Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/ Western Australia/Geotech International Pty Ltd

[2006] NNTTA 63

NATIONAL NATIVE TITLE TRIBUNAL

Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/ Western Australia/Geotech International Pty Ltd, [2006] NNTTA 63 (26 May 2006)

Application No:         WO05/712

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

-and-

IN THE MATTER of an inquiry into an expedited procedure objection application

Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People – WC98/40 (native title party)

-and-

The State of Western Australia (Government party)

-and-

Geotech International Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  26 May 2006

Catchwords:   Native title – future act – proposed grant of exploration licence – expedited procedure objection application – not likely to be interference with the carrying on of community or social activities, sites of particular significance or major disturbance to land – act attracts the expedited procedure

Legislation:Native Title Act 1993 (Cth) ss 29, 151(2), 237

Mining Act 1978 (WA) s 20(5), 24, 26, 63

Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18

Cases:Cheinmora v Striker Resources NL & Ors, [1996] 1147 FCA 1; (1996) 142 ALR 21

Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43 [2005] NNTTA 6 (8 March 2005), Hon C J Sumner

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley vWestern Australia [2002] NNTTA 24; (2002) 169 FLR 437

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC

Solicitor for the

native title party:                  Ms Nikki Fyson, Kitto & Kitto Barristers and Solicitors

Representative of the

Government party:               Mr Clyde Lannan, Department of Industry & Resources

Representative of the          Ms Kate Moran, Hetherington Exploration and Mining Title
grantee party:  Services Pty Ltd

REASONS FOR DETERMINATION

Background

1. On 2 November 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E08/1350 (‘the proposed licence’) to Geotech International Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is an act which can be done without the normal negotiations required by s 31 of the Act).

2. On 3 November 2005, Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People (‘the native title party’) made an expedited procedure objection application to the Tribunal relying on all three limbs of s 237 of the Act. The native title party’s application for a determination of native title was entered onto the Register of Native Title Claims from 10 July 1998.

3. The proposed licence comprises an area of some 119.61 square kilometres, 60 kilometres south-westerly of Dampier in the Shire of Roebourne, and is overlapped entirely by the registered claim of the native title party.  The native title claim of the Yaburara and Mardudhunera People (WC96/89) also entirely overlaps the subject area and that of the Kuruma Marthudunera People (WC99/12) overlaps 29.9% of the proposed licence.  As such each of these claim groups is also accorded the status of native title party, but neither group has lodged an objection in relation to the proposed licence.

Conduct of the inquiry

1. In accordance with its normal Procedures under the Right to Negotiate Scheme, on 22 November 2005, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. The directions also allowed a four month period from the s 29 objection closing date for parties to negotiate or finalise agreement over the grant of the tenement via the expedited procedure process. However, by 28 February 2006 it became apparent that negotiations had broken down and an Inquiry became inevitable. Accordingly I approved an amendment to directions to expedite the Inquiry, requiring compliance by the Government party on or before 21 March 2006, native title party compliance on or before 28 March 2006 and that of the grantee party by 4 April 2006.

2. The Government party has complied with directions, and the grantee party has indicated its intention to rely on Government party submissions. On 28 March 2006 the Tribunal received a Statement of Contentions from the native title party and, after some delays to which no objection was received from the other parties, the affidavit of Wilfred Hicks sworn on 24 April 2006. All parties have agreed to the making of a determination on the papers and I am satisfied that I can adequately deal with the matter in this way in accordance with s 151(2) of the Act.

Legal principles

1. 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.’

1. In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[37]). I adopt those findings for the purposes of this inquiry.

Evidence in relation to the proposed act

1. Department of Industry and Resources (‘DoIR’) submissions reveal that the proposed licence area comprises the following tenure:

• Pastoral lease 3114/1027, known as Mardie Station – 76.2%;

• Crown Reserve 9701, Mullewa-De Grey Stock Route – 19.5%

• Crown Reserve 355, watering place for travellers and stock – 2.2%

• Crown Reserve 41651, natural gas pipeline – 0.2%

• State Onshore Pipeline Licence, PL 40 – 0.8%

• Crown Reserves for the purpose of a Telstra Repeater Station site and for Government requirements, and Road Reserves (one of which appears to have reverted to Unallocated Crown Land) amounting to less than 1% of the subject area.

