Wilma Freddie & Ors on behalf of Wiluna/Western Australia/JML Resources Pty Ltd
[2011] NNTTA 103
•14 June 2011
NATIONAL NATIVE TITLE TRIBUNAL
Wilma Freddie & Ors on behalf of Wiluna/Western Australia/JML Resources Pty Ltd, [2011] NNTTA 103 (14 June 2011)
Application No: WO10/1043
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Wilma Freddie & Ors on behalf of Wiluna (WC99/24) (native title party)
- and -
The State of Western Australia (Government party)
- and -
JML Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms Helen Shurven
Place: Perth
Date: 14 June 2011
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases: Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money, NNTT WO10/908, [2011] NNTTA 91 (27 May 2011), Hon C J Sumner Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150
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
Little v Oriole Resources Pty Ltd [2005] FCAFC 243, 146 FCR 576
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
Neowarra v State of Western Australia [2003] FCA 1402
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025
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 Dennis Jacobs, Department of Mines and Petroleum
Representative of the
grantee party: Mr Michael Giles, South Boulder Mines Ltd
REASONS FOR DETERMINATION
On 7 April 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E69/2560 (‘the proposed licence’) to JML Resources 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).
The proposed licence comprises an area of 157.62 square kilometres located 93 kilometres northerly of Wiluna in the Shires of Meekatharra and Wiluna. It is within the Wiluna native title claim (WC99/24 - registered from 24 September 1999) and the Yugunga-Nya People’s native title claim (WC99/46 - registered from 12 June 2000) by 99.85 and 0.15 per cent respectively.
On 2 August 2010, Wilma Freddie and Others on behalf of the Wiluna native title claimants (the native title party) made an expedited procedure objection application to the Tribunal in respect of the proposed licence.
On 6 August 2010, Evelyn Gilla and Others on behalf of the Yugunga-Nya People made an expedited procedure objection application to the Tribunal in respect of the proposed licence (WO10/1084). On 10 March 2011 the objection application was withdrawn.
On 16 August 2010, Hon C J Sumner was appointed as the Member for the purpose of conducting the inquiry. 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. The directions allow a period from the s 29 closing date for the lodgement of objections (7 August 2010), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the preliminary conference on 31 August 2010 the grantee party representative reported that the terms of the heritage agreement offered by the native title party were not acceptable to the grantee party who wished to rely on the Regional Standard Heritage Agreement (RSHA). Parties agreed that the matter proceed to an inquiry in accordance with the directions.
The Government party lodged its contentions and evidence on 17 November 2010, and the Government party Reply on 28 March 2011. Following a request for an extension, the native title party lodged its contentions and evidence on 13 and 16 December 2010. At a listing hearing held on 16 December 2010, the grantee party advised they would rely on the Government party’s contentions and evidence.
Parties agreed at a listing hearing on 14 April 2011 that the inquiry could be determined ‘on the papers’, that is, without holding a further hearing.
On 18 May 2011, I was appointed by Hon C J Sumner as the Member for the purpose of conducting the inquiry. I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) of the Act).
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’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings 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’) at [10]-[16].
With respect to issues arising under s 237(b), I 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) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little v Oriole Resources Pty Ltd [2005] FCAFC 243, 146 FCR 576 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
Evidence in relation to the proposed act
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
Cunyu Pastoral Lease 3114/1049 (98.1 per cent);
Vacant Crown Land (1.7 per cent);
Neds Creek Pastoral Lease 3114/1157 (0.1 per cent);
Historical Lease 394/636 (0.1 per cent);
Common Reserve 29839 for the Protection of Rabbit Proof Fence (less than 0.1 per cent); and
Road Reserve No. 4274 (less than 0.1 per cent).
