others on behalf of the Wiluna Native Title Claimants (‘the native title party’) made expedited procedure objection applications with the Tribunal in respect of the proposed licenses (designated by the Tribunal as WO2012/0695 in relation to E53/1500 and WO2012/0696 in relation to E53/1554).
In accordance with what was then standard practice in relation to expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the expedited procedure is attracted. These directions allowed a four month period after the closing date for the lodgement of objections (in this case, 22 July 2012) for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent. In the present matter, the native title and grantee parties commenced discussions about a possible agreement. However, by the time the parties met for a status conference on 7 November 2012, it had become clear that an agreement would not be reached. Consequently, the grantee party elected for the objection to proceed to inquiry and, following a request from the native title party for further time to provide its submissions, President Graeme Neate amened directions on 15 November 2012.
In accordance with the amended directions, the Tribunal received the following documents:
·the Government party’s supporting documents on 12 November 2012 (‘GVP Documents’);
·the affidavit of Lena Long sworn on 29 November 2012 (‘LL Affidavit’);
·the native title party’s statement of contentions on 17 December 2012 (‘NTP Contentions’); and
·a letter dated 16 January 2013 and signed by Ernst Kohler on behalf of the grantee party (‘Kohler Letter’).
On 19 December 2012, the Government party wrote to the Tribunal requesting further time in which to provide its contentions in reply. As there were no objections, the Tribunal granted the extension. The Government party’s contentions were received on 31 January 2013 (‘GVP Contentions’). At a listing hearing held on 7 February 2013, the native title party requested the opportunity to respond to the contentions provided by the grantee and Government parties. Leave was granted, and the native title party’s statement of contentions in response was filed on 5 March 2013 (‘NTP Reply’). Although no request was made by the grantee party to file further submissions, Mr Kohler provided a further letter responding to the native title party’s contentions on 19 March 2013 (‘Kohler Reply’). At an adjourned listing hearing on 11 April 2013, the native title party argued that the Kohler Reply should not be considered unless the native title party had the opportunity to respond. Consequently, I allowed the native title party seven days in which to provide a response, which it did on 18 April 2013 (‘NTP Further Reply’).
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 other material provided by the parties, and I am satisfied that the matter can be determined in this way.

Legal principles

Section 237 of the Act provides:

237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:
(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

In Walley v Western Australia (2002) 169 FLR 437, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.
In relation to s 237(a), I adopt the legal principles identified in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 at [31]–[38] and [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v State of Western Australia (2008) 167 FCR 340). I also adopt those set out by Deputy President Sosso in Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little v Oriole Resources Pty Ltd (2005) 146 FLR 576, especially [41]-[57]).

Evidence in relation to the proposed acts

GVP Documents relating to the proposed licences include:
·Tengraph plans with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licences;
·reports and plans from the Register of Aboriginal Sites (‘Register’) maintained by the Department of Indigenous Affairs (‘DIA’);
·copies of the tenement applications and Draft Tenement Endorsements and Conditions Extracts;
·instruments of licence and first schedules listing land included and excluded from the grants; and
·Tengraph quick appraisals detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licences.

