Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Mark Lockyer and Others on behalf of Kuruma Marthudunera/Western Australia/Mineralogy Pty Ltd
[2008] NNTTA 3
•14 January 2008
NATIONAL NATIVE TITLE TRIBUNAL
Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Mark Lockyer and Others on behalf of Kuruma Marthudunera/Western Australia/Mineralogy Pty Ltd, [2008] NNTTA 3 (14 January 2008)
Application Nos: WO06/732, WO07/204 and WO07/205
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Wilfred Hicks and Others on behalf of Wong-Goo-Tt-Oo (WC98/40) (WO06/732) (Wong-goo-tt-oo native title party)
-and-
Mark Lockyer and Others on behalf of Kuruma Marthudunera (WC99/12) (WO07/204 and WO07/205) (Kuruma Marthudunera native title party)
- and -
The State of Western Australia (Government party)
- and -
Mineralogy 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: 14 January 2008
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – whether area ‘site rich’ – whether grantee party failed to consult adequately – misleading evidence from grantee party – relationship difficulties between native title party and grantee party– findings of previous determination adopted – relevance of behaviour of grantee party to predictive assessment required under s 237(b) Native Title Act – presumption of regularity applies – act attracts expedited procedure applies
Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 146, 237
Aboriginal Heritage Act 1972 (WA), s 18, 62
Mining Act 1978 (WA), ss 20(5), 63
Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, NNTT WO03/925 [2006] NNTTA 133 (5 October 2006), John Sosso
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, NNTT WO06/503-507, [2007] NNTTA 82 (17 September 2007), Hon C J Sumner
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/Western Australia/Geotech International Pty Ltd, NNTT WO05/712, [2006] NNTTA 63 (26 May 2006), Hon C J Sumner
Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/ Western Australia/ Red River Resources Ltd, NNTT WO06/228, [2007] NNTTA 30 (30 March 2007), Hon C J Sumner
Hearing Date: 28 November 2007
Solicitors for the
Wong-goo-tt-oo
native title party: Kitto & Kitto, Barristers and Solicitors
Counsel for the
Kuruma Marthudunera
native title party: Mr Stephen Wright
Representative of the
Kuruma Marthudunera
native title party: Ms Giselle Harris, Pilbara Native Title Service
Representatives of the Mr Phil Mirabella, Department of Industry and Resources
Government party: Mr Clyde Lannan, Department of Industry and Resources
Representative of the
grantee party: Ms Baljeet Singh, Mineralogy Pty Ltd
REASONS FOR DETERMINATION
On 6 December 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of its intention to grant exploration licences E08/1414 and E08/1451 (‘the proposed licences’) to Mineralogy Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
Proposed licence E08/1414 comprises an area of 137.32 square kilometres and is located 64 kilometres northwesterly of Pannawonica in the Shire of Roebourne. 100 per cent of the proposed licence is overlapped by both the Yaburara & Mardudhunera registered native title claim (WC96/89, registered from 1 August 1996) and the Kuruma Marthudundera combined registered claim (WC99/12, registered from 24 June 1999). 23.34 per cent is overlapped on its eastern side by the Wong-goo-tt-oo registered claim (WC98/40, registered from 10 July 1998).
Proposed licence E08/1451 adjoins E08/1414 to the south and comprises an area of 223.32 square kilometres and is located 52 kilometres northwesterly of Pannawonica in the Shire of Roebourne. 100 per cent of the proposed licence is overlapped by both the Yaburara & Mardudhunera registered claim (WC96/89, registered from 1 August 1996) and the Kuruma Marthudunera combined registered claim (WC99/12, registered from 24 June 1999). There is no overlap with the Wong-goo-tt-oo claim.
The proposed licences are to be part of the grantee party’s Cape Preston Project (‘the Project’) which extends some 50 kilometres inland from Cape Preston in the vicinity of the Balmoral and Mardie Pastoral Stations and the Fortescue River. The Project was sanctioned by special legislation (Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002). Several exploration and mining and mining infrastructure tenements have already been granted for the Project and various other companies are involved in it as co-proponents. The Project involves the mining and processing of iron ore including the setting up of new port facilities. Proposed licence E08/1451 is wholly within the area covered by the Agreement Act but E08/1414 is predominantly outside it. Nevertheless, I can safely infer that exploration over E08/1414 will be with a view to this area becoming part of the overall Project.
On 8 December 2006, an expedited procedure objection application was lodged with the Tribunal by Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo (WC98/40) (‘the Wong-Goo-Too native title party’) in relation to E08/1414 (WO06/732).
On 3 April 2007, expedited procedure objection applications were lodged on behalf of Kuruma Marthudunera combined (WC99/12) (‘the Kuruma Marthudunera native title party’) in relation to E08/1414 (WO07/204) and EO08/1451 (WO07/205). No objections were lodged on behalf of Yaburara & Mardudhunera in relation to either tenement.
In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections (i.e. after 6 April 2007), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
With respect to WO06/732, at the preliminary conference on 17 April 2007, the grantee party advised that the terms of the Wong-goo-tt-oo native title party’s heritage protection agreement were not acceptable and requested that the matter proceed to inquiry. With the agreement of parties, directions were brought forward to provide a reduced time for the lodging of contentions and evidence. At a Listing Hearing on 21 June 2007 parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’ that is, without holding a further hearing. I was satisfied that this objection could be adequately determined on the papers (s 151(2) NTA).
Notwithstanding the fact that WO06/732 could be determined on the papers I decided given that two of the objections related to the same proposed licence (E08/1414) the inquiry should cover all three matters (s 140 NTA). The Wong-goo-tt-oo native title party was informed of the subsequent hearing dates for WO07/204 and WO07/205 but declined to participate.
With respect to WO07/204 and WO 07/205, at a preliminary conference on 29 May 2007, the grantee party reported that the Regional Standard Heritage Agreement (‘RSHA’) was preferred to the Kuruma Marthudunera native title party’s alternative heritage agreement and requested the matter proceed to inquiry. Parties subsequently agreed the matter proceed to inquiry in line with the original directions and the Kuruma Marthudunera native title party advised it would attempt to negotiate with the grantee party in the interim.
The Government party lodged its contentions by 18 June 2007, the native title party by 16 July 2007 and the grantee party by 6 August 2007.
At a Listing Hearing on 10 August 2007 counsel for the Kuruma Marthudunera native title party (Mr Stephen Wright) requested an on country hearing in order that witnesses from the claim group could give oral evidence. If that request was not granted, Mr Wright sought leave to submit further affidavits and to cross examine Mr Vimal Sharma, Managing Director of Mineralogy in relation to his affidavit. The grantee party supported by the Government party requested the matter be determined ‘on the papers’. I adjourned the matters to consider the parties’ submissions and subsequently advised parties that the Tribunal is usually able to conduct objection inquiries without a hearing on country and on the information before the Tribunal a hearing on country was not justified. I advised that the information provided would need to be supplemented by detail of the hearing’s purpose and the witnesses to be called if further consideration was to be given to the Kuruma Marthudunera native title party’s request. The parties were also advised of the Tribunal’s preliminary view that leave should be given to cross-examine Mr Sharma about past Aboriginal site surveys and an application made by the grantee party pursuant to s 18 of the Aboriginal Heritage Act 1972 (WA) to disturb sites on a number of tenements including the proposed licences.
At a Directions Hearing on 3 September 2007 the grantee party made application that the objections be dismissed under s 148(b) of the Act (failure of the applicant to proceed with the application within a reasonable time or to comply with a direction by the Tribunal in relation to the application). Mr Wright sought leave to file two additional affidavits and renewed his application for leave to cross examine Mr Sharma. I decided not to dismiss the objections and directed that the Kuruma Marthudunera native title party submit its additional affidavits by 4 September 2007 with the grantee party to respond by 11 September 2007. In the interim, I ordered that mediation assistance be provided by way of a s 150 conference to assist parties in resolving the objections by agreement. Should the matters not be resolved by s 150 assistance, I directed that a cross examination hearing be held for the purposes specified by Mr Wright.
The Kuruma Marthudunera native title party filed its additional affidavits by 4 September 2007. The grantee party also lodged an additional affidavit on the same date and further material on 15 October 2007 after two requests for extension which were agreed to by all parties.
On 10 October 2007 the s 150 Tribunal Member appointed to provide mediation assistance to the parties terminated the conferences as no agreement could be reached.
On 26 October 2007 at a Listing Hearing the parties confirmed that all their documentary evidence had been lodged and I directed that the cross examination would occur on 28 November 2007 following which final oral submissions could be made. Prior to the hearing further affidavits were lodged by Mr Sharma and on behalf of the native title parties.
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] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal 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]–[35]). I adopt those findings for the purposes of this inquiry while noting that the Mining Act has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been modified (see below paras [22]-[23]). With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) rejected an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision has now been appealed to the Full Federal Court and judgment was reserved on 16 November 2007. It is possible that some of the issues raised in this appeal will be relevant to the present matters in relation to s 237(b). Mr Wright for the Kuruma Marthudunera native title party acknowledged that the Tribunal should proceed on the basis of existing Federal Court and Tribunal authority but formally preserved his client’s position for appeal purposes should the appeal in Maitland Parker result in a decision that has an impact on these proceedings.
