Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd
[2011] NNTTA 23
•24 February 2011
NATIONAL NATIVE TITLE TRIBUNAL
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Kingx Pty Ltd, [2011] NNTTA 23 (24 February 2011)
Application No: WO10/365
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants (WC99/24) (native title party)
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The State of Western Australia (Government party)
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Kingx 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: 24 February 2011
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – community or social activities of ‘looking after country’ – discussions, meetings with grantee party, attempting to negotiate agreement – physical activities – activities not take place on area of exploration licence – whether activities arise from claimed or registered native title rights and interests – future act not likely to interfere directly with the carrying on of community or social activities – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases: Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (24 February 2011), Hon C J Sumner
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Solicitor for the
native title party: Mr Malcolm O’Dell, Central Desert Native Title Services
Representative of the
native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representative of the
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the Mr Christopher Clegg,
grantee party: Statewide Tenement and Advisory Services Pty Ltd
REASONS FOR DETERMINATION
On 18 November 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E38/2213 (the proposed licence) to Kingx Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 215.96 square kilometres located 183 kilometres easterly of Wiluna in the Shire of Wiluna. It is overlapped at 100 per cent by the Wiluna native title claim (WC99/24 – registered from 24 September 1999). No other native title claims overlap the proposed licence.
On 5 March 2010, Wilma Freddie and Others on behalf of the Wiluna registered native title claimant (native title party) made an expedited procedure objection application to the Tribunal in respect of the proposed licence.
In accordance with standard practice the Tribunal gave directions to 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 from the s 29 closing date for the lodgement of objections (18 March 2010), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At a preliminary conference on 4 May 2010 the grantee party representative reported that the grantee party wished to rely on the Regional Standard Heritage Agreement (RSHA) only. The native title party representative advised this was not acceptable and the grantee party requested the matter proceed to an inquiry and it was adjourned to the listing hearing on 29 July 2010.
There were numerous contentions and evidence lodged in this matter, with both the Government party and the native title party seeking the right to reply.
During the exchange of contentions the native title party narrowed the issues to concern s 237(a) of the Act only. The Government party provided its final response on 8 October 2010 and the native title party on 25 October 2010. The grantee party advised on the 19 October 2010 that they would rely on the contentions filed by the Government party.
Parties agreed that the inquiry be heard ‘on the papers’, that is without holding a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2)).
The narrowing of the issues by the native title party involved ‘amending’ the Form 4 expedited procedure objection application so that the inquiry is now only concerned with the native title party contention that the evidence relating to s 237(a) establishes that the expedited procedure is not attracted. The native title party says that the social or community activities carried out by the native title holders of ‘looking after country’ which are identified in the affidavits of Mr Victor Ashwin and Mr Lindsey George Langford are likely to be interfered with directly by the grant of the exploration licence and the activities proposed to be carried out pursuant to it. This is the same contention made by the native title party in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (22 February 2011), Hon C J Sumner (Tarlpa) and the evidence of Messrs Ashwin and Langford is essentially the same in both matters. For this reason I have considered it appropriate to adopt findings from Tarlpa for the purposes of this determination (s 146).
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), I considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry.
The nature of an exploration licence including conditions to be imposed
I adopt the Tribunal’s findings in Tarlpa at [10]-[16].
Evidence in relation to the proposed act
Government party documentation establishes the underlying land tenure of the proposed licence to be as wholly overlapped by Indigenous Owned Lease 3114/1065 Windidda).
There are no Aboriginal communities identified inside the area of the proposed licence, however there is one Aboriginal community, Windidda, situated approximately sixteen kilometres east of the proposed licence area.
Department of Indigenous Affairs (DIA) documentation provided by the Government party reveals no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (AHA) within the proposed licence areas, but the following sites are located approximately within five kilometres to the east and south of the proposed licence:
Site ID 19,302 – Tingkal (mythological – lodged, open access, no restriction).