E53/1500

The Tengraph quick appraisal establishes the underlying land tenure within E53/1500 to be as follows:
·Pastoral lease 3114/472 (Lake Violet) at 99.1 per cent; and
·Road reserve at less than 0.1 per cent.[1]
[1] As the percentage of encroachment in Tengraph is expressed to one decimal place, I infer that the pastoral lease covers slightly more than 99.1 per cent of E53/1500.
The quick appraisal indicates that an existing exploration licence encroaches on E53/1500 at 8.3 per cent. It also establishes that the area within E53/1500 has previously been subject to the following mineral tenure:
·Five exploration licences:
o   Granted between 1991 and 2005
o   Surrendered between 2003 and 2009
o   Encroaching at between one per cent and 23.6 per cent
·Five mining leases:
o   Granted between 1994 and 1995
o   Surrendered between 2000 and 2004
o   Encroaching at between one per cent and 19.9 per cent
·12 prospecting licences:
o   Granted between 1997 and 2008
o   Surrendered, forfeited or expired between 2001 and 2008
o   Encroaching at between 0.2 per cent and 5.4 per cent
·15 mineral claims:
o   Granted between 1970 and 1971
o   Surrendered in 1972
o   Encroaching at between 3.3 per cent and less than one per cent
·Three temporary reserves:
o   Granted in 1959, 1976 and 1978
o   Cancelled in 1964, 1977 and 1979
o   Encroaching at 100 per cent, less than one per cent, and 67.1 per cent.
The report from the DIA Register indicates there are no registered sites or ‘other heritage places’ within E53/1500.
The Draft Tenement Endorsement and Conditions Extract indicates that the grant of E53/1500 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 tenement will also be subject to two further conditions requiring the licensee to notify the holder of any underlying pastoral or grazing lease to be notified of the grant or transfer of the licence and of certain activities.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are noted:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Government party also intends to impose a condition requiring the grantee party to offer to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party at its request. The condition is proposed in the following terms:
In respect of the area covered by the licence of the Licencee, if so requested in writing by the Wiluna People, the applicants in Federal Court application WAD 6164 of 1998 (WC99/24), such request being sent by pre-paid post to reach the Licensee’s address, Echo Resources Ltd, 992 Albany Highway, East Victoria Park WA 6101, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wiluna People the Regional Standard Heritage Agreement endorsed by peak industry groups and the Ngaanyatjarra Land Council.

E53/1554

The Tengraph quick appraisal establishes the underlying land tenure within E53/1554 to be as follows:
·Pastoral lease 3114/472 (Lake Violet) at 99.6 per cent; and
·Pastoral lease 3114/960 (Millrose) at 0.4 per cent.
It is evident from the quick appraisal that the area within E53/1554 is currently subject to 13 existing mining leases, all encroaching at between 2.1 per cent and less than one per cent. The quick appraisal also shows the area has previously been subject to the following mineral tenure:
·24 exploration licences:
o   granted between 1989 and 2010
o   surrendered, forfeited or expired between 1994 and 2012
o   encroaching at between 33.1 per cent and 0.1 per cent
·Two mining leases:
o   Granted in 1994 and 2005
o   Surrendered in 2000 and 2006
o   Encroaching at 3.4 per cent and 0.7 per cent
·18 prospecting licences:
o   Granted between 1993 and 2005
o   Surrendered or expired between 1997 and 2009
o   Encroaching at between one per cent and less than one per cent
·26 mineral claims:
o   Granted between 1971 and 1974
o   Surrendered between 1971 and 1974
o   Encroaching between 0.6 per cent and less than one per cent
·Two temporary reserves:
o   Granted in 1959 and 1976
o   Cancelled in 1964 and 1977
o   Encroaching at 100 per cent and 9.6 per cent
According to the report from the DIA Register, there are no registered sites or ‘other heritage places’ within E53/1554.
The Draft Tenement Endorsement and Conditions Extract indicates that E53/1554 will be granted subject to the same conditions and endorsements to be imposed on E53/1500 (see above at [18]-[19]). The Government party also intends to impose the RSHA condition referred to above at [20].