1. There are no Aboriginal communities in the vicinity of the subject area but the Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) documents 15 registered sites partially or entirely within the area of the proposed licence:

• Site ID 6131 – Edward Creek 1, artefact scatter

• Site ID 6132 – Edward Creek 2, engraving

• Site ID 19170 – Engraving Site, engraving

• Site ID 19290 – Eramurra Creek Pool and Camp, mythological and historical, camp and water source

• Site ID 10527 – Gas Pipeline 30, artefact scatter

• Site ID 10528 – Gas Pipeline 31 (Mckay Creek), artefact scatters

• Site ID 10529 – Gas Pipeline 32, artefact scatter

• Site ID 11418 – Irramurra Creek, engraving, artefact scatter and camp

• Site ID 18874 – Grindstones, isolated artefacts and scatter

• Site ID 11815 – Mt Wilkie, artefact scatter

• Site ID 18014 – Pipeline Corridor 15, artefact scatter

• Site ID 18015 – Pipeline Corridor 16, artefact scatter

• Site ID 18007 – Pipeline Corridor 17, artefact scatter

• Site ID 18011 – Pipeline Corridor 21, artefact scatter

• Site ID 18012 – Pipeline Corridor 22, artefact scatter

With the exception of the Engraving Site (ID 19170), which is closed access and restricted to men only, each of these sites is open access with no gender restrictions.  Edward Creek 2, Irramurra Creek, and Pipeline Corridor 15, 17 and 21 are all on the permanent register.  Pipeline Corridor 16 and Pipeline Corridor 22 are stored data and the balance of the sites are on the interim register.

1. The mapping documentation provided by the Government party shows extensive exploration interest in the area of the proposed licence and that adjacent to it.  The Tengraph Quick Appraisal generated on 1 March 2006 shows one active exploration licence and one active miscellaneous licence partially overlapping the subject area, in addition to three pending exploration licences.  A further 11 ‘dead’ exploration licences overlap the subject area to varying degrees, active between 1993 and 1999, although four of those were withdrawn prior to grant.  The area has clearly been the subject of past exploration activity and there is continued interest in the area.  Tribunal documentation reveals that the concerns of native title claimants are evidenced by five objections to the assertion of the expedited procedure, lodged between 1998 and 2001 in relation to three exploration licences overlapping the subject area.

2. The grant of the proposed licences will be subject to the standard endorsements and conditions applicable to all exploration licences in Western Australia as previously set out in Walley at [34] and a number of additional conditions specific to this grant. These include conditions providing for notification to the pastoral lessee of certain exploration activities, restrictions on mining activities in the vicinity of the Geodetic Survey Stations, Reserves for a Repeater Station, a Watering Place and a Natural Gas Pipeline, Aerial Landing Grounds, areas associated with a fibre optic cable and its installation facility, and the North West Coastal Highway, as well as a number of conditions concerned with access, safety, infrastructure construction and mining activities in the vicinity of Gas pipelines and associated Safety Zones. The endorsements also draw the grantee party’s attention to the Environmental Protection Act 1986 and Environmental Protection (Clearing of Native Vegetation) Regulations 2004 and provide that if E08/636 (granted), E08/1023 (pending since 1997) and E47/929 (pending since 1998) are active upon the grant of the proposed licence, those overlap areas will be excluded from its granted area.

3. The Government party will impose the following additional 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 Wong-Goo-Tt-Oo People, the applicants in Federal Court application no. WAD 6256 of 1998 (WC98/40), such request being sent by pre-paid post to reach the Licensee’s address Hetherington Exploration and Mining Title Services Pty not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wong-Goo-Tt-Oo People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Yamatji Land and Sea Council.’

Native title party evidence

1. The native title party has provided the affidavit of Wilfred Hicks in support of its statement of contentions which are also signed by Mr Hicks and are very similar in form.  The affidavit was sworn on 24 April 2006 and the contents are set out hereunder:

   Affidavit of Wilfred Hicks

   ‘I, Wilfred Hicks of Unit 4, 29 Sholl Street, Roebourne, Western Australia, Pensioner make oath and say as follows:

   1.     I am the objector in this matter and a named claimant in the Wong-Goo-Tt-Oo Native Title Group.  I instructed my solicitors to lodge this objection on behalf of the Wong-Goo-Tt-Oo group as a whole and am authorised by the Wong-Goo-Tt-Oo Group to swear this affidavit on their behalf.

