Wongatha People/Gregory Wayne Down/Western Australia - [2004] NNTTA 106

NATIONAL NATIVE TITLE TRIBUNAL

Wongatha People/Gregory Wayne Down/Western Australia, [2004] NNTTA 106 (22 November 2004)

Application No: WF04/9

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

- and –

IN THE MATTER of an inquiry into a Future Act Determination Application

Wongatha People (WC99/1) (native title party)

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Gregory Wayne Down (Applicant/grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal: The Hon EM Franklyn QC, Deputy President

Place: Perth
Date: 22 November 2004

Catchwords: Native title – future act – application for determination for the grant of mining tenement – “good faith” challenge – finding that the Tribunal has jurisdiction to determine the matter – no evidence provided by the native title party - determination that the act may be done.

Legislation: Native Title Act 1993 (Cth), ss 31, 35, 38, 39

Mining Act 1978 (WA), ss 73, 82, 84
Aboriginal Heritage Act 1972 (WA), ss 5, 17 and 18

Cases:Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333, Hon CJ Sumner
Evans v Western Australia (1997) 77 FCR at 215, Nicholson J
Western Australia v Thomas [1999] NNTTA 99; (1999) 164 FLR 120
Wongatha People and Ors/Western Australia/Fredrick Andrei and Anor, [2004] NNTTA 81 (9 September 2004), Hon EM Franklyn QC

Representative of the Mr Dion Meredith, North East Independent Body
native title party: Mr Ian Miller, Geotask Pty Ltd

Counsel for the
grantee party: Ms Christine Lovitt, Blakiston & Crabb

Representative of the
grantee party: Mr Matthew Clohessy, Emerald Tenement Services

Representative of the Ms Faye Mitchell, Department of Industry and Resources
Government party: Ms Katherine Sheppard, State Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

On 26 March 2003, the State of Western Australia (‘the State’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act, namely the grant of Mining Lease M37/1164 (‘the proposed lease’) under the Mining Act 1978 (WA) to Gregory Wayne Down (‘the Grantee’).
The proposed lease, if granted, will be situated on land the subject of registered native title claim WC99/1, registered from 10 February 2000, the named registered native title claimants on behalf of the Wongatha People being:

Aubrey Lynch, Cyril Barnes, Dimple Sullivan, Elvis Stokes, Leo Thomas, Les Tucker, Murray Stubbs, Pearlie Wells, Ron Harrington-Smith, Sadie Canning, Thelma O’Loughlin and Tomashisha Passmore (‘the native title party’)

The proposed lease occupies an area of some 103.84 hectares, 18 kilometres easterly of Leonora in the Shire of Leonora and is entirely overlapped by the claim of the native title party.
On 12 May 2004, being a date more than six months after the s 29 notice was given, Gregory Wayne Down made an application pursuant to s 35 of the Act for a future act determination under s 38 asserting that, despite negotiations during the period from September 2003 to May 2004 including Tribunal assisted mediation at the request of the Grantee, the parties had been unable to reach agreement over the doing of the act.
I was appointed the Member to conduct the s 35 Inquiry on 19 May 2004 and accepted the future act determination application on 27 May 2004.

Background

On 6 November 2003 the Department of Industry & Resources, on behalf of the Grantee, requested Tribunal mediation assistance pursuant to s 31(3) of the Act. The future act determination application asserts that negotiations outside the parameters of s 31 mediation also occurred prior to the mediation request, and continued in tandem with Tribunal facilitated assistance. The Grantee claims to have negotiated in good faith with the native title party in an attempt to reach agreement.
A draft of the Directions I proposed to make was sent to the parties on 27 May 2004. They contained directions to be made should the issue of lack of good faith in respect of negotiations for agreement be raised as well as directions for the conduct of the substantive hearing of the s 35 application if the good faith issue were not raised.
A Preliminary Conference with the parties was held on 3 June 2004 at which all parties were represented and the proposed Directions were referred to. All parties agreed that there was no issue as to “good faith”. Consequently, on that day I issued Directions in respect of the conduct of the s 35 application hearing in the terms set out hereunder:

‘1.On or before 17 June 2004 the Government party is to provide to the Tribunal, to the native title parties and the grantee party:
(i)details of recorded sites kept on the Register under the provisions of the Aboriginal Heritage Act;
(ii)details of the current land tenure and mining tenure in the vicinity of the land;
(iii)copies of the current land tenure and mining tenure title documentation in the vicinity of the land; and
(iv)where possible, a topographical map of the area of a scale 1: 100,000 identifying the location of the proposed mining lease and the mining leases in its vicinity marked on it.