Native title party contentions and evidence

The native title party contends that the proposed licences do not attract the expedited procedure on the basis that the grant of the proposed licences, and the exercise by the grantee party of rights authorised under the proposed licences, are likely to interfere directly with the carrying on of the community or social activities of persons who hold native title in relation to the land or waters concerned (s 237(c) of the Act). Though the objection application also addressed ss 237(b) and (c) of the Act, the native title party has stated that it does not intend to pursue its objection in relation to those matters.
In support of its contentions, the native title party relies on the affidavit of Ms Long. Ms Long’s affidavit is made in the following terms:
I, Lena Long, of Trenton Street, Wiluna, artist in the State of Western Australia, hereby swear and say on oath as follows:
1.    I am a traditional owner in the Wiluna native title claim area (WAD 6164 of 1998). I have cultural authority for the area of tenement applications E53/1500 and E53/1554 (the Tenements).
2.    I make this affidavit in support of the Statement of Contentions of the Objector in an inquiry to the expedited procedure matters.
3.    The information in this affidavit are all things that I know to be true.
4.    I have been shown an A1 size map of the tenements for this matter by a staff member of Central Desert Native Title Services, an A4 copy of which is attached and marked ‘Annexure LL1’.
5.    I was born in the Wiluna Claim Area on the Canning Stock Route at Well No 7 and I’ve lived in the area all my life. I can talk for this area because I’m a Martu person and this is Martu country.
6.    When I was a little girl the old people took me to the Tenements and told me about how to look after the country and where to get food the traditional way.
7.    Now that I’m older I like to take children to the Tenements on weekends or on long weekends or holidays. We go out and camp under the stars cooking dampers, looking around d [sic] walking and looking for goannas, porcupine and emu eggs. It’s really good food there.
8.    We go to those Tenements all the time because it’s a really good place to get food. When we get sick of whitefella food at the shop we go to the Tenements to hunt animals like goanna, emu, kangaroo, porcupine and bush turkey.
9.    I was in the Tenement about six months ago up at a place called Pumpkin Well and we caught goannas, porcupine and emu eggs and we sat down there and cooked the food in the Tenement there at that Pumpkin Well. Not whiteman tucker its bush tucker we can’t get anywhere else.
10.     There’s lots of shade in the area of the Tenement and we like to sit underneath the trees and cook and eat our food.
11.     If the mining company comes and doesn’t look after the place and dig up the country it would interfere with the hunting. Digging up the place and messing it up. It’s good country that one and we don’t want anyone messing it up by drilling or walking around where they shouldn’t be.
12.     A company came to the Tenements a while back and they didn’t look after the country. They drilled all these holes in the ground and just left them open. This mucks up the hunting ground where the animals live and makes it harder for us to hunt traditional way.
13.     If someone wants to come into the Tenements they have to talk to us first.
14.     We try and keep our country good for hunting and those mining companies gotta show it respect.
As Ms Long asserts she is a traditional owner of the area of the proposed licences and has ‘cultural authority’ for the area, I accept that she is authorised to speak on behalf of the native title party in relation to the proposed licences.

Grantee party contentions and evidence

The grantee party’s contentions are provided in the form of a letter dated 16 January 2013 and signed by Mr Kohler, managing director of the grantee party. Although Mr Kohler has not given his evidence by way of affidavit, I nevertheless accept it as evidence of the grantee party’s intentions regarding the proposed licences.
For the sake of convenience, I summarise the relevant parts of Mr Kohler’s letter as follows:
·The proposed licences cover or border existing mineral tenements and tenement applications made by parties unrelated to the grantee party. The grantee party understands that the areas subject to these existing tenements and applications will be excluded from the areas granted under the proposed licences (paragraph 3).
·The proposed licences are located within a geological terrane known as the Yandal Gold Province, which contains a number of operating gold mines, the nearest and largest being the Jundee Gold Mine, which is approximately 45 kilometres north of the proposed licences (paragraph 4).