   2.     I make this affidavit in support of the Statement of Contentions that have been filed in relation to the application for an exploration license over tenement E08/1350 by Geotech International Pty Ltd.

   3.     The ancestors of the Wong-Goo-Tt-Oo Group were the traditional owners of the Mardie/Balmoral area and held the Dreaming stories and songlines for that area.

   4.     One story relates to the Mardie area and describes the circumstances surrounding the invention of the first boomerang there and explains why the Mardie people traditionally did not circumcise their young men.

   5.     Another story relevant to the tenement in question details the travels of an ancestral snake along the Eramurra Creek.  Rock art in or near the tenement relates to this story, as also does an ancient rock quarry site there.

   6.     Because the Wong-Goo-Tt-Oo Group had had a long association with this area it has been our custom to visit areas around Mardie and Balmoral Stations and their surrounds to hunt for traditional meat foods and to gather traditional vegetable foods, bush medicines and materials for the manufacture of traditional tools and implements.

   7.     If the proposed tenement is granted I am concerned that exploration activities will lead to the evacuation of the area by wild game and vegetable foods and fruit will inevitably be destroyed, which will result in us not being able to carry out our traditional activities.

   8.     Our links with our traditional lands are both spiritual and physical.  The spiritual link is evidenced by physical activities on the land.  If those activities are curtailed or prevented, then our spiritual link is broken.  Once terminated, our group’s social cohesion, based as it is upon the spiritual dimension, may disintegrate.

   9.     I am aware of significant sites located within the proposed tenement.

   10.  I have not yet had the opportunity to conduct a detailed inspection of this area and it has not been possible to obtain the assistance of any experts in identifying sites in this area.

   11.  I am extremely worried about what may happen to our land, and any sites that are on may be destroyed it (sic) if the grantee party does not consult us before commencing work in this area.

   12.  Through our solicitors, the Wong-Goo-Tt-Oo Group have presented a proposed heritage agreement to the Geotech International Pty Ltd which would provide for a mechanism to protect areas or sites of particular significance to us.  This agreement would also define for all the parties what we consider is a major disturbance to the land.  Geotech International Pty Ltd has not entered into this agreement with us.’

2. Mr Hicks is one of six persons who comprise the applicant for native title and the registered native title claimant.  His evidence is uncontested and I accept it and that he has authority to speak on behalf of the Wong-Goo-Tt-Oo native title party.

Community or social activities (s 237(a))

1. For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party.  The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed for exploration licences, s 20(5) in relation to pastoral leasehold areas, and ss 24 and 26 in relation to the Reserve land areas to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.

2. Mr Hicks asserts that the ancestors of the Wong-Goo-Tt-Oo Group were the traditional owners of the Mardie/Balmoral area and that as a result it ‘has been’ the custom of contemporary claim group members to visit Balmoral and Mardie Stations and the surrounding area to hunt and gather traditional foods, bush medicines and materials with which to manufacture traditional tools and implements.  The statement of contentions further asserts that ‘the group’s anthropologist has photographic evidence of these activities’ but neither this photographic evidence nor any submission from an anthropologist has been provided.  The assertion of contemporary activities lacks specificity.  The native title party provides no indication of where members of the claim group live, how regularly the area is visited for hunting and gathering, how recently such activities have taken place nor how many people from the claim group engage in those activities.  Other than the expression of concern that exploration activities will led to the destruction or absence of food sources I cannot find sufficient issues raised by the native title party to suggest that, even if social and community activities were still carried on with any frequency today (and there is no specific evidence that they are), the grant of the proposed licence would adversely affect those activities.  I also note that Mardie pastoral lease covers an area of some 2,206.25 square kilometres and extends over 50 kilometres south west of the southern edge of the proposed licence (and the station homestead is situated at least 22 kilometres south west of the subject area).  The Wong-Goo-Tt-Oo native title claim overlaps the Mardie pastoral lease by 44.1%, providing a wide area over which community and social activities could occur without interference from the grant of the proposed licence.