Site ID 23,673 – Dingle Claypan 1 (artefacts/scatter - lodged, open access, no restriction);
Site ID 23,674 – Dingle Claypan 2 (artefacts/scatter - lodged, open access, no restriction); and
Site ID 25,677 – Old Windidda No 8 Bore (mythological – permanent register, closed access, male access only).
Government party documents indicate that the entire area of the proposed licence was released for geothermal acreage in 2009 and 50 per cent of the proposed license is covered by a mineralisation zone (MZ 0000002). There are no live tenements affected by the proposed licence. I note a number of mineral claims were active variously between 1995 and 2007, as well as a temporary reserve between the years 1959 and 1964.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant of the licences and of certain exploration activities (conditions 5-6).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder;
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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; and
The licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1987 is authorised to explore for iron.
A Regional Standard Heritage Agreement (RSHA) condition will be imposed in the following terms:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Wiluna, the applicants in Federal Court application no. WAD 6164/98 (WC99/24), such request being sent by pre-paid post to reach the Licensee's address, c/- Western Tenement Services, PO Box 428 Greenwood WA 6924 not more than ninety days after the grant of this licence shall within thirty days of the request execute in favour of the Wiluna the Regional Standard Heritage Agreement endorsed by peak industry groups and Ngaanyatjarra Council.’
Intentions of the grantee party
The evidence of the grantee party by authorised representatives, Mr Christopher Clegg of Statewide Tenement and Advisory Services Pty Ltd, which consisted of a Statement of Contentions and signed affidavit of Mr Clegg, filed on 17 September 2010, with a further signed affidavit of Neil Provins, Chief Geologist of the grantee party, filed on 20 September 2010. These contentions outline that the proposed licence area is prospective for the discovery of iron, manganese, sulphide base metals and lead/zinc. Methods of exploration will include acquisition and interpretation of remote sensed data (airborne magnetic and/or electromagnetic data), soil sampling, reconnaissance fieldwork and rotary air blast (RAB) and reverse circulation (RC) drilling of electromagnetic, magnetic and geochemical targets. Access to the tenement will be from existing tracks. Exploration in Year 1 will be of a low impact nature and will not require additional tracks. Exploration in Year 2 may require minor track work to be undertaken which will be rehabilitated on completion of work. The grantee party sets out its intentions to comply with all relevant legislative requirements, including the Aboriginal heritage and mining regimes. The grantee party has offered and remains willing to sign the native title party’s proposed Exploration and Prospecting Deed of Arrangement subject to some amendments proposed by it and says that it supports its broad context and structural terms.
Evidence provided by the native title party
The submissions of the native title party include the sworn affidavit of Victor Ashwin (VA Aff) and Lindsey George Langford (LGL Aff) made in the following terms:
‘Affidavit of Victor Ashwin (VA Aff)
I, Victor Ashwin, of Windidda Community make oath and say as follows:
BACKGROUND
1. I make this affidavit in support of the Statement of Contentions of the Objectors in an inquiry to the objection to the expedited procedure matter WO10/365.
2. The information in this affidavit is something that I know to be true.
3.I am a traditional owner in the Wiluna native title claim area (WAD 6164 of 1998).
4.I have been shown a map of the area of tenement application E38/2213.
THE DECISION MAKING PROCESS OF THE COMMUNITY THAT COMPRISES THE WILUNA CLAIM GROUP
5.I know the country of the application area, it is part of the country that we look after.
6.When I talk about we, I mean the Wiluna native title claimants who, as a part of their traditional law and custom are responsible for the land in the Wiluna Native Title Claim.
7.We are all one people and we all look after our land in the Wiluna claim area.
8.We are responsible for looking after country. When we talk to each other we are always talking about looking after country.
9.Looking after country is making sure that our country is looked after the proper way.
10.When we make important decisions that effect the country, we all have to talk about it and make the decision together. It must be agreed by all people who speak for country in each particular part of the Wiluna claim area and these decisions must be known by everyone in the Wiluna claim area.
11.Making decisions about looking after country is a very important job and this is something that everyone is involved in, many Wiluna claimants spend a lot of time doing this because of their cultural obligation to make sure Wiluna country is looked after the proper way.