The documentation indicates 11 previously granted exploration licences and 12 granted mineral claims overlapping the proposed licence. The exploration licences, granted between 1990 and 2008, and now surrendered or forfeited, overlapped the proposed licence between 0.1 and 99.9 per cent. The mineral claims, granted between 1971 and 1975, and now surrendered, overlapped the proposed licence by no more than 0.8 per cent per tenement. The documentation indicates no current exploration or mining activity within the area of the proposed licence. A number of tracks, fence lines, minor watercourses, well/bores with and without windmills, yards and woolsheds are also noted on the proposed licence.
Tribunal mapping shows no Aboriginal communities inside the area of the proposed licence. The nearest Aboriginal community is Kutkabubba, situated approximately fifty kilometres south of the proposed licence area.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals one registered Aboriginal site under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) which may be within the proposed licence area, that being ‘Tyinki-Tyinki’, described as a mythological closed access site on the permanent register of Aboriginal sites (Site ID 2669). As per DIA policy, the location of closed access sites are not revealed on the register. However, geospatial mapping provided by the Tribunal on 19 April 2011 indicates that the Tyinki-Tyinki site boundary overlaps approximately 10 kilometres along the northern horizontal boundary of the proposed licence, extending upward by approximately eight kilometres along the top portion of the eastern boundary, and then running along the top of the northern most boundary tip of the proposed licence.
A Draft Tenement Endorsement and Conditions Extract included in the Government Party documentation indicates the grant of the proposed licence intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]) and three further conditions:
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of a transfer introducing a new Licencee,
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
Consent to mine on Protection of Rabbit Proof Fence given subject to the following:
7.Mining on a strip of land 30 metres wide with the Rabbit Proof Fence as the centre-line being restricted to below a depth of 15 metres from the natural surface
The Draft Tenement Endorsement and Conditions Extract also notes the following two endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach):
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Government contentions (at 5f), indicates that a condition (the 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 and/or Yugunga-Nya People, the applicants in Federal Court application no. WAD 6164 of 1998 (WC99/24) and WAD 6132 of 1998 (WC99/46) respectively, such request being sent by pre-paid post to reach the Licensee's address, PO Box 8355, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence shall within thirty days of the request execute in favour of the Wiluna and/or Yugunga-Nya People, as the case may be, the Regional Standard Heritage Agreement for their respective areas.”
Evidence provided by the native title party
The contentions of the native title party include the unsworn but signed affidavit of Victor Ashwin, dated 9 December 2010, and the unsworn and unsigned affidavit of Lindsey George Langford. The affidavit of Mr Ashwin is as follows:
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 Objector in an inquiry to the objection to the expedited procedure matter WO10/1043.
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).
THE DECISION MAKING PROCESS OF THE COMMUNITY THAT COMPRISES THE WILUNA CLAIM GROUP
4.I know the country of the application area, it is part of the country that we look after.
5.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.
6.We are all one people and we all look after our land in the Wiluna claim area.
7.We are responsible for looking after country. When we talk to each other we are always talking about looking after country.
8.Looking after country is making sure that our country is looked after the proper way.
9.When we make important decisions that [affect] 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.
10.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.
11.The main way that the Wiluna claimants undertake community activity that looks after country the proper way: by looking after the land.
THE WAY IN WHICH THE WILUNA COMMUNITY DO COMMUNITY ACTIVITIES WHICH HELP THEM LOOK AFTER THE LAND
The community activity associated with the Wiluna community’s obligation to look after country
12.We must look after the land together the proper way.
13.This is a big job and it is very important because it shows respect for the land.
14.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.
15.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.
16.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.
17.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.
18.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.
19.If we are not allowed to talk to [the] Grantee Party and reach agreement with them, then we can not look after the land properly, which we have to do together.
In relation to accepting the unsworn affidavit of Mr Ashwin, the Tribunal is not bound by the rules of evidence (s 109(3) of the Act). Doris Ryder and Ors on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321 [2010] NNTTA 15 (at [18]-[28]) summarises the Tribunal’s practice with respect to statements not in affidavit form. In that matter, the Tribunal held that it is self evident that evidence relating to the matters in s 237 are central to the making of a determination, and that the best evidence relating to the matters will generally come from the native title holders. Though it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is not contested. In the present matter that is the case, I am satisfied that Mr Ashwin’s statement is admissible and material, accept it, and will deal with it and all the documents and evidence provided by other parties for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Hughes v Western Australia (2003) 182 FLR 362; [2003] NNTTA 69). Mr Ashwin says he is a traditional owner of the Wiluna native title claim area and is one of the persons comprising the applicant for the native title party. I accept he has the necessary authority to speak for country on behalf of the native title party.