Government party evidence in relation to E08/1414
Government party documentation establishes the following underlying land tenure and notation areas on E08/1414:
Mardie Station Pastoral Lease 3114/1027 (75.2 per cent overlap)
Common Reserve 9701 - De Grey Mullewa Stock Route (19.9 per cent overlap)
5 Vacant Crown land parcels (totalling no more than 3 per cent overlap)
Common Reserve 378 - watering places for travellers and stock (1.7 per cent overlap)
Petroleum Exploration Permit Application 10/06-7 (1.3 per cent overlap)
Common Reserve 381 – water (0.3 per cent overlap)
1 Private Land parcel (less than 0.1 per cent overlap)
6 Road Reserves (each overlapping at less than 0.1 per cent)
Department of Industry and Resources Major Projects File Notation Area 7652 (21.3 per cent overlap)
Department of Industry and Resources Section 19 Area 73 (14.3 per cent overlap)
The documentation notes that there are no Aboriginal communities in or adjacent to E08/1414.
The documentation also notes there has been some mining and exploration activity over parts of the area of E08/1414. All ‘live’ tenements are held by the grantee party being one exploration licence granted in 1993 overlapping at 2.9 per cent and six mining leases granted in 1992 overlapping at 1.3, 0.8, 0.7, 1.4, 2.1 and 0.2 per cent respectively. One ‘pending’ exploration licence (E08/1451 – also the subject of these proceedings) and one ‘pending’ miscellaneous licence have been applied for by the grantee party and overlap at 13.9 and 0.5 per cent respectively. ‘Dead’ tenements include four ‘surrendered’ exploration licences live between 1982-1983 overlapping at 52.6 per cent; 1993-1996 at 14.3 per cent; 1996-1998 at 1.3 percent; and 2001-2002 at 75.1 per cent. Other dead tenements include five forfeited temporary reserves live between 1965-1977 (overlapping at 3.9, 9.3, 14.9, 31.9 and 76.6 per cent).
The grant of E08/1414 will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia:
‘1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Industry and Resources (DoIR). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DoIR.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the Environmental Officer, DoIR is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.’
These conditions are stronger than those considered in Walley. In particular Condition 2 now contains the additional requirement that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act (inserted post Walley) which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment the program of work for exploration requires a grantee party: to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from them that the proposed activities are acceptable.
Additional conditions imposed relate to:
Providing notification to the pastoral or grazing lessee, of the grant of the licences and of certain exploration activities (conditions 5–6);
Obtaining prior written consent from the Minister responsible for State Development before commencing mining on Watering Place for Travellers and Stock Reserve 378, Water Reserve 381, and Navigable Waters (condition 7);
The rights of ingress to and egress from Miscellaneous Licence 08/22 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence (condition 8); and
Consent to mine on Stock Route Reserve 9701 granted subject to no mining operations being carried out which restrict the use of the reserve (condition 9).
The following relevant Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA), 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 grant of this licence does not include the land the subject of prior Exploration Licence 08/660. If the prior licence expires, is surrendered or forfeited that land may be included in this licence.
The licensee pursuant to the approval of the Minister for State Development under section 111 of the Mining Act 1978 (WA) is authorised to explore for iron.
The Government party will also impose the following condition giving the Kuruma Marthudunera native title party the option to agree to a RSHA with the grantee party within a specified time after the grant:
“In respect of the area covered by the licence the Licensee, if so requested in writing by the Kurrama Marthudunera People, the applicants in Federal Court application no. WAD 6090 of 1998 (WC99/12), such request being sent by pre-paid post to reach the Licensee’s address Baljeet Singh, Legal Counsel, Mineralogy Pty Ltd, P O Box 7334, Cloisters Square, Perth WA 6850 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Kurrama Marthudunera People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Pilbara native title service.”
The Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) shows two registered sites (Cape Preston 1 - Site ID 18804) (Cape Preston 30 – Site ID 18833)) partially or entirely within the area of E08/1414 and near its eastern side. Both sites are on the permanent Register, defined as open access with no gender restrictions and contain archaeological artefacts or scatters.
Government party evidence in relation to E08/1451
Government party documentation establishes the following underlying land tenure and notation areas on E08/1451:
Mardie Station Pastoral Lease 3114/1027 (98.5 per cent overlap)
Petroleum Exploration Permit Application 10/06-7 (7.8 per cent overlap)
Common Reserve 9701 - De Grey Mullewa Stock Route (1.1 per cent overlap)
State Onshore Pipeline Licence PL40 (PPA69)(0.3 per cent overlap)
3 Road Reserves (each overlapping at less than 0.1 per cent)
Department of Industry and Resources Major Projects File Notation Area 7652 (97.9 per cent overlap)
Department of Industry and Resources Section 19 Area 73 (95.4 per cent overlap)
Western Power File Notation Area 1370 (0.9 per cent overlap)
Department of Resources Development File Notation Area 3259 (0.6 per cent overlap)
Department of Industry and Resources File Notation Area 3928 (0.3 per cent overlap)
Telstra File Notation Area 979 (0.1 per cent overlap)
The documentation notes that there are no Aboriginal communities in or adjacent to E08/1451.
The documentation also notes there has been some mining and exploration activity over the area of E08/1451. All ‘live’ tenements are held by the grantee party being two exploration licences granted in 1985 and 1993 each overlapping at 2.5 per cent. ‘Pending’ exploration licence E08/1414 (also the subject of these proceedings) overlaps at 8.6 per cent. ‘Dead’ tenements include five ‘surrendered’ exploration licences live between 1982-1983 overlapping at 23.4 and 56.9 per cent; 1993-1996 at 97.5 per cent; 1996-1998 at 0.3 percent; and 1998-1999 at 0.5 per cent. Other dead tenements include four forfeited temporary reserves live between 1965-1977 (overlapping at 0.1, 3, 9.3 and 17.7 per cent).
The grant of E08/1451 will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see para [22] above). Additional conditions to be imposed relate to:
providing notification to the pastoral or grazing lessee, of the grant of the licences and of certain exploration activities (conditions 5–6);
no excavation, excepting shafts, approaching closer to the North West Coastal Highway verge or road reserve than a distance equal to twice the depth of the excavation and mining being confined to below a depth of 30 metres from the natural surface and on any other road or road verge to below a depth of 15 metres from the natural surface (condition 7);
no interference with the optic fibre cable or installations and the rights of ingress to and egress from the facility being at all times preserved (condition 8);
no mining within 25 metres of either side of the Gas pipelines contained in file notation areas 1370, 3259 and 3928, no surface excavation approaching closer to the boundary of the Safety Zones noted therein than a distance equal to three times the depth of the excavation, no excavation, drilling, installation deposits, structures or materials of any nature whatsoever without the prior written approval of the State Mining Engineer, no interference with the drainage pattern, no parking, storage or movement of equipment or vehicles without prior approval of the Gas pipeline operators, no explosives to be used or stored within 150 metres of the Gas pipelines without the prior written approval of the State Mining Engineer, mining on the Safety Zones being confined to below a depth of 50 metres from the natural surface unless otherwise approved by the State Mining Engineer, rights of ingress to and egress from the pipeline easements being at all times preserved, and such other conditions as may from time to time be imposed by the Minister for State Development for the purpose of protecting the Gas pipelines (conditions 9-16);
no interference with the Geodetic Survey Stations YLA 9, YLA 10, KAP 5, MJ 6 and MJ 61 and the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface (conditions 17-18); and
consent to mine on Stock Route Reserve 9701 granted subject to no mining operations being carried out which restrict the use of the reserve (condition 19).
Endorsements in the same terms as those to be imposed in relation to E08/1414 and set out above in para [25] (i) and (iii) will be imposed.
The condition referred to in para [26] above giving the Kuruma Marthudunera native title party the option to enter into a RSHA after grant will also be imposed.
The Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) shows seven open access registered sites partially or entirely within the area of E08/1451 as follows:-
Site ID 8282 - Natgas 255, artefacts/scatter, stored data
Site ID 10351 - Wiruwandi Plain, mythological, permanent register
Site ID 10536 – Gas Pipeline 39, artefacts/scatter, interim register
Site ID 10537 – Gas Pipeline 40, artefacts/scatter, interim register
Site ID 11409 – Mardie Station A, engraving/artefacts/scatter, permanent register
Site ID 11410 – Mardie Station B, engraving/artefacts/scatter, permanent register
Site ID 18024 – Pipeline Corridor 31, quarry/artefacts/scatter, permanent register
Findings in relation to WO06/732 – the Wong-goo-tt-oo native title party
In support of their contentions, the Wong-goo-tt-oo native title party provided the affidavit of Wilfred Hicks dated 23 May 2007 made in the following terms:
‘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 E08/1414 by Mineralogy Pty Ltd.
3.The ancestors of the Wong-Goo-Tt-Oo Group were the traditional owners of the Karratha to Mardie Stations area and held the Dreaming stories and songlines for that area.
4.One story relates to the creation of the Maitland and Fortescue Rivers, the first humans on the Pilbara coast and the manufacture of the first boomerang, as are other sacred and significant aboriginal sites.
5.Rock art in or near the tenement relates to these stories, 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 the tenements and 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 fruits 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 if the grantee party does not consult us before commencing work in this area.
12.I have conducted previous inspections for the grantee party in other tenements the grantee party have been conducting work in and the Wong-Goo-Tt-Oo Group have always had a good relationship with the grantee party. The grantee party have previously signed heritage agreements that have been proposed to them by the Wong-Goo-Tt-Oo Group.
13.Through our solicitors, the Wong-Goo-Tt-Oo Group have presented a proposed heritage agreement to Mineralogy 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. Mineralogy Pty Ltd has not entered into this agreement with us.’
The evidence of Mr Hicks is uncontested and I accept it. Mr Hicks is one of the persons comprising the Wong-goo-tt-oo applicant for native title and I accept that he has authority to speak on behalf of the Wong-goo-tt-oo native title party.