On or before 15 July 2004 the native title party is to provide to the Tribunal, the Government party and the grantee party:
(a)a statement of the effect (if any) of the grant of the proposed mining lease upon the following matters (referred to in section 39(1)(a) of the Native Title Act 1993):
(i)       the enjoyment by the native title party of their registered native title rights and interests;
(ii)      the way of life, culture and traditions of the native title party;
(iii)     the development of the social, cultural and economic structures of the native title party;
(iv)    the freedom of access by the native title party to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance conducted on the land or waters in accordance with their traditions; and
(v)     any area or site on the land or waters concerned of particular significance to the native title party in accordance with their traditions.
(b)a statement of the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the land or waters in relation to which there are registered native title rights and interests of the native title party that will be affected (s 39(1)(b));
(c)a statement of whether the native title party contends that any of the matters referred to in section 39(1)(c) to (f) are relevant to the inquiry and, if so, an outline of the Native Title Party’s contentions in relation to each of those matters;
(d)contentions on whether the Tribunal should impose a condition for an amount to be paid into trust on account of a future determination of compensation;
(e)a statement of the evidence to be given by any witness for each native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers;
(f)a list of the documentary evidence intended to be produced in relation to the matters referred to in paragraphs (a) to (d) above (with copies of documents being made available to the Tribunal) - where practicable copies of documents should be made available to the other parties; and
(g)where there is an issue relating to the confidentiality of documents or evidence and whether evidence will need to be given in restricted circumstances, a statement of the nature of the documents and evidence and the proposed arrangements for the hearing of the evidence.
On or before 29 July 2004, the Government party and the grantee party are to provide to the Tribunal, to the native title party and to each other:
(a)a statement of contentions, in particular addressing the criteria relevant to them in s 39 of the Native Title Act 1993;
(b)a list of all documentary evidence intended to be produced (with copies of the documents being made available to the Tribunal). Where practicable copies of the documents should be made available to the other parties; and
(c)a statement of the evidence to be given by any witness for the Government or grantee party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers.
The parties’ attention is drawn to Paragraph 5.10 of the Procedures under the Right to Negotiate Scheme issued by the Tribunal on 20 April 2000, and in particular to Paragraph 5.10.8. As far as practicable the parties are to provide evidence (including witness statements) in documentary form.
On or before 4 August 2004:
(a)the parties will inspect documents provided to the Tribunal other than confidential documents; and
(b)the parties will confer with a view to agreeing on the issues before the inquiry, the facts and documents to be relied on and the procedures for its conduct and report the results of the conference to the Tribunal at the listing hearing.
A listing hearing will be held on 6 August 2004. At the listing hearing the parties should be prepared to report on:
(a)any agreements relating to the issues before the inquiry, the facts and documents to be relied on;
(b)procedures for its conduct, including the need for confidentiality, interpreters, or any other special arrangements; and
(c)an agreed list of exhibits to be tendered at the inquiry.
The hearing will be listed on a date to be fixed.’
The State complied with Direction (1) of the said Directions on 10 June 2004.
On 14 July 2004 the native title party sought an extension of time for compliance with Direction (2) of the said Directions and also raised the issue of lack of good faith on the part of the grantee in its negotiations for agreement with the native title party that the grant may be made, acknowledging that it had not raised the issue earlier but now wanted to do so. The State and the Grantee were agreeable to an extension of time for compliance and the Grantee contended that as it had been agreed that “good faith” was not an issue the issue was not live. Because of the requirement in s 31 of the Act that the parties “must negotiate in good faith”, good faith negotiation is a preliminary requirement going to the Tribunal’s jurisdiction to determine the matter if challenged by a party, and must first be determined. Accordingly I suspended the Directions of 3 June 2004 and subsequently issued Directions for the conduct of an Inquiry as to whether or not the Grantee had negotiated in good faith as required by s 31. The history of the negotiations between the parties and the respective contentions and submissions of the native title and other parties are set out in my reasons for the determination of the good faith issue published on 1 October 2004, in which I determined that the Grantee had negotiated in good faith and that the Tribunal had jurisdiction to determine the s 35 application.
On 1 October 2004 I issued Directions for the conduct of the s 35 Inquiry in the same terms as those of the 3 June 2004 save that Direction (1) was omitted, the State having already complied therewith. The Directions required compliance by the native title party on or before 18 October 2004, and by the State and Grantee on or before 1 November 2004.
On 22 October 2004 a Tribunal case manager contacted the representative for the Native Title party, Mr Dion Meredith, to ascertain its intentions with respect to compliance with the aforesaid Directions, no documents or evidence having been received by that date. Mr Meredith advised by telephone on the same date that the Native Title party would not be submitting contentions and evidence and did not seek an extension of time to do so.
On 29 October 2004 I convened a Listing Hearing at which the Native Title party was invited to make submissions regarding its failure to comply with the Directions of 1 October 2004. Mr Meredith reiterated his position that the Native Title party did not intend to provide contentions or evidence. Both the State and the Grantee advised that they would comply with direction (2) of the Directions of 1 October 2004, the requirements of which (save for the time for compliance) were identical to those of direction (3) of 3 June 2004. The State did so on 1 November 2004 and the Grantee by letter dated 1 November 2004, received on 2 November 2004.
I am satisfied that the issues the subject of this inquiry, can be adequately determined by considering, without holding a hearing, the documents and other material lodged with or provided to the Tribunal.