3. With respect to the native title party’s assertion that large areas of traditional lands will be closed off while exploration activities are carried out, I note that the grant of the proposed licence does not confer exclusive rights of access on the grantee party.  Any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wide area over which any hunting or gathering may occur.  Any restriction would also be temporary.  Further, approximately 22% of the subject area is overlapped by Crown Reserves which are subject to limitation on the exploration activities that may be carried out on them in accordance with the conditions attached to the grant of the proposed licence.

4. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]). The concerns of claimant groups in the area are evidenced by objections lodged in relation to those acts. However, related objection applications have in all cases been resolved either by withdrawal of the objection following agreement between parties, withdrawal of the tenement application prior to objection acceptance, or via a determination by consent that the expedited procedure is not attracted, thereby allowing further negotiations under the right to negotiate provisions of the Act. While I accept that exploration activities can be detrimental to Aboriginal community activities, there is nothing before me evidencing a prior detrimental affect on community and social activities in this area despite evidence of prior and existing mining and pastoral activities which will already have interfered with social and community activities, in addition to activities resulting from the establishment of the gas pipeline. These prior activities make it less likely that further exploration operations will have any substantial or direct effect on community and social activities in the future.

1. The native title party contends that the spirituality of the land and the social cohesion of the community will be diminished by exploration activities (statement of contentions – paras 3 iii and v).  The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’ In this matter the native title party contends that ‘the spiritual link is made manifest and evidenced by physical activities on the land’; however, as I observed in para [26] above, evidence of those physical social and community activities is scant.

2. Taking all these factors into account I find that the activities on the proposed licence will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

1. The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary - Cheinmora v Striker Resources NL & Ors, [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35) significance to the native title party in accordance with their traditions. Fifteen sites are recorded on the Register kept under the Aboriginal Heritage Act but this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence.  The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.  The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.

2. The Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act (to which the grantee party’s attention is drawn upon grant of the proposed licence) and the associated regulatory regime would protect areas or sites of particular significance from interference.  I adopt the findings of the Tribunal in Walley (at [50]-[51]) in relation to the Government party’s regulatory regime and those of the Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]) which found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely.  More recently in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41 [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (‘Vosperton’) (at [70]-[71]) I found that the combined effect of the Government party's revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) which is sent out to each grantee of an exploration or prospecting licence and increase in penalties under the Aboriginal Heritage Act was to enhance the effectiveness of the regulatory regime for the protection of Aboriginal sites.  I adopt those findings for the purpose of this inquiry.  The Tribunal will have regard to whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

3. Mr Hicks deposes that he is ‘aware of significant sites’ located in the proposed licence area but provides no further information on the subject.  The native title party’s statement of contentions provides no additional detail.  Certainly there are a considerable number of registered sites in the subject area but whether those sites, or others, are of particular significance to the native title party is not clear from the evidence provided.  However, I infer that sites such as Eramurra Creek Pool and Camp, Irramurra Creek, Engraving Site and engraving site known as Edward Creek 2 may well be of particular significance to the Wong-Goo-Tt-Oo People.  Mr Hicks’ affidavit is of some assistance in this regard in that he talks of ‘an ancestral snake’ travelling along Eramurra Creek and asserts that rock art and an ancient quarry site relate to this story.  Eramurra Creek travels in a north-south direction through the central portion of the proposed licence and locations such as Eramurra Pool, Eramurra Well and the Eramurra Creek Pool and Camp registered site are undoubtedly located within the proposed licence area.  Further the Irramurra Creek site is located nearby and substantially within the subject area.  Additional information in DIA’s sites register information provided by the Government party indicates that Eramurra Creek Pool and Camp is a camp and water source, and that the Irramurra Creek site is also a camp.  Sites register information also reveals the Engraving Site (ID 19170) as closed access and restricted to men only, from which I infer details in relation to the site are culturally sensitive and therefore that the site is likely to be of particular significance to the native title party in accordance with their traditions.  However, I also note that the map produced by the Tribunal’s Geospatial department locates the Engraving Site just outside the western boundary of the proposed licence although the DIA registered site boundaries (which include a buffer zone) fall partially within the proposed licence.  Unless there is specific evidence from the native title party identifying them as such, artefact scatters are not normally the type of site which is of special significance to native title parties.  On the other hand Mr Hicks’ evidence (esp para 5) when considered with the evidence from the Sites Register enables a finding that there are sites of particular significance to the native title party in accordance with their tradition around Eramurra Creek.  This is so even though Mr Hicks does not specifically link the sites he refers to with those on the Register.