·Over the past 50 years or more, the areas within and adjacent to the proposed licences have been explored by other parties for a range of mineral deposits, mainly gold. Several low potential mineral exploration prospects have been defined, though previous explorers ‘appear to have become discouraged’ by the lack of favourable geological indicators for economic gold deposits (paragraph 5).
·The grantee party has not previously undertaken any on-ground exploration work on, or aerial surveys over, the areas within the proposed licences (paragraph 6).
·Regional geological assessments and desktop reviews carried out by the grantee party suggest that the proposed licences may have potential for gold deposits, though the potential is considered to be low based on current geological knowledge (paragraph 7).
·There are numerous tracks suitable for four wheel drive vehicles on the proposed licences, and E53/1500 is crossed by a ‘regionally significant’ gravel road that extends to Wiluna. The roads and tracks are used by pastoralists, prospectors, tourists and other persons to access areas on or traverse the proposed licences (paragraph 8).
·The first phase of exploration will involve activities such as:
ogeological mapping on foot in geologically favourable areas;
oreconnaissance traverses using a four wheel drive vehicle along established tracks to assess the geological and regolith setting;
ohydrogeochemical sampling using hand-operated sampling bailers to extract water from established bores and drill holes in geologically prospective areas;
obiogeochemical sampling over small prospect areas using secateurs to collect phyllodes from the ends of Acacia Anneura tree branches;
osoil sampling over small prospect areas using a shover or auger;
orock chip sampling over small prospecting areas using a geological hammer; and
oanalysis of available remote sensing data sets.
The proposed activities will be carried out following standard industry procedures (paragraph 9).
·if the results of the first phase of exploration are favourable, the grantee party may undertake scout rotary air blast or air core drilling at individual prospects, possibly followed by deeper reverse circulation drilling using standard industry procedures and equipment. Drill holes will be capped or plugged at or below ground level on completion, and drill sites and tracks will be rehabilitated (paragraph 10).
·On-ground exploration will involve ‘campaign-style’ work programs, typically shorter than one to two weeks in total each year. The work will be undertaken by a geologist, possibly accompanied by a field technician. In the event that the grantee party commences drilling, a drill rig will usually by manned by three drilling contractors (paragraph 11).
·No permanent camp structures will be erected on the proposed licences, and the exploration party will be accommodated using tents and swags, and possibly a single caravan (paragraph 12).
·The grantee party has, at the request of the Department of Mines and Petroleum, signed an RSHA favour of the native title party (paragraph 14).
·The native title party subsequently offered an alternative agreement (paragraph 17).
·The alternative agreement contains clauses that are commercially unacceptable to the grantee party, logically impractical for the effective management of the grantee party’s proposed exploration activities, or which could result in the grantee party breaching its legal obligations under State and Federal laws and regulations, including the Mines Safety and Inspection Act 1994 (WA) and relevant departmental guidelines (paragraphs 19-20, 24).
·The grantee party was informed by the legal representatives of the native title party in the course of a teleconference convened by the Tribunal that the native title party would not accept any changes to the alternative agreement (paragraph 22).
·The grantee party has no intention of disrupting the community or social activities of the native title party (paragraph 25).
·The grantee party is willing to:
ocontinue negotiations with the native title party for a mutually acceptable agreement;
odiscuss strategies to prevent disruption to any sites or cultural activities in the proposed licence areas, including relevant exploration zones and restrictions on exploration activity;
osign confidentiality agreements with the native title party to protect any sensitive information relating to sites; and
oagree to all reasonable measures to prevent interference with sites of significance or activities carried on by the native title party in relation to those sites, or other cultural activities (paragraph 26).