In support of its contentions, the grantee party provided an affidavit of Vimal Kumar Sharma, Managing Director of Mineralogy Pty Ltd, dated 6 June 2007. Mr Sharma states that after the launch of Mineralogy and the opening of its permanent office in Perth in 1999 it took steps to inform State and Local Governments, the public and people of the Pilbara region (including the Wong-goo-tt-oo People and other native title claimants) about its Cape Preston Project. These steps included a public meeting in Roebourne Community Centre on 19 and 20 February 2001 and subsequent discussions with relevant claimant groups both before and after this meeting. According to Mr Sharma, discussions occurred with individual members and representatives of the Kuruma Marthudunera, Injibandi, Ngaluma, Yaburra Mardudhunera and Wong-goo-tt-oo Peoples and the Pilbara Native Title Service (‘PNTS’ – the service arm of Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) the native title representative body for the area). In preparation for the meeting letters were sent to all Aboriginal interests in the Project area. All of the above claim groups were represented at the community meeting, which was attended by 26 claimants as well as the PNTS and Department of Resources Development. The claimants were advised that heritage consultants had been appointed by the grantee party. At the Roebourne meeting the grantee party explained its project and requested the appointment of one or two representatives from each group for further discussion on heritage matters. Subsequently, the grantee party wrote to each claimant group inviting them to nominate two representatives who could participate in the heritage survey and sent letters to individual members of the claimant groups with further information about the heritage survey and a suggestion that they contact the relevant representative if they were interested in participating in the survey. In 2001 advertisements were placed in relevant newspapers about the survey. Following the conduct of the survey, copies were made available to the then Department of Aboriginal Affairs (now Department of Indigenous Affairs (DIA)), the Wong-goo-too native title party and other interested persons. Mr Sharma says the grantee party was not contacted or made aware of any outstanding issues arising from the survey, something which the Kuruma Marthudunera native title party disputes (see below).
The Wong-goo-tt-oo native title party contended (para 4(v)) that they have on numerous instances experienced the breach of both the spirit and letter of the Aboriginal Heritage Act but no evidence to support this contention was provided. Mr Sharma refutes the Wong-goo-tt-oo native title party’s contention if it was intended to be directed at the grantee party. He further says that he has, since 1999, had a good working relationship with the Wong-goo-tt-oo native title party and particularly Mr Wilfred Hicks which he will endeavour to maintain.
The two heritage surveys referred to by Mr Sharma (‘the Cape Preston Surveys’) were established by other evidence to be:
Report on an Archaeological Survey for Aboriginal Sites, Cape Preston, Western Australia, Quartermaine Consultants Sally McGann, May 2001 (DIA Aboriginal Heritage Inquiry No. 1335); and
Report on an Ethnographic Survey of the Proposed Cape Preston Iron Ore Mine and Treatment Plant, R O’Connor, June 2001 (DIA Aboriginal Heritage Inquiry No. 1364).
In relation to WO07/732 the evidence of Mr Sharma is uncontested by the Wong-goo-tt-oo native title party but it is necessary to make one clarification of it. DIA Aboriginal Heritage Inquiry System documentation provided by the grantee party and searches of the System undertaken by Tribunal staff indicate that the Cape Preston Surveys occurred over a substantial part of the Project area but only included 6.4 per percent of the proposed licence area E08/1414 on its eastern side. The Cape Preston Surveys did not cover E08/1451 (see below).
The DIA Inquiry System also indicates that an archaeological and ethnographic site identification survey for Rio Tinto Exploration Pty Ltd was undertaken in 2001 over ‘dead’ exploration licence E08/1138 (Exhibit NNTT 2). This survey covered 74.9 per cent of the area of proposed licence E08/1414.
Community or social activities (s 237(a)) - Wong-goo-tt-oo native title party
The Tribunal is required to make a predictive assessment of whether the grant of the E08/1414 and activities undertaken pursuant to it are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([23]). Direct interference involves an evaluative judgement 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 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
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 on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The issue under s 237(a) is whether the extent of community or social activities, established by the evidence, is such that exploration is likely to interfere with them. Mr Hicks’ affidavit evidence is very similar to that provided by him in Wilfred Hicks a named applicant and representative of the Wong-Goo-Tt-Oo People/Western Australia/Geotech International Pty Ltd, NNTT WO05/712, [2006] NNTTA 63 (26 May 2006), Hon C J Sumner (‘Wilfred Hicks/Geotech’) and Mr Wilfred Hicks and Others on behalf of Wong-goo-tt-oo/Western Australia/Red River Resources Ltd, NNTT WO06/228, [2007] NNTTA 30 (30 March 2007), Hon C J Sumner (‘Wilfred Hicks/Red River’) although the place names and stories are somewhat different. In those matters the Tribunal found that the expedited procedure was attracted. The exploration licences the subject of those matters were located to the north and east of E08/1414, the exploration licence area in Wilfred Hicks/Geotech being some 10 kilometres at its southern most point from the eastern side of E08/1414. With respect to s 237(a) the evidence in those matters is virtually identical to that in the present one and I have come to a similar conclusion namely that there is not likely to be direct interference with the Wong-goo-tt-oo native title party’s community or social activities.
I adopt the relevant findings from my determination in Wilfred Hicks/Geotech at [16]. At paragraph 6 of his affidavit in the present matter, Mr Hicks deposes that “it has been our custom to visit areas around the tenements and 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.” As in Wilfred Hicks/Geotech the stated activity is said to have occurred in the past. The evidence of Mr Hicks of contemporary activity lacks specificity as no information is given as to the frequency or numbers of persons involved in these activities or any specific location of those activities.
The Wong-goo-tt-oo native title party contends that large areas of traditional land will be closed off while exploration activities are carried out (Contention – paragraph 3(ii)). This is not supported by the evidence or the nature of exploration activity. The Tribunal is entitled to have regard to the fact (as it has in numerous expedited procedure objection matters) that the grantee party’s access to the area would be limited to the area in which exploration is taking place and temporary. The grantee party does not gain exclusive rights of access by virtue of the grant of an exploration licence. I adopt the relevant findings at paragraphs [16] and [17] Wilfred Hicks/Geotech.
As in Wilfred Hicks/Geotech and Wilfred Hicks/Red River the evidence in the present matter establishes the existence of some prior exploration and current pastoral activities in the area of E08/1414 and such existence may be taken into account when assessing whether the grant of an exploration licence is likely to further affect the community or social activities of a native title party (Smith at [26]-[28]; Walley at [12]). The De Grey Mullewa stock route also exists over almost 20 per cent of E08/1414. I adopt the relevant findings at paragraph [18] of Wilfred Hicks/Geotech) to find that the prior mining and pastoral activities make it less likely that exploration activity will have any further substantial or direct effect on the relatively limited current community or social activities of the Wong-goo-tt-oo native title party.
With respect to the Wong-goo-tt-oo native title party’s contentions that the spirituality of the land and social cohesion of the community will be diminished by exploration (Contentions – paras 3(iii) and (v)), I adopt my findings in Wilfred Hicks/Geotech at paragraph [19]. There is scant evidence of the current community or social activities of the Wong-goo-tt-oo native title party whether or not related to the spirituality of the land or that the social cohesion of the community will be diminished beyond what I can infer will already have occurred to the traditional society since European settlement.
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. This is such a case. My finding is that given the nature and extent of the Wong-goo-tt-oo community and social activities they are not likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine 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) significance to the native title party in accordance with their traditions. (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35) There are two archaeological sites recorded within or overlapping E08/1414, identified as a result of the Cape Preston archaeological survey, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the vicinity. The Register of Aboriginal sites kept under the Aboriginal Heritage Act 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.
In considering Mr Hicks’ evidence I have taken into account that the Cape Preston surveys in which he participated only covered a small part of proposed licence E08/1414 (6.4 per cent) on its eastern side including the area covered by the Wong-goo-tt-oo claim and did not cover all of the Fortescue River where it runs through the proposed licence area. I am satisfied that the evidence of Mr Hicks can be accepted as dealing (at least in part ) with areas not the subject of the Cape Preston surveys.
Mr Hicks’ evidence with respect to sites contained in paras 4, 5 and 9 of his affidavit is very brief and not very specific about the nature of the sites or their location. In summary, Mr Hicks evidence (which is not contested) establishes that:
there is a Dreaming story relating to the creation of the Maitland and Fortescue Rivers, the first humans on the Pilbara coast, and manufacture of the first boomerang;
there is rock art and a rock quarry in or near the area; and
other significant sites exist within the area.
The Fortescue River runs north/south through E08/1414 and within the
Wong-goo-tt-oo claim area and is referred to by Mr Hicks as significant and related to a creation Dreaming story. On the face it this site is one of the kind referred to in s 237(b). The evidence relating to the Maitland River is not relevant as Maitland River is some 60 kilometres to the east of E08/1414. The importance of the Fortescue River to the native title parties is confirmed by other evidence filed in relation to the Kuruma Marthudunera objections. Ms Anne Wally (affidavit of 28 February 2003 –para 9) refers to Wanda (Spirits) and the spirits of old people that live along the river (see [73] below).My finding is that the Fortescue River (or at least parts of it) is a site of particular significance to the Wong-goo-ttoo native title party in accordance with its traditions.My finding in relation Fortescue River is consistent with my findings in relation to sites of particular significance in Wilfred Hicks/Red River based on evidence from Mr Hicks of a similar nature albeit related to the Maitland and Yanyare rivers
The existence of other sites of particular significance within the Wong-goo-tt-oo claim area covered by E08/1414 is more problematic but on balance I find that there are likely to be other such sites. The affidavit of Ms Roina Williams date 27 November 2007 (para 5) refers to the existence of significant ethnographic sites in the areas of mining leases already granted some of which overlap the eastern end of E08/1414 (see [75] below). She is of the view that similar sites are likely to exist in the areas of the proposed licences. She refers to rock engravings, men’s and Law sites which is corroborative of Mr Hicks evidence at least in relation to rock art sites.