The affidavit of Mr Langford is as follows:
I, Lindsay George Langford, of 170 Wellington Street, 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 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 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 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 consultations on country that were set up to assist the Land and 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.
In his statement, Mr Langford states that he holds a Bachelor of Arts (Anthropology) and that he has been employed at Central Desert Native Title Services (CDNTS) since 3 July 2008. He states that he is currently the West Side – Facilitator Land and Community and was previously the Anthropologist/Project Officer for (among others) the Wiluna native title claim.
The Tribunal has noted on numerous occasions that, unlike a Court, it is not bound by the rules of evidence. However, the Federal Court’s observations about the role anthropological evidence plays in native title cases are of assistance in this matter and support the Tribunal’s acceptance of it. The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work, which accords with the member of the native title claim group’s evidence, is probative: Neowarra v State of Western Australia [2003] FCA 1402 at [388]; Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 at [263]; Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150; at [291] to [292].
As the Full Court of the Federal Court has noted, an anthropologist such as Mr Langford may observe and record matters relevant to both the social organisation of a native title claim group and the nature and content of their traditional laws and traditional customs. There may also be circumstances in which an anthropologist may give evidence about the meaning and significance of what Aboriginal witnesses say and do so as to explain or render coherent matters which, on their face, may be incomplete or unclear: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431 at [89].
Mr Langford’s evidence has not been challenged. Applying the principles outlined in this decision at [21], I accept his evidence, however, it would have been more probative had it been signed and/or sworn.
With the exception of references to the claim group, application number, minor formatting changes and some grammatical differences, the contents of Mr Ashwin’s and Mr Langford’s affidavits closely resemble their affidavits submitted by the Tarlpa native title party for Tarlpa (outlined in full in that decision at [29]-[30]). In my view there is no material difference between this evidence and that tendered and considered in Tarlpa.
In support of its contentions the native title party also provides:
·A press release issued by Francis Logan, Minister for Energy, Resources, Industry and Enterprise, dated 13 November 2007; and
·A submission by the Department of Indigenous Affairs to the Functional Review Committee Established to Review The Department of Indigenous Affairs, dated June 2006.
The ‘presumption of regularity’ issue
Both the Government party and the native title party make the same contentions as noted in Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money, [2011] NNTTA 91 (27 May 2011) at [27]-[33]. In that matter, the Tribunal considered the matter extensively and I adopt the discussion and findings at [34]-[62] for the purposes of this inquiry.