Interference with community or social activities – s 237(a)

The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference): see Smith v Western Australia (2001) 108 FCR 442 at [23] (‘Smith’). The notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith at [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
It is clear from Ms Long’s evidence that members of the native title party visit areas within or adjacent to the proposed licences from time to time for the purpose of carrying on various community or social activities. Ms Long states that the areas are used for camping and as a hunting ground for animals such as goanna, emu, kangaroo, porcupine and bush turkey. It is also evident from Ms Long’s affidavit that areas within the proposed licences are traditionally associated with activities bound up with the transfer of cultural knowledge from one generation of the claim group to the next, and it is apparent the activities are still carried on in these areas. According to Ms Long, members of the native title party visit the proposed licence areas ‘all the time’ as they are ‘a really good place to get food.’ Ms Long states that she takes children to the areas on weekends, long weekends or holidays and refers to a specific occasion six months prior to making her affidavit when she and others visited Pumpkin Well, though it is unclear whether she was accompanied by minors or simply other adult members of the claim group. No party has sought to question Ms Long’s evidence in these respects.
The Government party contends that hunting and exploration are inherently capable of coexistence and, in the absence of ‘particular and very unusual evidence’ to the contrary, the Tribunal should determine that the proposed exploration will not interfere with hunting (GVP Contentions, paragraph 51(d)). In reply, the native title party says that it has presented evidence that prior mineral exploration has affected, and continues to affect, the community and social activities of the native title party (NTP Reply, paragraph 3.4). Specifically, the native title party relies on Ms Long’s evidence that a previous holder of a tenement in the same area failed to cap drill holes, which in her words ‘mucks up the hunting ground where the animals live and makes it harder for us to hunt traditional way’ (LL Affidavit, paragraph 12). On this basis, the native title party submits that the proposed exploration activity will interfere with the ability of the registered native title claimants to conduct community and social activities within the proposed licences (NTP Contentions, paragraph 3.12).
Mr Kohler states that drilling will only occur in the unlikely event that the first phase of exploration is favourable and that a mineral deposit is found (Kohler Reply, paragraph 2(d)). The native title party contends that the Tribunal should give no weight to this submission, as the stated purpose of the grant is to enable exploration to discover mineral deposits (NTP Further Reply, paragraph 2.2). However, Mr Kohler states that, if the grantee party does decide to drill in the area, the drill holes will be capped or plugged at or below ground level, and any drill sites or access tracks will be rehabilitated (Kohler Letter, paragraph 10). In this regard, I note the conditions to be imposed on the proposed licences require all surface holes to be capped, filled or otherwise made safe immediately after completion (Standard Condition 1). The conditions also require that all disturbances to the surface of the land, including costeans, drill pads, grid lines and access tracks, are backfilled and rehabilitated to the satisfaction the Department of Mines and Petroleum’s Environmental Officer no later than six months after excavation unless otherwise approved in writing (Standard Condition 2). There is no evidence that the grantee party is unlikely to comply with these conditions. As Member Shurven observed in Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 at [50], weight must be given to the evidence provided in relation to the proposed activities of each particular grantee party.
In relation to the first phase of the proposed exploration programme, the native title party contends that the activities are not trivial and will interfere with the community activities of the native title party by damaging the natural habitats of traditional food sources, preventing the native title party from camping in the area, limited the native title party’s access to traditional food sources and restricting the native title party’s enjoyment of other traditional activities (NTP Reply, paragraph 3.4). The native title party has not presented any evidence that the proposed first phase activities are likely to have those effects or explained the connection between those activities and the supposed impact. In this respect, I note that the first phase activities all involve the use of hand-operated tools over discrete areas within the proposed licences. I also note that, according to Mr Kohler, the exploration programme is only intended to take place over one to two weeks each year and there are no plans to erect any permanent structures to accommodate the exploration team.
The evidence indicates that the proposed licence areas have an extensive history of mineral tenure. Although the fact that various tenements have been granted over the areas does not necessarily mean that exploration or mining activities have occurred, I am entitled to infer from the existence of prior mineral tenure that the rights authorised under those grants were to some extent actually exercised (see Leedham Papertalk and Others on behalf of Mullewa Wadjari/Western Australia/State Resources Pty Ltd [2012] NNTTA 126 at [45]). In any event, the native title party’s submissions acknowledge that exploration activity, including drilling, has already occurred. That conclusion is also consistent with the evidence of Mr Kohler, who states that the areas are located in a well-established mining district and have been subject to significant prior on-ground mineral exploration activities (Kohler Reply, paragraph 1(e)). The native title party contends that the fact exploration activities have been undertaken within or around parts of the proposed licence areas does not mitigate or minimise the impact which the proposed exploration activity would have on the community or social activities of the native title party (NTP Further Reply, paragraph 2.3). However, if the native title party’s evidence regarding the impact of past drilling is accepted, it follows that prior exploration will have already affected the native title party’s ability to carry on those activities to some degree.
It should also be noted that the proposed licences are almost entirely covered by pastoral leases. Although the native title party contends that the activities proposed by the grantee party are ‘inconsistent’ with pastoral activities (NTP Reply, paragraph 3.4), the Tribunal is entitled to have regard to the fact that the exercise of the native title party’s registered rights and interests is already subject to the lawful activities of the pastoral leaseholders, which will have likely interfered to some extent with the native title party’s community or social activities (see Tarlpa at [122]).