With respect to the two Cape Preston archaeological sites these are not referred to by Mr Hicks as sites of particular significance despite his participation in the survey and because of their nature (archaeological artefacts or scatters with open access and no gender restrictions) and in the absence of further evidence relating to them I do not consider them to be sites of particular significance to the Wong-goo-tt-oo native title party.
The Wong-goo-tt-oo native title party contends that the proposed exploration is highly likely to result in interference with sites of particular significance and that the Aboriginal Heritage Act does not provide sufficient protection against it. It says consultation will be necessary with the Wong-goo-tt-oo native title party to ensure no interference with sites which are not on the Register and the grantee party has declined to enter into the Wong-goo-tt-oo agreement which would ensure that this happens. Although not identical these contentions raise similar issues to those made by the Kuruma Marthudunera native title party and it is convenient to consider them together (at [71]-[110] below).
Major disturbance to land and waters (s 237(c))
In Wilfred Hicks/Geotech I made the following findings:
‘[30]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.
[31]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]).
[32]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.’
Even though the gas pipeline and major highway do not traverse E08/1414 the facts of the present matter are sufficiently similar to those in Wilfred Hicks/Geotech (in that most of the proposed licence is sufficiently over pastoral lease where ground disturbance has already been and will continue to be carried out and there is a history of exploration in the vicinity) to enable me to adopt the relevant parts of paras [30]-[32] of that determination and find that the grant of E08/1414 is unlikely to cause major disturbance to land or create rights which do so.
Findings in relation to WO07/204 and WO07/205 - Kuruma Marthudunera native title party
The Kuruma Marthudunera native title party contend that the grant of the proposed licences do not attract the expedited procedure because they are likely to cause the interference referred to in ss 237(a) and 237(b) of the Native Title Act. No contention is made in relation to paragraph 237(c). They refer to the Tribunal determination made by Member (now Deputy President) John Sosso on 5 October 2006 in WO03/925 (Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, NNTT WO03/925 [2006] NNTTA 133 (5 October 2006), John Sosso (‘Mark Lockyer 2006’)) that the expedited procedure was attracted in relation to exploration licence E08/1331. This case involved the same parties as the present matter. Exploration licence E08/1331 is located some 5 kilometres to the south of E08/1414 and adjoins E08/1451 to the east. The Kuruma Marthudunera native title party contend that the determination in Mark Lockyer 2006 was based on the evidence and contentions presented in that inquiry and are not determinative of the issues in the present one. I accept this contention with the following qualification. While the decision in Mark Lockyer 2006 is not necessarily determinative of the issues in the present inquiry (for instance, there may be fresh evidence that has been produced) neither can Member Sosso’s findings be ignored. Given the proximity to the proposed licences and the similar evidence produced I am entitled, where relevant, to rely on Member Sosso’s findings and give appropriate weight to them. In fact the Kuruma Marthudunera native title party relies on the same evidence produced in Mark Lockyer 2006, particularly the detailed affidavit of Neil Ricky Finlay dated 27 July 2006 (set out in full at para [13] of that determination). In my view, the law set out by Member Sosso is correct and the issue in the present case is whether the evidence presented (including that which was before Member Sosso) leads to a different conclusion.
Because Mr Finlay’s affidavit of 27 July 2006 is comprehensive in its coverage of the issues which have been raised in the present inquiry, I set it out again in full. Mr Finlay is one of the five persons who collectively comprises the applicant for the Kuruma Marthudunera combined native title determination application and I am satisfied that he has the relevant authority to speak on behalf of the claim group.
“I can speak for this country
1. I am an elder and lawman of the Kuruma Marthudunera people and a member of the Kuruma Marthudunera native title claim (WAG 6090/98)
2. I have seen a map, which shows the location of the proposed exploration licence E0801331 (“Licence”). I can speak for that country.
3. I am familiar with the area of Mardie Station, and Balmoral Outcamp where the proposed tenement will be located. I was born at Red Hill station and grew up at Yalleen station. I would visit Mardie station with my family every year during Easter and Christmas holidays. Mardie station families were Marthudunera. My family is Kuruma but the Marthudunera and Kuruma people were joined together in the dreamtime. There is a story about that. When the land was still soft and the rules were still being made, the Kuruma and Marthudunera people arranged to fight. The Kuruma wanted a hill that was in Marthudunera country, on the ocean side of where Mardie Station is now. The Kuruma people won that fight and took the hill across the country to where it is now, near Robe River. The name of that hill, Palabuni (Pannawonica Hill) is a Marthudunera name yet it is in the Kuruma country. You can still see the tract across the country where the Hill went. Since then, the Kuruma and Marthudunera have been together. It is because of this relationship between Kuruma and Marthudunera people that I am allowed to speak for some places in Marthudunera country today..
4. The old Marthudunera people would take me with them to visit places around Mardie station and it is those places that I can still go to now and that I still know about today.
5. There is a story about Wiruwantdi Plain, Mt Nicholson and Chuerdoo Pool. Those places are linked together by that Story. At Chuerdoo Pool there is a permanent soak where the water comes up from the bed of the Fortescue River, even when it is very dry. This is in the area of the proposed licence.
6. I am allowed to use water in this soak for drinking and fishing when I go hunting, camping or visiting the Mardie station area. Animals that I hunt, like kangaroo and bush turkey, also use it for drinking. Our old people camped there too.
7. In traditional law, our rights to land include rights to water. Apart from using the water when hunting, fishing, camping or visiting, some water places might be dangerous and it is my responsibility to protect these places and to protect other people from them. There might be spirits there that can hurt people. If people get hurt, then the trouble comes back to my people and me.
I understand what Mineralogy is proposing
8. I have been told by my lawyers and I believe that Mineralogy is seeking an exploration licence. I am aware of what this entitles them to do by law.
Mineralogy refuses to properly meet and consult in the proper way with the KM working group
9. Mineralogy have not met with the KM working group since 2004.
10. My lawyers inform me and I believe that they have written to Mineralogy many times explaining the working group meeting process to them and inviting them to such meetings.
11. Most recently my lawyers inform me and I believe that they sent formal invitations to Mineralogy on 27 January 2006 and 9 March 2006. My lawyers inform me and I believe that Mineralogy did not respond to these invitation letters until on or about 30 June 2006.
12. My lawyers also inform me and I believe that Mineralogy has not proactively contacted them to inquire about working group dates or schedules since 2005.
13. The KM claim group has a process where we could talk to Mineralogy about ways to minimize the impact of the grant of this licence. We call this process working group meetings. I understand that many native title clam groups in the Pilbara use this process. We conduct native title business with many companies and government departments in working group meetings. This is the way we do our business.
14. The KM people authorized members of our community to attend working group meetings and deal with the day-to-day native title matters on their behalf. These people are called working group members. Working group members have a responsibility to communicate information received and decisions made at meetings to the community. I am a working group member.
15. PNTS organize meetings of the working group and bring native title related matters to the group for decision. Although the working group has authority to make decisions on most matters more important decisions have to be made by a KM community meeting. All KM people and not just working group members are invited to attend community meetings. Individual applicants, individual working group members or individual KM people cannot make decisions on behalf of the KM people.
16. Going through the working group means that decisions that affect the community are made in the proper Aboriginal way. It is not right in Aboriginal way for any person to speak or make decisions on their own for the group. Under our traditional laws and customs, knowledge about different matters is sometimes held by different people. Therefore it is necessary for decisions to be made by the group.
17. As far as consultations about matters such as minimizing the effect on native title rights and interests, the proper and appropriate way to do this would be to meet with the working group to discuss the issues and concerns and to try to have access to advice from its lawyers and other representatives and to discuss matters and formulate positions amongst themselves in the course of these consultations. It is important to have face to face meetings and consultations with mining companies.
A past example of a survey in 2001 is of concern to us: it indicates that Mineralogy could cause damage if given this licence in this way
18. Mineralogy has been reluctant to meet with the KM working group to talk about other issues in the past. Following an incident in February 2000 we told our then solicitors, the Aboriginal legal Service (ALS), that we wanted to have a meeting with Mineralogy. Mineralogy drilling contractors were drilling on one of their tenements and did not tell the KM people about it. I was very concerned that the drillers would damage sites in the area. Our ALS solicitor at the time, Jane Fricke, told us and I believe that she asked Clive Palmer, the head of Mineralogy, whether he could stop the drilling until elders had looked at the area. Jane Fricke told me and I believe that she tried to arrange a meeting between KM and Mineralogy on the drilling sites. We did not meet with Mineralogy in 2000. Jane Fricke told me and I believe that Mineralogy cancelled meetings she had organized to talk about this issue.
19. My solicitors informed me that Mineralogy maintained that as part of their consultation with KM they conducted an Aboriginal heritage Survey over their tenements. I knew about this survey and I was very concerned about it at the time. Mineralogy did not go through the Pilbara Native Title Service (“PNTS”), as companies wanting to do surveys normally do. They employed their own people instead. I believe Mineralogy say that I participated in this heritage survey in June 2001. I did not participate in the survey as an Aboriginal Consultant. I did not attend the survey as a representative of the KM native title group. I went along as an individual because I knew that the people running the survey could not speak for country, I was concerned that these people would talk about the country when they had no right to do so.