Community or social activities (s 237(a))
The native title party contentions in relation to s 237(a) of the Act state that:
·There is a community of native title holders situated on and in the vicinity of the proposed licence identified in the Wiluna Claim and that it is the community that ‘collectively observe traditional laws and customs that give rise to the set of native title rights and interests as described on the Register of Native Title’ (at 48);
·Those registered rights ‘give rise to numerous physical activities undertaken by the community’ (at 49);
·‘The evidence before the Tribunal is that in all cases where visitors including mining companies seek to enter onto Wiluna country’ the community undertakes the physical activities of ‘looking after country’ by meeting with the visitor, talking to the visitor about ‘looking after country’ in the ‘proper way’, making a decision together to enter into an agreement if necessary, and ‘checking up’ on the visitor’ (at 50-52);
·‘There is no provision for this activity to take place if the proposed tenement is an act that attracts the expedited procedure’ (at 51);
·‘The Objector contends that the only mechanism that exists under the NTA that allows the Wiluna community to undertake the physical activities associated with ‘looking after country’ is, as parliament intended, under the ‘right to negotiate’ provisions of the NTA. This is because, absent the right to negotiate, the community activities associated with ‘looking after country’ generally, and in particular the activities associated with:
a.discussing within the community, the proposed activities of the Grantee Party;
b.meeting, negotiating and [if possible] reaching agreement with the Grantee Party on how it conducts its exploration activity; and
c.ensuring that the Grantee Party has compiled[sic] with any obligations it has agreed to, while conducting its exploration activities and at the cessation of those activities,
simply cannot take place.’ (at 52);
·‘The clear and unambiguous intent of the NTA is that where matters involve, as in this case, the interference with community activities undertaken as a duty under law and custom and as a native title right, then the ‘right to negotiate’ is the appropriate umbrella for mitigating the interference with that activity’ (at 54);
·It is ‘axiomatic’ that the grant of the proposed licence ‘absent any mechanisms that requires or even allows for the community activity described in the affidavits of Mr Ashwin and Mr Langford to be undertaken, will be the proximate cause of the apprehended interference with those activities’ (at 55);
·‘Consequently, the physical dimensions of the community or social activities will be interfered with directly by the act. Additionally, as the community activity is undertaken as a cultural obligation or duty by the Wiluna community, that direct interference will be substantial’ (at 55).
Each of the above contentions has also been raised by the native title party in Tarlpa (at [41]-[44].
The material from Mr Ashwin and Mr Langford in support of the native title party contentions closely resemble their affidavits submitted for Tarlpa (and outlined in full at [29]-[30]), with the exception of references to the claim group, application number, minor formatting changes and some grammatical differences.
Government party documentation notes at least 99.9 per cent of the proposed licence has been subject to recent exploration activity and is 98.1 per cent overlapped by pastoral leases. While there is no specific evidence as to the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the relatively recent exploration activity, and ongoing pastoral activities will already to some extent have interfered with the native title party’s obligations to look after country.
I refer to the relevant analysis and findings in Tarlpa (at [56]-[122]) and find the grant of the proposed licence is not likely to directly interfere with the carrying on of the community or social activities of the native title party.
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 (that is, more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows the registered site Tyinki-Tyinki (Site ID 2669) is, or has boundaries which are, within the proposed licence area, but this does not mean there may not be other sites or areas of particular significance to the native title party over that area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA does protect all Aboriginal sites, whether on the Register or not.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the Regional Standard Heritage Agreement (‘RSHA’): (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [30]-[34] (‘Champion’).
The grantee party has signed a RSHA which contains processes for the protection of sites, including the conduct of a heritage survey. The grantee party’s offer to enter into the RSHA is indicative of its awareness of its legal obligations under the AHA, and there is no evidence that the grantee party will not comply with its legal obligations. Furthermore, the Government party states (at 5f) it will impose the RSHA condition on the grant. Even though the native title party (and its representative Central Desert Native Title Services) have indicated they do not accept the RSHA as an appropriate mechanism for site protection, they have the option to enter into it with the grantee party.
The evidence of the native title party is broad and not particularised in relation to interference with sites of significance.
Taking all of these factors into account, I find that there is not likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
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 to think that exploration activities would result in any major disturbance to land or waters. 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 (Champion at [74]-[79] and the cases cited therein).
In relation to the question of the general impact of mining or exploration, there is insufficient evidence for me to conclude any negative inference against the grantee party. Further, there is insufficient evidence before me in relation to a negative impact on land or water on or near the proposed licence area. There has not been sufficient nexus provided or evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas v Northern Territory (2002) 169 FLR 330, nor in my view is such disturbance likely to be considered major as required by the general community as outlined in Silver v Northern Territory (2002) 169 FLR 1.
The evidence in this matter does not establish that the grant of the proposed licence will result in a major disturbance to land or create rights which will do so.
Determination
The determination of the Tribunal is that the grant of exploration licence E69/2560 to JML Resources, is an act attracting the expedited procedure.
Helen Shurven
Member
14 June 2011
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