12.The main way that the Wiluna claimants undertake community activity that looks after country the proper way is by looking after the land.
THE WAY IN WHICH THE WILUNA COMMUNITY DO COMMUNITY ACTIVITIES WHICH HELP THEM LOOK AFTER SITES AND SPECIAL PLACES AND LOOK AFTER THE LAND
13.We must look after the land together the proper way.
14.This is a big job and it is very important because it shows respect for the land.
15.We have to make sure that we all look after the land and we have to make sure that any visitors are also looking after the land properly. We look after the land so that it is still good for our children and grandchildren.
16.Many people in the past who came into the Wiluna claim area did not look after the land. We do not want this to happen in the future.
17.To stop this happening, we make sure that all people who come into the Wiluna claim area look after the land and show respect for the land. We do this by talking about it together so everyone knows what is happening on the land and then deciding together whether it is showing proper respect to the land and whether people should or should not be doing those things on the land.
18.When a mining company wants to come into the Wiluna claim area, we enter into an agreement with them that makes them look after the land the way we do.
19.These agreements allow for us to check up on the mining company to make sure they are caring for country, especially when getting ready to leave. We will go out and see if the mining company has cleared up after itself and done all the things to look after the land that it said it would do.
20.If we are not allowed to talk to KingX and reach agreement with them, then we can not look after the land properly, which we have to do together.’
I adopt my findings in Tarlpa at [30] and accept this evidence.
‘Affidavit of Lindsey George Langford (LGL Aff)
On 12th day of August 2010, I Lindsay George Langford, of 170 Wellington St, East Perth in Western Australia, make oath and say as follows:
1.I hold a Bachelor of Arts (Anthropology) and have been employed at Central Desert Native Title Services (CDNTS) since 3 July 2008.
2.Except where otherwise stated, the facts herein deposed are within my own knowledge or have come to my knowledge through access to information, which I believe to be true and which is identified in this affidavit.
3.I swear this affidavit in support of the Objector’s contentions in this matter.
4.My current role is West Side – Facilitator Land And Community at CDNTS. My previous role at CDNTS was as Anthropologist/Project officer for the Tarlpa native title claim (WAD 248 of 2007) and Wiluna native title claim (WAD 6164 of 1998).
5.Since coming to CDNTS, I have spent the majority of my time working on land based projects. These projects have been coordinated in collaboration with, and informed by, the instructions of the respective Wiluna/Tarlpa native title claim groups. As part of my work, I attend claim meetings, law and culture meetings and undertake trips ‘on country’ in the claim area.
6.I spend and have spent considerable time with members of the community and have spoken at length to them about their native title rights in a formal and informal setting. Through these discussions, I have come to understand that ‘looking after country’ is:
a. a vitally important community activity that is continually practiced against a framework of traditional law and custom; and
b. the main cultural imperative behind the majority of claimant’s involvement in the native title process.
7.In recognition of the importance of this community activity and the need for people to have support in exercising native title rights, the Land and Community section of CDNTS was created.
8.The activity undertaken by the Wiluna/Tarlpa community of native title holders under their traditional laws and customs is frequently referred to in short by them as fulfilling their duty to ‘look after country’.
9.This activity may manifest in:
a. ensuring visitors look after the country the proper way;
b. visiting waterholes in order to maintain them;
c. intergenerational transfer of knowledge about flora, fauna and maintenance of country;
d. transfer of knowledge about traditional law and culture;
e. traditional burning regimes; and
f. cultural site maintenance
10.Of relevance in this matter is the activity associated with ‘ensuring visitors look after country the proper way’. All persons entering onto country, including miners, are considered visitors and because this activity is considered a ‘duty’ it is taken very seriously by the community.
11.The activity associated with the duty to ‘look after country’ is not one that falls on a single person or a single group of people, it is an activity that the native title claim group do together. In order to ensure visitors look after the country the proper way, and hence the community is conducting its duty, the community will talk to visitors and continually discuss the visitors objectives and methods for the land amongst themselves. I know this from observing the practices of the Claimants in my experience in the area and also from discussions with Claimants.