20. Sometime in June 2001 I went out to the truck stop where those going on the survey were meeting. Wilfred Hicks was at the truck stop. I believe that Wilfred organized the survey. Wilfred Hicks is not Kuruma or Marduthunera and not part of our claim group.
21. I was taken with others to Devil Creek at Mardie Station. When we stopped there I had an argument with Wilfred Hicks about whose country we were on. The others who were with me, Gordon Yuline and Charlie Coppin, who are not KM people, told Wilfred and his brother that this was not their country. Neither Wilfred nor his brother replied.
22. There was a helicopter and pilot at Devil Creek. I presumed that Mineralogy had organized for a helicopter to take us on the heritage survey. I believed that Wilfred Hicks had already flown around the survey area. I wanted Wilfred to show me the places he had been on the survey so I hopped in the helicopter with Wilfred Hicks and others. The helicopter flew over the area where Mineralogy planned to mine. I did not tell Wilfred anything about any of the sites around where we flew. No one asked me anything about whether there were any sites in the area we had flown over. No one asked me if it was alright to mine there.
23. When we landed Wilfred said that Rory O’Connor was doing the heritage survey. I did not see Rory O’Connor for the time I was out on the country that day.
24. When we landed Wilfred gave us $300 each for going on the survey.
25. I did not give Wilfred any information about sites in the area. I was concerned that Wilfred was doing heritage surveys in the area and I wanted to see where the proposed project would go. I did not give Wilfred any information about sites because it is not his country.
26. I did not see the heritage survey report. I expected to be able to provide my comments on the survey and survey report to PNTS and anthropologists engaged by the PNTS for the KM claim group. I did not give any comments about the survey to the representatives of Mineralogy or the consultants they had engaged.
27. The proper method of consultation, which is done by other large mining companies, is to meet with the working group and if necessary the whole claim group to outline their plans. If heritage surveys are to be done, then survey teams are chosen by the working group or community group and surveys are done with consultants engaged by or on behalf of the claim group and who are acceptable to them. Usually the survey team walks around the area with the consultant to view it more closely rather than just flies over it. The survey reports are discussed and approved by working group or community meetings before being submitted to the mining companies. It is vital for the group to check and be satisfied about the reports and to decide about what is needed to minimize damage or whether sites are so important that they cannot be altered in any way.
28. It is usually not preferable to have surveys with members of other groups there, as we would not usually wish to discuss any sites or concerns in the presence of other groups. If this is the adequacy of a previous survey then it raises concerns about the way Mineralogy will work with us in the future.
29. Mineralogy applied for miscellaneous licences 08/22 and 08/23 over a similar area in the past. I have been informed by my lawyers and believe that the matter went to a hearing before the Independent person under s 24MD(6B) of the Native Title Act. The KM objected because there had been no proper consultation with us. I am informed by my lawyers and believe that the Independent Person upheld the objection and agreed that there had not been proper consultation.
30. Even since that decision, Mineralogy have not consulted with us. It makes me really worried, because now Mineralogy are applying for this exploration licence over some of the same area and still not consulting with us. A map attached to this affidavit shows where the exploration licence is in relation to the miscellaneous licence applications (“NRF1”)
Mineralogy refused to sign a heritage agreement
31. I have been informed by my lawyers and believe that the State of Western Australia and Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation have agreed a form of Standard Heritage Agreement which the KM people have also agreed to accept. Under this agreement, the State will not notify an exploration tenement under the expedited procedure unless the party has signed such an agreement.
Mineralogy refused to sign a standard heritage agreement with KM. In a letter dated 7 July 2006 Anthony Ellis, Legal Director, Mineralogy states:
‘Mineralogy’s board of directors has therefore decided that they are unable at this time to enter into a Standard Heritage Agreement with the Kurrama Marthudunera Native Title Claimant Group’.
I believe Mr Ellis is referring to the purported survey (relating to another tenement application) mentioned in paragraph 21-27 when he explains in his letter dated 7 July 2006:
‘Also, the Claim Group has previously disputed the validity of Heritage Surveys carried out by the Mineralogy in the Cape Preston area. The validity of Mineralogy’s previous surveys would need to be accepted by the Claim Group before any Heritage Agreement would be considered acceptable, at least in respect of the Cape Preston area.’
32. The Standard Heritage Agreement is the basis for a relationship of trust between mining company and KM. Any reluctance to sign such an agreement makes me worried about the impact their activities will have on our land, waters and activities. It certainly indicates that they will not consult us about avoiding interference or damage to sites in the area.
There are sites of significance within and in the vicinity of the proposed licenses that are not registered on the Register of Aboriginal Sites or subject of an ethnographic heritage survey. There are important sites inside the proposed licence area and also surrounding this area. And there are birthplaces and burial places of significance to the Native Title Party on and near the tenement.
There could be many more important sites in the tenement area that I am not personally aware of but where the knowledge is held by other people. In addition, I am not sure exactly where the boundaries of the tenement are and cannot judge by a map as to what may be in the area. We need to travel to the area and go through it to recognise and identify the sites inside the tenement.
33. Another company called Teteni Pty Limited has signed a Standard Heritage Agreement in respect of E08/1607. My lawyer has told me and I believe that this company has a relationship with Mineralogy. I do not understand why Mineralogy refuses to make a heritage agreement with us.
Mineralogy has been treating us bad for a long time, the Tribunal even made a decision back in 1997 when Mineralogy refused to make an agreement with us. I attach a copy of that decision (“NRF2”), as well as a decision of the Information Commissioner (“NRF3”). In that decision the Commissioner notes Mineralogy’s view that Aboriginal people may try to extort money from the company. This is on page 5 of the decision. That makes me wild, because Mineralogy tries to do things on our country all the time without speaking to the right people in the right way. We are worried about what will happen to the country if this licence is granted.
34. We old people need to look after all important places in our country. This means, we are the boss of this country and the Mining company must come and see us with regard to anything on this country.
Likely to interfere directly with the carrying on of the community and social activities of the KM people
35. Mineralogy has refused to sign a Standard Heritage Agreement and have previously disregarded KM procedures in organizing surveys. Thinking about them entering on our land in such a disrespectful manner makes all KM people very distressed.
36. KM regularly conduct a range of important communal and social activities in and about the tenement area such as hunting for kangaroos, goannas, bush turkeys and emus; we camp within this are; visit country and collect traditional foods; we use and enjoy this area; we collect bush medicine and wild tobacco and visit sites of cultural significance; many KM people regularly pass through and camp with their children in the course of passing cultural information and imparting knowledge; we also visit and pass through and camp on the way to other important sites such as the Balmoral area and other registered/unregistered sites. Exploration works in the area will interfere with these activities as we would not want to visit and camp where machinery and works are being carried out. This would be dangerous, especially for our children.
This area is important for our community because it is a place we know well and feel comfortable visiting. There is a lot of mining in our country and that makes the places where we can visit all the more important for sustaining us physically and spiritually.
37. Any exploration activity will scare away kangaroos, goannas, turkeys and other wildlife. It may also cause damage to the flora and vegetation of the area and this will in turn affect our community activities like hunting and gathering
38. I know about the flora in this area well. I know that there are many plant resources available in and around the tenement area include the following: Bunaangu (Bloodwood), Wirrungka (River red gum), Bajila (Caper), Winjarra (Rock Fig), Ngarlgu (Bush onion), Minyjirlu (Bush Tomato), Jaaburra (Flannel bush), Barrayin (Honey hakea or corkwood), Marlpa (Paperbark), Minjarra (Vicks bush), Marnthaduna (creeping vine), Marruwa (Snakewood), Thurlawirdinybirding (Sturts Desert Pea), Wardaba, Thurlawardga (Ruby Salt bush), Baabadiny, Garlun (Bullrush), Garruwa (Curara), Bungaa, Jajuwayi, Nyiyarri, Maygan, MJarduwarngu, Kanyji (Kanji bush), Maala, Bardirri (Camel bush), Ngarlawany (Bullrush), and Marliya (Bush honey). The tenement area is a good place to collect these plants, and one of the reasons this area is important to our people. White people have their supermarkets and pharmacies; we Kuruma Marthudunera people have the country covered by this application.
39. We don’t have any understanding or relationship with Mineralogy, so KM people will not want to go to this area, knowing that Mineralogy have pushed their way onto our country without agreement. We will feel nervous to hunt in this area and we can’t take our guns to go hunting because we won’t even know what they are up to. We would not want to bring our children onto this country when this mining company has entered there in such a way. It is very disrespectful to our culture. We would not want to expose them to this. It would upset everyone.
40. This area is very accessible for KM people. There is water in the area which makes it very easy for KM people to go there frequently. And because there are important sites throughout the area and in adjacent areas, KM people do frequent this area regularly.
Likely to interfere directly with areas and sites of particular significance
41. As mentioned before, due to Mineralogy’s reluctance to meet with KM and also refuse to sign a standard document that sets out the proper procedures, we are concerned about the exploration activities causing significant damage to sites. A(s) well as the registered sites, there are numerous unregistered sites.
42. The proposed tenement area is very important to KM people. As mentioned before this place is very important to KM people. It has many important sites and is also used as a thoroughfare to access other important sites. We regularly hunt and camp in this area and we take our children so that we can teach them culture. There are burial grounds and birth places in and around the proposed tenement area. Burial grounds and birth places are amongst the most significant places you can find on our country, and that is why we are very worried about this application.
Major Disturbance to Land or Water
43. I am aware of the activities, which Mineralogy could do on the exploration licence area under the Mining Act if they are granted the exploration licence. This could be a large amount of earth removal and drilling.