4. I must now consider whether the sites of particular significance established by the evidence within or in the vicinity of the proposed licence are likely to be interfered with given the regulatory regime in place.  Mr Hicks asserts that he has not been able to inspect the subject area and that he has not received any assistance from ‘experts’ in identifying sites in the area but that the native title party offered an agreement to the grantee party which would have provided ‘a mechanism to protect areas or sites of particular significance’ to the claim group.  Mr Hicks deposes that the grantee party did not enter into this agreement although no reasons for this are provided, and expresses concern that sites ‘may be destroyed … if the grantee party does not consult us before commencing work ..’.

5. Appended to the Government party’s statement of contentions is a copy of a Statutory Declaration from the representative for the grantee party, Ms Kathryn Elizabeth Moran, dated 4 October 2005, stating that the grantee party has executed a Regional Standard Heritage Agreement (‘RSHA’) for the Yamatji and Pilbara regions and has offered that agreement to another native title party overlapping the subject area – Kuruma Marthudunera.  In so doing, Ms Moran declares that the grantee party ‘has satisfied the requirements of the State Government policy to include the statement that the intention to grant the applications attracts the expedited procedure for the purposes of the Native Title Act’ (Statutory Declaration – 4 October 2005).

6. I have previously considered the issue of the relevance of RSHAs in expedited procedure inquiries in Vosperton (at [29]-[32])).  I adopt my findings in para [32] for the purposes of this determination that signing a RSHA is a relevant factor which can be taken into account as evidence of a grantee party’s positive intention with respect to the protection of Aboriginal sites.  However, I note in this matter that the Kuruma Marthudunera native title party to which the grantee party has offered the RSHA overlaps the southern part of the proposed licence area by only 29.9% and that with the exception of the men only Engraving Site and Edward Creek 2 (which may be a site of particular significance), those sites judged to be of particular significance to the native title party are located outside the boundaries of that group’s claimed area.  Even if the RSHA between the Kuruma Marthudunera and the grantee party has been fully executed, it does not necessarily afford heritage protection to sites or areas of significance located in the north-eastern part of the proposed licence area which is not covered by this claim.  As the grantee party has provided no contentions on its own behalf no explanation is offered as to why it chose to offer an agreement for heritage protection to the only native title party with a partial overlap, rather than the Yaburara and Mardudhunera People or the Wong-Goo-Tt-Oo People whose claims completely overlaps the subject area.  I can however infer that because neither of these groups is represented by the designated native title representative body for the region, the Yamatji Marlpa Barna Baaba Maaja Aboriginal Corporation (‘YMBBMAC’), they may not accept the RSHA, which is endorsed by YMBBMAC, the Government party and peak industry bodies and the Government party supports a grantee party signing a RSHA even if it does not apply to the whole of a tenement area.

7. The native title party contends that they have had experience where the Aboriginal Heritage Act has been breached but specific details have not been provided and there is nothing to suggest that the grantee party was responsible.  I accept the grantee party is aware of its obligations under the Aboriginal Heritage Act and to consult with the native title party about Aboriginal heritage if the tenement is granted and accept, by virtue of the Statutory Declaration, that it is prepared to enter into a heritage agreement with the Kuruma Marthudunera native title party. Under the Government party’s policy the execution of a RSHA by a grantee party is a pre-condition to the Government party asserting in its s 29 notice that the expedited procedure is attracted. The grantee party had signed the RSHA and sent it to YMBBAMAC before the Government party gave the s 29 notice. In doing so it was complying with the Government party’s policy although I must observe that the policy whereby the Government party will assert the expedited procedure when a grantee party only executes a RSHA in relation to a native title party whose claim partially overlaps a proposed licence area, when there are other registered claims which cover the whole area is somewhat curious. Presumably, as speculated above the Government party finds this satisfactory because it wishes to encourage the use of the RSHA which is acceptable to the Representative Body and not alternatives which are being proposed by other native title parties. I am satisfied that the grantee party, in signing the RSHA in favour of the Kuruma Marthudunera native title party, was complying with the Government party’s policy and the fact that it did not execute the RSHA in favour of the other native title parties does not suggest that it is indifferent to their concerns about heritage and sites of significance to them. Given the negotiations which have occurred the disagreement is not about the protection of Aboriginal heritage as such but the terms of the agreement to achieve it.