Documents and evidence provided by the Government party

Mapping and textual information lodged by the Government party on 10 June 2004 advises the tenure details and other required information as to the area of land the subject of the proposed lease to be as follows:

(a)Crown Reserve CR 1751, vested in the Shire of Leonora for the purpose of a Common, overlapping the area of the proposed lease by 88.5%;
Unallocated Crown Land, overlapping the area of the proposed lease by 10.8%; and
Road Reserve for the purposes of the Kookynie-Malcolm Road, overlapping less than 0.1% of the area of the proposed lease;
(b)that the Register of Aboriginal Sites and other material held by the Department of Indigenous Affairs reveals no sites recorded under the provisions of the Aboriginal Heritage Act 1972 (WA), and no Aboriginal community in the vicinity of the proposed lease;
(c)That there is no mining tenure in the vicinity of the proposed lease. However, Tribunal spatial information (copies of which were provided to the parties with an invitation to make submissions in respect thereof), reveals the undermentioned tenements to border the boundaries of the proposed lease, with technical overlaps over it set out hereunder:
·P37/6339; area 1.81691 km², applied for by Drylands Pty Ltd on 16 March 2002, granted 24 January 2003, overlap area .00033 km², situated adjacent to the north-eastern edge of the proposed lease; and
·P37/6342; area 1.94951 km², applied for by Drylands Pty Ltd on 16 March 2002, granted 24 January 2003, overlap area .00072 km², situated adjacent the southern corner of the proposed lease.
(d)In addition, 54 ‘dead’ tenements are listed by the Department of Industry and Resources’ Tengraph “Quick Appraisal” as having been granted and situated on the area of land the subject of the proposed lease for various periods between October 1897 and March 2002. Of such ‘dead’ tenements, ten are said to have been subsequently determined as “null and void”, one is said to have been “refused” and the remainder are said to have been subsequently terminated, the respective reasons therefore being shown variously as either “unknown”, “surrendered”, “forfeited” or “expired”, the last thereof having been surrendered on 15 March 2002.