A significant portion of the parties’ submissions were directed to negotiations that occurred between the native title and grantee parties after the objection was lodged, as well as the likelihood of future negotiation and consultation regarding the grantee party’s activities should the proposed licence be granted. Mr Kohler says that the agreement proposed by the native title party contained clauses that the grantee party considered commercially unacceptable, impractical or likely to result in the grantee party breaching State and Federal laws and regulations (Kohler Letter, paragraph 19-20, 24). Mr Kohler also states that the native title party refused to alter aspects of the alternative agreement and did not respond to the grantee party’s requests to define ‘no go’ or ‘exclusion’ zones (Kohler Reply, paragraph 2). Nevertheless, Mr Kohler states that the grantee party has indicated to the native title party its willingness to continue negotiations towards a mutually acceptable agreement. Mr Kohler also states that the grantee party is willing to discuss strategies to prevent disruption to any sites or cultural activities within the area of the proposed licences (Kohler Letter, paragraph 26). In reply, the native title party submits that the content of its negotiations with the grantee party is irrelevant. However, the native title party also contends that Mr Kohler’s statements are indicative of the grantee party’s unwillingness to enter into an agreement with the native title party (NTP Reply, paragraph 2.5-2.6). The native title party also notes that it has been involved in negotiations with the grantee party for a number of years in relation to other tenement applications, but has not reached any agreement (NTP Further Reply, paragraph 2.5).
The Government party contends that the grantee party’s offer to enter into an RSHA with the native title party is a relevant factor in determining that there is not likely to be interference with the social and community activities of the native title holders. In the Government party’s submission, the grantee party’s offer indicates its willingness to consult with the native title party and avoid activities likely to interfere with activities of the native title party (GVP Contentions, paragraph 51(a)). The native title party argues that the RSHA does not prevent interference with the community and social activities of the native title party (NTP Reply, paragraph 3.2). Given the RSHA is primarily concerned with the application of heritage protocols to activities proposed by the explorer, I accept that the RSHA would only have an incidental effect on the likelihood of interference with community or social activities. As for the Government party’s submission that an offer to enter into an RSHA can be taken as an expression of the grantee party’s intention to consult with the native title party about the possible effect of exploration on those activities, it is the Tribunal’s understanding that the Government party’s assertion of the expedited procedure is generally conditional upon such an offer being made before the tenement application is lodged. This is supported by the statement of Mr Kohler, who says that the offer was made at the request of the Department of Mines and Petroleum (Kohler Letter, paragraph 14). In consideration of this, I am not prepared to infer anything from the fact the grantee party offered to enter into an RSHA with the native title party.
Once the Government party asserts the expedited procedure, there is no requirement that the grantee party negotiate with the native title party or parties unless and until the Tribunal determines that the expedited procedure does not apply. However, evidence of negotiations that have taken place may be relevant to the extent they illustrate the grantee party’s intentions. Such evidence may also go to the likelihood that any interference with community or social activities will be mitigated by future consultation between the native title and grantee parties. In the present matter, I have not drawn any conclusion from the fact the grantee party chose not to accept the native title party’s preferred agreement. In relation to Mr Kohler’s assertions about the content of that agreement, the document was not before the Tribunal and I have not given those assertions any weight. Nor is it appropriate or necessary for me to make any finding regarding the native title party’s conduct in the negotiations. Nevertheless, the parties’ submissions do demonstrate that, whatever the grantee party’s intentions, meaningful consultation will be difficult to achieve given the current relationship between the native title and grantee parties. In the circumstances, any future negotiation or consultation is unlikely to produce outcomes that would significantly reduce the likelihood of interference with the community or social activities of the native title party.
On consideration of the evidence and submissions, I make the following findings:
·Members of the native title party carry on social and community activities from time to time within and adjacent to the proposed licences, including camping, hunting and activities associated with the intergenerational transfer of knowledge.
·The native title party’s ability to hunt has been and continues to be affected by drilling that was not properly rehabilitated.
·The native title party’s social and community activities have been and continue to be carried on subject to prior and existing pastoral and mining interests.
·While the grantee party has indicated that it will not undertake drilling unless the results of the first phase of its exploration programme are favourable, it is possible that drilling will be carried out on the proposed licences. However, there is no evidence to suggest that the grantee party will not comply with conditions requiring rehabilitation.
·Although it is unlikely that meaningful consultation will occur between the grantee party and the native title party in relation to the exploration programme, the activities proposed to be undertaken by the grantee party are unlikely to interfere with the native title party’s social and community activities in a substantial or more than trivial way.
In light these findings, I am satisfied that the grant of the proposed licences is not likely to interfere directly with the community or social activities of the persons who are the holders of the native title in relation to the land or waters concerned.

Sections 237(b) and 237(c)

The native title party did not make any contentions in relation to ss 237(b) or 237(c) and has indicated that it does not seek to pursue its objection in respect of those matters. In any event, there is no evidence that there are sites or areas of particular significance to the native title party within the proposed licences, and there does not appear to be any special topographical, geological or environmental factors that might suggest the possibility of major disturbance to land or waters. Therefore, on the evidence before me, I am satisfied that the proposed licences are unlikely to result in interference or disturbance of the kinds contemplated by ss 237(b) and 237(c).

Determination

The determination of the Tribunal is that the grant of exploration licences E53/1550 and E53/1554 to Echo Resources Ltd are acts attracting the expedited procedure.

Daniel O’Dea
Member
7 May 2013