8. In any event, the Government party’s proposed condition (para [12] above; Vosperton at [33]) now places an obligation on the grantee party to enter into a RSHA should the
   Wong-Goo-Tt-Oo People decide to accept the RSHA after the licence is granted.  I am not privy to the terms of the Wong-Goo-Tt-Oo alternative heritage agreement and am therefore unable to say if there is anything in it that would more effectively protect Aboriginal sites than the terms of the RSHA.  However, I am aware of the common provisions included in RSHAs (Vosperton at [21]) including the obligation to conduct heritage surveys and that the Representative Body, which has special responsibility under the Act for looking after the interests of native title parties is satisfied that a RSHA will normally provide sufficient protection for Aboriginal sites.

9. I am satisfied that the Government party’s regulatory regime and its proposed condition means that there is no real risk that sites will be interfered with.  The grantee party is now aware of the sites on the Register, aware of the Wong-Goo-Tt-Oo native title party’s concerns about sites, some of which may not be on the Register, although this is not entirely clear.  It is also apparent that at least part of the area has been the subject of a previous site survey for the Gas Pipeline which runs through much of the tenement area.  I also note that Highway 1 (Perth to Karratha Highway) traverses a considerable part of the tenement area.  The area has been the subject of considerable prior development activity, some of which has resulted in the identification of a number of Aboriginal sites.  I am satisfied that the grantee party will comply with its responsibilities under the Aboriginal Heritage Act 1972 (WA) and that the nature and number of sites are not such as to make it a site rich area which would require formal negotiations under the Act to ensure that they are not likely to be interfered with.

Major disturbance (s 237(c))

1. Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely to involve major disturbance to land or likely to create rights whose exercise are likely to involve major disturbance to land. The Tribunal applies the law as enunciated by the Full Federal Court in Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 and more recently in Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005). The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.

2. The native title party contends that the activities permitted by the grant of an exploration licence would constitute major disturbance to land ‘even from the view point of the general community’ and asserts that the heritage protection agreement offered to the grantee would define what the Wong-Goo-Tt-Oo People consider to be major disturbance.  However, the native title party’s definition of what would constitute major disturbance is not decisive in objection inquiries but only one factor to be taken into account for the reason noted in para [30] above.  Further, no specific concerns are raised and no evidence provided as to past occasions when major disturbance might have resulted from the grant of exploration tenements, despite the existence of a gas pipeline and associated infrastructure in the subject area.  The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place.  It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land.  In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (Linda Champion on behalf of the Central West Goldfields People/Western Australia/Internickel Australia Pty Ltd, NNTT WO04/43 [2005] NNTTA 6 (8 March 2005), Hon C J Sumner and cases cited therein at [50]).

3. In making a finding on this point I have had regard to the fact that there are no Aboriginal communities in the vicinity; most of the proposed licence is over pastoral lease where ground disturbance has already been and will continue to be carried out; there is extensive history of mining and exploration in the vicinity, including the laying of a gas pipeline that a major highway traverses the tenement area; that the presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime governing exploration activities and the conditions imposed on the exploration licence dealing with ground disturbing activities, including requirement for rehabilitation of the land (esp. standard conditions 1-4 and the endorsement in relation to the Environmental Protection Act and Environmental Protection (Clearing of Native Vegetation) Regulations).  I find that there is not likely to be major disturbance to land in this case

Determination

1. The determination of the Tribunal is that the grant of exploration licence E08/1350 to Geotech International Pty Ltd is an act attracting the expedited procedure.

Hon C J Sumner
Deputy President

26 May 2006