[15.1] The State’s contentions outline the process for the application for a mining lease, and the terms and rights inherent in the any grant of that mining lease. The submissions therein draw attention to the following legislative and other conditions which will apply to the grant of the mining tenement:

(a)Section 82 of the Mining Act 1978 (WA) (‘the Mining Act’), which sets out the conditions under which a lease may be granted;
(b)Section 84 of the Mining Act, which authorises the Minister to impose “reasonable conditions for the purpose of preventing, reducing or making good injury to the surface of the land.”
(c)Sub-sections 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (‘the AHA’), which define Aboriginal areas or sites and provide that a Grantee must have the consent of the Minister for Aboriginal Affairs before using the land for any purpose which may be in breach of ss 17 of that Act, which, in turn, makes it an offence “to excavate, destroy, damage, conceal or in any way alter any Aboriginal site or any object on or under an Aboriginal site.”
(d)The standard endorsements and conditions which will apply to Mining Lease 37/1164, are set out in Annexure B to the aforesaid contentions. Paragraph (1) of the Endorsements draws the Grantee’s attention to the provisions of the AHA. The Conditions include, inter alia, the capping, filling or making safe of surface holes after completion, backfilling and rehabilitation of costeans and other disturbances to land within six (6) months of excavation unless otherwise approved by the District Mining Engineer, removal of waste materials and abandoned equipment, prohibition of mechanised excavation equipment for surface disturbance or costeans unless with the written approval of the relevant authority, the storage and replacement of topsoil, provision of documentation detailing the proposed operation and measures to safeguard the environment prior to the commencement of mining or exploration activity, and prohibition of mining less than 15 metres from the surface on any road, road verge or road reserve.

[15.2] Appended to the State’s contentions is a document printed on Department of Industry and Resources letterhead entitled ‘Mining and Exploration – Extra Conditions the Department of Industry and Resources is offering to place on the tenement’. Those conditions are set out hereunder:

· ‘Any right of the native title party (as defined in Section 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operation or for safety or security reasons relating to those activities.
· If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
· Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
· Upon assignment of the mining lease the assignee shall be bound by these conditions.’

Being uncertain as to when the said offer is to take effect and whether it required acceptance by the Grantee and/or the native title party, the State was asked for clarification. On 18 November 2004 the State advised by email that “the four conditions will not be imposed upon the grant of the tenement unless the Tribunal determines pursuant to s 38 that the act be done subject to those four conditions”. Thus the offer appears to be an unsolicited offer to the Tribunal which I can only regard as a submission that the State considers the conditions to be appropriate, fair and reasonable as they apply to the Grantee, the native title party and the State. In my opinion the offered conditions are reasonable, not onerous and, as the Grantee does not oppose them and is the only party on which they impose any obligations, there is no reason why they should not be imposed as conditions to be complied with by the Grantee on a determination that the act, being the grant of Mining Lease M37/1164 to the Grantee, may be done.

[15.3] The contentions point out, inter alia, that the Tribunal has jurisdiction only if and to the extent that there is a “future act”, ie: native title exists and is affected by the doing of the Act. Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 at 476, and that the Tribunal must take into account areas of potential or total extinguishment of native title within the proposed lease area. It does not however contend that there has been any such extinguishment of native title. However I take the reference to “extinguishment” to suggest that it may have taken effect.

[15.4] In respect of s 39 of the Act the State contends:

(a)as to s 39(1)(a)(i), that the effect of the grant on the enjoyment by the native title party of its rights and interests of a kind that can be exercised on the land the subject of the proposed lease is negligible. It adds that there is no current proposal to mine the land, only to conduct exploration. That assertion ignores the rights conferred by a Mining Lease.
(b)as to s 39(1)(a)(ii), that the grant will have no adverse affect on the life, culture and traditions of the native title party, pointing out that there are no residential communities within the area of the proposed lease. It may be of course that the presence on the relevant land of a resident Aboriginal community is not determinative of the extent of such life, culture and traditions;
(c)as to s 39(1)(a)(iii), that the grant will have no effect on the development of the social, cultural and economic structures of the native title party;
(d)as to s 39(1)(a)(iv), that the grant will have minimal adverse effect on the freedom of the native title party to access the land and carry out rites, ceremonies or other cultural activities as:
“(a)the grant of a mining lease does not confer on the lessee a right of exclusive possession over the whole of the lease area but merely confers on the lessee a right of exclusive possession for mining purposes;
(b)thus the lessee can prevent others from using the land for mining purposes, but it does not follow that all other persons are excluded from all parts of the lease area;
(c)the holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some native title right or interest for so long as the holder of the mining lease carried on that activity;
(d)if there were any sites of particular significance within the area of the proposed mining lease those sites could be subjected to the protection of the Aboriginal Heritage Act. However, it is not known whether there are any sites of particular significance to either of the native title parties within the area of the proposed mining lease.”