44. Mining Companies must ask our permission before doing anything on our country, even to step there. We have a lot of very special places, from our old-time people and from the early days. We are worried that if strangers arrive in our country uninvited or without permission, they might get sick if they touch any sacred site. That’s why we are frightened. We need to tell the mining company because they have got their own way. We know that mining companies don’t follow our Law. That’s why they have to sit and meet with us. Mineralogy has not met with nor have they agreed to sign an agreement outlining proper disturbance procedures.
45. It’s different if someone from another claim group came to our country, they don’t mess us around because they understand our Law.
46. If the mining company abuses the living water or land or act in an improper way they may not even know it but we will feel no good. We feel very sad, like someone close to us has died. It’s like the same thing for country. We feel sad for our country. There are many things they may do without even knowing that are wrong.
47. By our law, the Mining company cannot help themselves to our country. They have got to ask us first. If we say, ‘No’, they must leave our country, but if we say, ‘Yes’, they can stay and talk with us. If they make money out of my country, they can maybe give my community a little bit because they are taking something from our country. If we go digging in mining company’s country, they will put ‘the police’ onto us. We have no rights then.
48. In these circumstances I urge that the licence not be granted without the KM claim group being given the opportunity to have a proper consultation.”
The Kuruma Marthudunera native title party also rely upon the following evidence of Mr Finlay and the evidence of Ms Anne Robin Wally given in other proceedings between them and grantee party:
(a)Affidavit of Neil Rickey Finlay sworn 23 February 2003 for Warden’s Court objections CA9/023 and CA10/023 regarding miscellaneous licence applications L08/22 and L08/23 (Mineralogy Pty Ltd vKuruma (WC99/012) Native Title Claim v [2003] WAMW 35, 20 February 2004, Paul M Heaney SM).
(b)Affidavit of Neil Rickey Finlay dated 10 May 2007 (as amended and affirmed when he gave oral evidence on 5 July 2007) for Warden’s Court objection KR45/067 regarding general purpose lease application G08/63 (decision pending).
(c)Affidavit of Anne Robin Wally sworn 28 February 2003 for Warden’s Court objections 9/023 and 10/023 regarding miscellaneous licence applications L08/22 and L08/23.
(d)Supplementary affidavit of Anne Robin Wally sworn 21 October 2003 for Warden’s Court objections 9/023 and 10/023 regarding miscellaneous licence applications L08/22 and L08/23.
(e)Affidavit of Anne Robin Wally sworn 9 June 2007 for Warden’s Court objection KR45/067 regarding general purpose lease application G08/63.
Miscellaneous licences L08/22 and L08/23 are in the immediate vicinity of the proposed licence areas and, in part, cover the same area as E08/1331, the subject of Member Sosso’s determination in Mark Lockyer 2006. General Purpose Lease G08/63 is also part of the Cape Preston Project Area and in the near vicinity of the other tenements referred to. Given the location of the tenements the subject of these affidavits and the fact that they deal with similar issues to those raised in this inquiry I have accepted them in evidence and regard them as potentially relevant to the issues before me.
The Kuruma Marthudunera native title party also filed affidavits of;
Louise Kate Southalan, a solicitor employed by PNTS dated 13 July 2007;
Roina Joy Williams, a heritage anthropologist employed by PNTS dated 3 September 2007 and 27 November 2007; and
Giselle Lesley Harris, Future Acts Officer, employed by Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation dated 4 September 2007.
Section 237(a) – community or social activities
In Mark Lockyer 2006 Member Sosso carefully considered the evidence of Mr Finlay and determined that there was not likely to be direct interference with the community or social activities of the Kuruma Marthudunera native title party by the grant of exploration licence E08/1331. I have reviewed the facts revealed by Mr Finlay’s affidavit and Member Sosso’s findings and have concluded that I can accept them for the purposes of the present matter unless the additional evidence provided leads to a difference conclusion.
Mr. Finlay’s affidavit of 23 February 2003 in relation to the Wardens’ Court miscellaneous licence objections contains substantially the same material in paragraphs 1 to 7 of his affidavit filed in Mark Lockyer 2006. He then deals with matters specific to the grant of the miscellaneous licences namely the effects of taking different amounts of water from the aquifer which is not directly relevant to the present matter. There is also evidence relating to sites of significance to which I return below. In my view the evidence in Mr Finlay’s 2003 affidavit does not advance the Kuruma Marthudunera native title party’s cause in respect to s 237(a). Paragraph 7 is in identical terms to paragraph 6 of his affidavit in Mark Lockyer 2006 except for the additional statement that the last time he went to the Mardie Station area to hunt, camp and visit was in Easter 2001. The fact that in 2003 Mr Finlay had not frequented the area for these purposes for almost two years beforehand does not suggest that the proposed exploration activities are likely to interfere with these community or social activities.
Mr Finlay’s affidavit of 10 May 2007 repeats the evidence in paragraphs 1 to 4 of his affidavit in Mark Lockyer 2006 and deals with the Kuruma Marthudunera Working group in similar terms to that contained in Mark Lockyer 2006 at paras 13-17. It also deals with consultation about cultural heritage and sites of significance which I return to below.
With respect to the carrying out of community or social activities, Mr Finlay’s affidavit of 10 May 2007 repeats the evidence given in paragraphs 36 to 40 of his affidavit in Mark Lockyer 2006. He then adds that he has been to the area in and around the tenement about four or five times in the last 24 months but not in the last 12 months because there has been drilling rigs in the area. He says he also takes members of his family including his grandchildren to tell them stories about that area. He also repeats the evidence in paragraphs 44 and 46 to 48 of the affidavit in Mark Lockyer 2006
The affidavit of Anne Robin Wally (who is a member of the Kuruma Marthudunera claim group) sworn on 28 February 2003 contains the following paragraphs relevant to Section 237(a):
‘3. I am familiar with the area including and surrounding the proposed tenements. My mother Dorrie Wally was born on Wirruwandi Plain and her sister Linda de Lower was born near Jilan Jilan pool. Members of my mother’s family are buried near Balmoral station.
4. I was born on the boundary between Mardie and Wirruwandi Plain. I grew up on Mardie station. When I was a young girl, my grandfather Mibben Lowe showed me that country. I moved from Mardie station to Roebourne in 1980, after my grandfather Mibben Lowe argued about some rations with Phil Backman, who was then the owner of the station. Backman sacked Mibben and kicked him off the station.
5. My son Bevan Wally grew up and worked on Mardie Station from when he was 5 until he was 19. He knows about men’s business in the area. He lives in Kununurra.
6. I still visit Mardie station with my family. We go at holiday times. Last year, I visited with my mother, my son Bevan Wally and two grandkids in August. This year, we are going at Easter and taking my daughter Nina Rae Wally and some of my grandkids. When we visit, we explain to the children the stories of the places where we lived and that the old people used. We show them the things our ancestors used and left behind them. This way, the young people know who they are and where we come from.
7. The area in and around the proposed tenement is the richest hunting in our whole country because of the freshwater and saltwater that is there. We hunt for kangaroo, emu, and goanna, and gather food to eat and for medicine. We go fishing at james Point and Mardie landing for saltwater fish (eg salmon red snapper). Chuerdoo pool is the main freshwater pool that we use for catching freshwater fish (melinja and catfish) and for swimming, camping and to get drinking water. When the water is dirty, we can dig anywhere along the [Fortescue] river and get fresh water. When you do this, the hole is called a yerramurra (water hole in Marthudunera language). Chuerdoo Pool is partly within the proposed tenement L08/023. Another pool we use for these things is called “Waterhole” on the map referred to in paragraph 2, above.’
The evidence of alleged lack of consultation between Mineralogy and the Kuruma Marthudunera native title party is a manifestation of what Member Sosso in Mark Lockyer 2006 referred to as the “largely unsatisfactory relationship” between them “marked by poor communications”. Member Sosso said:
‘[49]… It appears from the material submitted that there has been a lengthy and largely unsatisfactory relationship between the native title party and grantee parties, marked by poor communications – Karuma Marthudunera (Combined) Native Title Claimants/Western Australia/Mineralogy Referral 1/2004, Independent Person 14 June 2005. The material submitted highlights that some members of the native title party would be genuinely, and perhaps not unreasonably, upset about the grantee party entering onto the subject land and waters without agreement being first reached (affidavit of Mr Finlay at paras 18, 29 and 30 and Mr Bobby at para 6). However, while emotional upset should not be discounted in carrying out a predictive risk assessment of the likelihood of a future act directly interfering with community and social activities, it is the linkage of the emotional upset with the physical nature of exploration that is the key. In this case the material submitted indicates a lengthy and troubled relationship between the native title party and the grantee party. No doubt there is a level of suspicion and concern amongst some members of the claim group about the manner in which the grantee party will carry out exploration activities, however there is no evidence that the grantee party has inappropriately exercised legal rights in the past or has previously directly interfered with community or social activities. Bad relations between parties can sometimes be of direct relevance for a predictive risk assessment. If there is a history of a grantee party engaging in activities of a type that are dealt with in section 237 then this would be a key issue. Further, if the bad relations relate to previous breaches of the law by the grantee party or threats or overbearing behaviour, such that there is a real fear that the grantee party would not obey the law, then this also would be relevant. Any of these matters would be pertinent to the issue of whether the presumption of regularity should be applied. However, if the bad relations are of the type highlighted in this matter, and relate to interpersonal, commercial and process issues, then they are largely irrelevant to a section 237 predictive risk assessment.