12.This activity is conducted by the community of native title holders predicated on priorities. These priorities have been identified by the native title claimants to myself during a series of consultation on country that were set up to assist the Land and the Community Projects. The priorities are:
a. keeping country healthy;
b. keeping Martu healthy;
c. bonding and learning between young people and old people;
d. employment and an economy; and
e. ensuring a seat at the table in decision making.
13.CDNTS facilitates a Return to Country project that has become a platform on which community discussion about looking after country takes place. These trips are wholly focused on mobilizing as many community members as possible to get back onto specific areas of country that form part of the cultural landscape of the claimant community. This allows community members to check the country and generates further discussion of whether the activity of looking after country is being done adequately and what more the community can do to fulfil their duty.’
I adopt my findings in Tarlpa at [31] to [37] and accept this evidence.
The parties’ contentions
The contentions of the Government and native title parties are largely the same as were made in Tarlpa and my determination is based on consideration of their contentions as outlined in Tarlpa at [38] to [47]. There is nothing in the evidence in this matter which distinguishes it in any significant way from the facts in Tarlpa and accordingly my findings in Tarlpa are equally applicable to it.
Relevance of the RSHA
The native title party made numerous contentions on this issue but in the light of their amended contentions restricting the issues in the inquiry to s 237(a), I find that the option for the native title party to enter into a RSHA in accordance with the RSHA condition referred to above is of minor relevance to my determination. I adopt paras [48]-[55] of Tarlpa to support this finding.
Community or social activities (s 237(a))
I adopt the following findings from Tarlpa.
History and interpretation of s 237(a) as amended (paras [56]-[64]).
The Tribunal’s approach to the interpretation of s 237(a) as amended (paras [65]-[77])
What ‘activities’ are identified by the native title party in this case? (paras [78]-[81])
Must the community or social activities take place on the proposed licence area? (paras [82]-[89])
Is native title a communal concept?
I adopt my findings in paras [90]-[92] of Tarlpa. Although the Wiluna application is not made in exactly the same terms as in Tarlpa I am satisfied that it is a communal claim. There are a very large number of persons who comprise the applicant for native title.
Must the community or social activities arise from registered native title rights and interests?
I adopt my findings in Tarlpa at [93]-[96]. Although in some respects the native title rights and interests registered in Tarlpa are different from the ones in this case, I am satisfied that the community or social activities of looking after country arise from at least some of the registered rights. For instance there is a right to make decisions about the use and enjoyment of the area. This issue was not raised by either the Government or grantee parties and the case has proceeded on the basis that the community or social activities relied on by the native title party are of the kind covered by s 237(a). There is no reason to alter this approach.
Findings on the principal issue (s 237(a))
I adopt my findings in paras [103]-[120] of Tarlpa and find that the grant of the exploration licence and the proposed exploration activity is not likely to interfere directly with the carrying on of the community or social activities of the native title party.
Other factors affecting community or social activities
I adopt my findings in Tarlpa at [121]. There is prior history of some exploration activities. The current underlying tenure is an Indigenous Owned Lease which I infer is held by a body comprising some of the native title holders or is for the use or benefit of Aboriginal people some of whom are native title holders. I also infer that this used to be a pastoral lease held by non-Aboriginal interests. Because the lease is now Indigenous Owned I do not think the activities on it will currently interfere with the native title party’s obligations to look after country. Accordingly, I have not taken into account any possible interference of this kind. In Tarlpa the existence of a pastoral lease was not critical to the outcome and the absence of one in this case is also of little importance.
Sites of particular significance (s 237(b))
Major disturbance to land and waters (s 237(c))
I adopt my findings in Tarlpa at [123]-[124] and find that there is not likely to be interference or disturbance of the kind mentioned in ss 237(b) and (c) of the Act.
Determination
The determination of the Tribunal is that the grant of exploration licence E38/2213 to Kingx Pty Ltd, is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
24 February 2011
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