I agree with Member Sosso’s analysis that the grounds of objection to the expedited procedure are set out in s 237 and confined to those matters. Any alleged lack of consultation between the parties is only relevant if that lack of consultation makes the interference or disturbance referred to in s 237 more likely to occur.
Findings in relation to s 237(b) - Wong-goo-tt-oo and Kuruma Marthudunera native title parties
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [32]–[41].While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. See for example Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [26]–[34] (‘Banjo Wurrunmurra’) where it was determined that there was likely to be interference with a s 237(b) area or site.
The Government party contends that the grantee party has signed a statutory declaration that it has executed and sent a RSHA to the Kuruma Marthudunera People to execute should they accept its terms and conditions. The RSHA process adopted by the Government party in various regions of WA after discussions with the relevant representative bodies and industry has been detailed in Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [15]-[35] (‘Champion’) the relevant parts of which I adopt for the purpose of this determination. The grantee party has re-affirmed its willingness to enter into the RSHA which is evidence that the grantee party is aware of its responsibilities under the Aboriginal Heritage Act (Champion at [31]). The Government party will also impose the condition referred to above (paras [26]-[33]) which confirms that the grantee party must sign a RSHA with the Kuruma Marthudunera native title party if requested by them.
In his final submissions Mr Wright summarised the Kuruma Marthudunera native title party’s contentions in relation to s 237(b) and made two major points. The first is that the nature and extent of sites of particular significance found to exist are such that the regulatory regime based on the Aboriginal Heritage Act is not sufficient to ensure that they are not likely to be interfered with and that this is a case which falls outside the normal circumstances where the Tribunal has found the regulatory regime adequate. He relied on the recent case of Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, NNTT WO06/503-507, [2007] NNTTA 82 (17 September 2007), Hon C J Sumner, which in turn referred to the Tribunal’s determination in Banjo Wurrunmurra. In both these matters, the Tribunal found that the area of the tenement was ‘site rich’ and that despite acceptance that the grantee party would act lawfully there was a real risk that there would be interference with sites of particular significance. The findings were also influenced by the lack of evidence from the grantee parties of their exploration intentions and based on an assumption that the rights given under the Mining Act would be exercised to the full.
Leaving aside for the moment the intentions of the grantee party it is my view the evidence in the present matter does not exhibit such ‘site rich’ characteristics to justify a finding that sites regulatory regime will be inadequate. Some of the sites of particular significance referred to in para [80] above are specific in type and location but do not amount to establishing that the area is rich in sites. There is also some more general evidence from Ms Williams of the likely existence of other sites, but this evidence is not specific about the location of them. There is also no specific evidence of these other sites from the Kuruma Marthudunera native title claim group. It is apparent that some other surveys have been carried out in the proposed licences area (for the Gas pipeline over E08/1451 and the Rio Tinto survey in 1998 (E08/1414)). The Rio Tinto survey was a site identification survey covering 74.9 per cent of the E08/1414 area. While it is reasonable to infer that the survey for the Gas pipeline did not cover the whole of E08/1451 the existence of these previous surveys and the apparent lack of recording of large numbers of sites as a result of them tends to support a finding that the areas are not ‘site rich’ and Ms Williams’ evidence needs to be considered in this light. Previous surveys have identified a number of sites on E08/1451 only one of which (Wiruwandi Plain) obviously qualifies as a site of particular significance. With respect to E08/1414 the previous surveys have only resulted in registration of the two Cape Preston sites. Considering all the evidence I do not conclude that the area of the two proposed licences is ‘site rich’ as that phrase has come to be used. However, the sites specifically identified and Ms Williams’ evidence of other sites means that the grantee party will be on notice of the existence of sites and will need to engage in close consultation with the Kuruma Marthudunera native title party to ensure there is no interference with them. The grantee party is on notice of their existence which will mean that if they are interfered with the defence in s 62 of the Aboriginal Heritage Act will not be available to it. These conclusions also apply to the Wiruwandi Plain, a site which appears to be quite large and will require close consultation to ensure there is no interference with it.
The second major submission made by Mr Wright was that the presumption of regularity should not apply because of the past behaviour of the grantee party in relation to consultation and doubts about its true intentions in relation to the exploration activities to be carried out and the protection of sites. The submission is not that the grantee party is likely to breach the law. Rather it is that it should be assumed it will exercise its legal right to the full under the licence and that it will not limit its activities in the way suggested by Mr Sharma in his evidence. The Kuruma Marthudunera native title party challenges the credibility of Mr Sharma’s evidence in a number of respects which it says should lead the Tribunal to be not satisfied about what the grantee party is likely to do. I also understand this submission to mean that various actions of the grantee party in the past indicate that its attitude to consultation with the Kuruma Marthudunera native title party is insufficient in the context of the facts of this case to make interference with sites unlikely.
I am satisfied that in a least two respects Mr Sharma’s affidavit evidence is misleading. Mr Sharma’s evidence common to all matters which is summarised in para [37] above leaves the impression that there has been consultation with the Kuruma Marthudunera native title party about the Cape Preston Project at and following the Roebourne meeting and that site surveys have been carried out, including over the proposed licence areas. While this is partially correct, Mr Sharma does not make it clear that the Cape Preston site surveys which are specifically referred to by him in his affidavit did not cover the area of E08/1451 and only covered a small part of E08/1414. In proceedings involving these specific tenements one would have expected Mr Sharma to make this clear. While it is legitimate for him to refer to the Roebourne meeting and subsequent site surveys as evidence of the grantee party’s general approach to consultation with native title claimants about the Project and Aboriginal sites it is misleading to imply (as his affidavit does) that the Cape Preston surveys covered the subject tenements.
The second misleading aspect of Mr Sharma’s evidence is his assertion that following the Cape Preston surveys the grantee was not contacted or made aware of any outstanding issues. The most generous interpretation of this evidence is that no issues were raised immediately after copies of the report were made available to the Kuruma Marthudunera native title party (presumably sometime after 2001 as they were not released until a Freedom of Information request for them had been made by PNTS). However, it has been clear to the grantee party since at least early 2003 that the Kuruma Marthudunera native title party had concerns with the Cape Preston surveys. Mr Finlay’s affidavit of 23 February 2003 annexes copies of the Cape Preston surveys and asserts that no member of the Kuruma Marthudunera native title party was a consultant to the archaeological survey (Mr Wilfred Hicks was the only person identified as such) and that the ethnographic survey did not include the area of Miscellaneous Licences 08/22 and 08/23. The Independent Person on 14 June 2005 said that he was not satisfied that previous heritage surveys covered the areas of Miscellaneous Licences 08/22 and 08/23. Mr Finlay’s affidavit in Mark Lockyer 2006 sets out in detail the Kuruma Marthudunera native title party’s concerns about the Cape Preston survey process. It is therefore not accurate for Mr Sharma to say on 6 June 2007 and 6 August 2007 that the grantee party ‘was not contacted or made aware of any outstanding issues’ in relation to the Cape Preston surveys.
Mr Wright also submitted that Austeel Pty Ltd, one of the original co-proponents of the Project whose CEO was Mr Sharma at relevant times, had provided misleading information in response to Public Submissions made under the Environment Protection Act 1986 (Mr Sharma’s affidavit of 6 August 2007 – Annexure VKS 4). In relation to a number of these submissions the evidence is not clear and I make no findings in relation to them. However, I am satisfied that the response to Question 144 contains a misleading statement of the same kind referred to above. In response to a query raised by PNTS about heritage surveys over the service corridor route, Austeel responded: ‘Aboriginal Heritage Surveys have been conducted that cover the entire Project area and consultation has been undertaken with representatives of all Aboriginal groups with interests in the area.’ This statement is not accurate, The Cape Preston surveys did not cover any of the area of E08/1451.
The Kuruma Marthudunera native title party also relies on other matters to support its contentions that the grantee party has an unsatisfactory approach to the protection of Aboriginal heritage (described by Mr Wright as minimalist and confrontational (Transcript – p 44)). First, they say that the draft Aboriginal Heritage Management Plan (AHMP) was prepared without consultation with some of the claim groups and that a draft of it was not made available to them. I am satisfied that there was no specific consultation with the Kuruma Marthudunera native title party about the draft AHMP (although it was informed by the previous consultations) and that a draft of it was not made available to them before it was submitted to the DIA. The grantee party has also declined to provide a copy of the AHMP to PNTS.
Second, that the grantee party made applications under s 18 (Aboriginal Heritage Act) for Ministerial approval to disturb sites in relation to a number of tenements including the proposed E08/1414 and E08/1451. It is self evident that if the grantee party already has in mind that it will need to disturb Aboriginal sites this is highly relevant to the predictive assessment required to be carried out by the Tribunal. Further, before making this application no consultation about it occurred with the Kuruma Marthudunera native title party and the grantee party declined to provide a copy to them. There is no doubt that the s 18 applications were made in relation to a large number of tenements of various kinds that are part of the Project and subsequently withdrawn after the Aboriginal Cultural Material Committee (ACMC) deferred consideration of the application and referred it back to the grantee party with a request for clearer specification of survey coverage and methodology, an outline of any further consultative activity since 2001/2004 and specification of heritage protection zones for sites not subject to development (letter of 16 March 2007 from DIA to PNTS – part of Annexure LS 2, affidavit of Louise Southalan 13 July 2007).
In relation to E08/1451 and E08/1414 Mr Sharma says (affidavit of 26 November 2007) that E08/1451 was included in the application as a result of a clerical error. Because E08/1451 had not been surveyed it was not possible to seek s 18 clearance in relation to it. E08/1414 was included because a very small part of it overlapped already surveyed and granted mining leases and that the s 18 application only extended to this area of overlap. As the balance of the area had not been surveyed by the grantee party, no s 18 application was possible in relation to it, Mr Sharma said.
I am satisfied that no specific consultation occurred with the Kuruma Marthudunera native title party about the s 18 applications and that the grantee party is opposed to making a copy available to them. The basis for the opposition to disclosure is that there are three claimant groups involved and there may be issues of confidentiality between them and that the application contains commercial confidential information of the grantee.
From the Tribunal’s perspective there would seem to be advantages in the grantee party consulting with and making available details of these documents to the native title parties. Maximum possible disclosure can only enhance relations and it is after all information which Aboriginal people have the custody of and which has been made available to consultants for the purpose of the survey report. There is some legitimacy in the grantee party’s position that there are three claimant groups involved and that disclosure to one of information about others may not be appropriate. This would also appear to be the Kuruma Marthudunera native title party’s position as Mr Finlay (2006 affidavit - para 28) expresses concern about traditional information relevant to his claimant group being made available to others. Despite the difficulties I consider it desirable for maximum disclosure to be made to a native title party in this type of circumstance. It should not be beyond the capacity of parties to devise a means of doing this for example by obtaining the consent of respective claim groups for the release of appropriate information or removing material which is commercially confidential to the grantee party.
With respect to the grantee party’s exploration intentions Mr Sharma elaborated on the evidence he had given by way of affidavit during his oral evidence. He said that the grantee party would not carry out the full range of activity which the grant of an exploration licence permits. In particular, there would be no Reverse Circulation or Diamond drilling that would involve trucks or drilling rigs. The only drilling involved would be manual drilling down to three metres.
Mr Sharma further said that the grantee party could proceed with its exploration program without disturbing any identified sites which would be avoided and did not consider it likely that there would be any need to make a s 18 application to disturb a site on E08/1414 and E08/1451 or indeed over E08/1331 the subject of the Mark Lockyer 2006 determination. Mr Sharma’s attention was specifically drawn to the large area of Wiruwandi Plain and he was satisfied that exploration could occur without any interference with it. His position is that if initial exploration is successful, the grantee party will apply for mining leases over the area if more intensive ground disturbance is considered necessary.
Mr Sharma also gave evidence of the site surveys which are currently being carried by CP Mining on behalf of two co-proponents of the Project (Citic Pacific Limited and Sino Iron Pty Ltd) which includes consultation with the Kuruma Marthudunera native title party on the already granted mining leases some of which overlap E08/1414 to a minor extent. There is no evidence of dissatisfaction from the Kuruma Marthudunera native title party in relation to the surveys.
Evidence was also before the Tribunal of correspondence between Yamatji, Mr Stephen Wright and Mr Denis Callaghan of DIA. By letter of 13 September 2006 Mr Callaghan advised Mineralogy that the AHMP was an adequate approach to the management of the heritage values of the Project area, acknowledged that it had consulted widely and advised that Mineralogy had demonstrated ‘a responsible approach to heritage protection’ and that DIA had no issues or concern with the Project proposal. Subsequent correspondence from Yamatji requested copies of the AHMP which DIA declined to provide. Mr Wright’s email correspondence of 13 August 2007 to Mr Callaghan queried the conclusion reached by DIA expressed in its letter of 13 September 2006 that Mineralogy had dealt responsibly with Aboriginal heritage matters given the Kuruma Marthudunera native title party’s assertions that:
Mineralogy had not been conducting surveys with the Kuruma Marthudunera claim group; and
the AHMP and s 18 applications had not been discussed or made available to them.
Mr Callaghan provided a detailed reply (14 August 2007) confirming his view of the responsible attitude of the grantee party and declining to support the Kuruma Marthudunera native title party’s position in relation to this objection.
Mr Wright said no weight should be given to DIA’s attitude because it was acting on one side of the story and taking an inappropriate approach to these issues. He says that, with respect to consultation, what the DIA was told by the grantee party was shown to be false by the evidence in this matter. In my view it is not possible to completely ignore the evidence from DIA which has special responsibility for Aboriginal sites. While the evidence establishes a lack of consultation with the Kuruma Marthudunera native title party over the AHMP and s 18 application Mr Callaghan was aware of these assertions at the time of his response and still found the AHMP process acceptable.
Evidence was also provided by Mr Sharma of meetings between the grantee party and Kuruma Marthudunera native title party which occurred during 2007 to refute the allegation that there was no consultation. I am satisfied that some meetings were held involving discussion of other tenements and including one which was not successful because of the grantee party’s concerns about the conduct of PNTS referred to above in para [86]. It is not necessary to make a finding which attributes blame to any party for any difficulties which have arisen in relation to these meetings. What can be said is that there is at least some ongoing consultation between the parties (albeit not to the satisfaction of the PNTS or Kuruma Marthudunera native title party) including the apparently satisfactory consultations with Citic and Sino. The satisfactory nature of these consultations tends to suggest that the difficulties between the parties relate to issues between Mr Sharma and the Kuruma Marthudunera native title party and PNTS. I suggest below that steps should be taken to attempt to re-establish more satisfactory relationships between them. Even though Mr Sharma maintains that he has a good relationship with claim group members the evidence certainly suggests that some attention should be given to improving them and his rapport with PNTS.
In summary, I am satisfied that:
Mr Sharma’s evidence has in some respects been misleading;
there was scope for greater consultation between the parties over the AHMP and s 18 application;
there continues to be the relationship difficulties between the parties identified by Member Sosso but that this has not resulted in a complete breakdown in communication as some consultation and contact has continued between the parties.
As explained above the issue to be determined is whether these findings mean that there is likely to be interference with sites of particular significance because the regulatory regime will not be effective in rendering it unlikely. I am satisfied that the presumption of regularity can apply in this case. There is no evidence that the grantee party has or will act contrary to the law and particularly the regulatory regime dealing with Aboriginal sites based on the Aboriginal Heritage Act. The Kuruma Marthudunera native title party will have an option to enter into a RSHA which I am satisfied will be sufficient to make interference with sites unlikely, including because of the consultation process it sets up. The Kuruma Marthudunera native title party have found the RSHA satisfactory in other matters. The option to enter into a RSHA is not available to the Wong-goo-tt-oo native title party because the Government policy is that the condition will only be imposed in relation to the native title party whose claim overlaps the area to the greatest extent. However, Mr Hicks has provided evidence of some sites and the grantee party will need to consult with him, whether in accordance with a heritage agreement or not, to ensure that its activities do not interfere with the sites.
I accept the grantee party’s evidence that it will not need to make a s 18 application in relation to the proposed licences for exploration. In cross-examination Mr Wright asked Mr Sharma whether he would agree to conditions being imposed on the grant which: first, would restrict any drilling to hand held means; second, would prohibit ground disturbance over an area identified as an Aboriginal site; and third, prohibit the grantee party from making a s 18 application. Mr Sharma said he did not object to the first proposal. With respect to the second his evidence was somewhat unclear. He said he could not consent to a condition that would restrict the grantee party’s activities. He said the third proposal is a matter to be considered by the Mineralogy Board. Despite the potential conflict in Mr Sharma saying he does not want the grantee party’s activities restricted but that a s 18 application will not be necessary I am satisfied from the evidence overall that no s 18 application will be made. Mr Sharma was giving evidence on behalf of Mineralogy and while the imposition of the suggested condition might be something the Board would need to consider (if it ever became more than a hypothetical possibility), I have taken Mr Sharma as Managing Director to be speaking on behalf of Mineralogy with authority to accurately express their intentions. In any event, the question of imposing conditions is one for the Government party, so I do not regard the reluctance of Mr Sharma to agree to conditions which the Government party may not be prepared to impose undermines Mr Sharma’s evidence of the grantee party’s intentions.
I do not consider Mr Sharma’s misleading evidence results in a whole scale discrediting of every thing he says. Even if a s 18 application were to be made the ACMC and Minister would no doubt consider it in light of Mr Sharma’s evidence making it unlikely that such an application would be successful. There is nothing to suggest that the grantee party’s approach to consultation about the AHMP or s 18 application is contrary to the law or administrative practice deemed acceptable by DIA. Indeed the contrary is the case as the grantee party’s actions have been acceptable to DIA.
Major disturbance to land or waters (s 237(c))
No contention is made by the Kuruma Marthudunera native title party in relation to this topic and so it is not strictly necessary to deal with it. However the facts of the present matter in relation to this issue are similar to those in Mark Lockyer 2006 and I adopt paras [61]-[72] of that determination and find that the grant of the proposed licences is unlikely to cause major disturbance to land or create rights which do so.
Concluding remarks on relationships between parties
During the hearing I took the opportunity of suggesting to the parties (including Mr Sharma) that it would be desirable for steps to be taken to put the relationships between the grantee party and native title parties on a better footing. The Project is large, is supported by the Government and Parliament yet in recent times has been the subject of litigation before the Tribunal and other bodies. Resolving these issues, where possible, by consultation and agreement would be a preferable approach for all concerned. I note that there are substantial negotiations proceeding with the native title parties towards an agreement for the Project including compensation. It would be desirable if through this or some other means a way could be found to amicably and fairly resolve the sort of issues that have arisen in these proceedings. I also suggest that the Government party, given its undoubted interest in a successful development could take some steps towards this end. Depending on the circumstances the Tribunal may be able to assist.
Determination
The determination of the Tribunal is that the grant of exploration licences E08/1414 and E08/1451 to Mineralogy Pty Ltd are acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
14 January 2008
Key Legal Topics
Areas of Law
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Indigenous Peoples & Native Title Law
Legal Concepts
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Native Title
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Consultation
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Adverse Possession
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