[15.5] As to s 39(1)(b), the submissions state that the State has not been made aware of any interests, proposals or wishes of the native title party in relation to the management, use or control of the land the subject of the proposed lease.

[15.6] As to s 39(1)(c), it is said that the activities authorised to be carried out on the land upon grant of the proposed lease would in themselves contribute to the economy of the State and, in the event that a commercially viable resource is found, that contribution would be substantially greater by way of generation of royalties and revenue.

[15.7] As to s 39(1)(e), the State contends that the public interest is served by the furtherance of resource exploration, the State’s resource sector accounting for nearly 70% of its export income and “around 32% of Gross State Product”. It is asserted that “each successful mining project may be preceded by approximately 1000 unsuccessful exploration projects” and that exploration in areas not the subject of current production licences has fallen by 50% since June 1998, which, it submits, is likely to cause a “sympathetic fall in the rate of mineral discovery and consequent resource production”. It is emphasised that the Goldfields region is a major contributor to the State’s mineral production.

[15.8] As to s 39(1)(f), with respect to environmental issues, the submissions draw attention to the findings of Hon CJ Sumner in WMC Resources Ltd/State of Western Australia/Evans (NNTTA 372, WF99/4, 23 December 1999) at page 28, in which he concludes that, as in that case there was no evidence to link the effect of the act on the natural environment with the factors the subject of s 39(1)(a), it was not a relevant factor. The submission asserts that “a comprehensive environmental regime will apply in respect of the mining lease.” As to compensation, the State submits that the Tribunal should not make any order or conditions for the payment of compensation and relies on Anaconda Nickel Ltd/State of Western Australia/Thomas and Ors (NNTTA 99, WF98/7, 19 March 1999) in which the Tribunal summarises its reasons for not awarding compensation, which included considerations as to the uncertainty of the law relating to compensation for native title rights, that the failure to make a condition for payment of compensation does not diminish the right to the same and that there is no evidence as to its need. The State points out that the non-extinguishment principle will apply to the grant.

Material provided by the Grantee

The Grantee party provides a Statement of Contentions in which it is said that it adopts all of the State’s submissions save submission 49 which relates to payment of compensation if compensation were made a condition of the grant. The Grantee contends that prior mining activities and the historical grant of tenements in the area the subject of the proposed lease have the effect of extinguishing any native title which may have been found to exist over the land, or at least limiting the nature of any existing rights. As a result it submits that any existing native title rights “would not be significantly impaired” by the doing of the act. I find that the evidence and other material before the Tribunal is inadequate to lead to a conclusion that native title has been extinguished.

[16.1] The contentions assert that an “Aboriginal heritage clearance survey was undertaken with the participation of the Native Title Party on 10 September 2004”, and that no impediments to the proposed drilling programme were discovered, either of an ethnographical or archaeological nature, and refers to Annexure “A”, being an affidavit sworn by Gregory Wayne Down on 27 October 2004 lodged with the contentions, the contents of which are set out hereunder:

‘I, GREGORY WAYNE DOWN, company Director, of 31/1 Corkhill Street, North Fremantle, Western Australia, being duly sworn MAKE OATH and say as follows:

1.     I am the applicant for mining lease 37/1164 (“Mining Lease”).
2.     By virtue of a Sale Agreement dated 8 December 2003 I agreed to sell the Mining Lease to Liberty Gold NL.
3.     I am a director of Liberty Gold NL and am authorised by it to make this Affidavit.
4.     Liberty Gold NL proposes to undertake a drilling programme on the Mining Lease, once granted. The nature of this drilling programme is outlined in the Geologist’s Report at page 30 of the Liberty Gold NL Prospectus which is annexed as Annexure “GWD1”.
5.     In my capacity as a Director of Liberty Gold NL I instructed Mike Lewis, Tenement Consultant, of Rubysands Pty Ltd and Wayne Glendenning of Western Heritage Research Pty Ltd to undertake an aboriginal heritage survey of the Mining Lease area. This survey was carried out on 10 and 11 September 2004 with two native title groups. One of the two groups was the Native Title Party. A copy of a letter from Mike Lewis relating to the survey is annexed as Annexure “GWD2” and a copy of the Preliminary Report of Wayne Glendenning is annexed as Annexure “GWD3”.
6.     I am aware from researching the area of the Mining Lease that considerable historic mining activity has taken place in the area. This is also identified in the Geologist’s Report in the Liberty Gold NL Prospectus (Annexure “GWD1”) at page 28.’

[16.2] Annexure “GWD2” comprises a letter dated 22 October 2004 signed by Mike Lewis, Tenement Consultant for Rubysands Pty Ltd, addressed to Greg Down and Deborah Marks of Liberty Gold NL, the relevant sections of which are set out hereunder:

‘Mining Lease 37/1164
Further to our recent discussions, the following is a summary of the recent heritage survey at Malcolm. This needs to be read in conjunction with my previous correspondence relating to ethnographic surveys.
Wongatha Claimants
An ethnographic survey was carried out on 9 September 2004 with senior Wongatha spokespeople. Present were – Aubrey Lynch, Leo Thomas, Cyril Barnes, Hector O’Loughlin, Dennis Forest, Dion Meredith, anthropologist Wayne Glenndenning and myself.
I have previously worked with all these parties on surveys with the exception of Mr Meredith. Upon arrival at site, I gave a presentation providing background on the proposed exploration activities of the company its management team (sic). Some disquiet was expressed by Mr Meredith about the tenement being an application held by Greg Down (Liberty) who he felt had not negotiated in good faith. No other member of the survey party expressed misgivings. I advised at the time that the reason for our visit was to conduct a heritage survey which was separate and distinct from negotiations I had not been involved with. Notwithstanding that, an offer was made that I would be happy to independently review matters relating to the Section 35 negotiations if all parties including Liberty Gold NL agree.
Following conclusion of my presentation the ethnographic survey proceeded with the result that the Wongatha agreed no ethnographic sites were present with prevent the company carrying out its mineral exploration and mining activities in the event of a viable ore body being located.
…
Archaeological Survey
An opportunistic archaeological survey was completed of the project area by archaeologist Wayne Glenndenning assisted by myself.
The purpose of an archaeological survey is to identify material evidence of past human activities and place that evidence within a social and scientific framework. Archaeology seeks to provide an interpretation of the past by examining the material record of past events that have survived into the present.
As stated earlier, archaeology provides an interpretation of the past and indeed different archaeologists can provide different interpretations from the same dataset. Archaeological interpretation of cultural material may also be at variance with ethnographic interpretations of the same objects although this has been little studied in an Australian context. Despite this, the disciplines of archaeology and ethnography should be seen a complementary ones.
The survey was effected through a series of pedestrian transects using the existing access tracks as baselines. Most of the survey effort was directed towards areas which were perceived to have a higher potential for site recovery including rock outcrops and water courses.
Relatively little archaeological material was located around Malcolm. This is seen to be a result of a number of factors. Firstly, the hills are quite steep and post-depositional actions, particularly water related activities, almost certainly would have washed away most, if not all of the archaeological record on or around the fill slopes. The level of physical disturbance around the hill as a result of previous mining activities is quite extensive and may have adversely impacted upon the archaeological signature of the area.
Three isolated artefacts were recovered which will be documented by archaeologist Wayne Glenndenning.
These will not have an effect on exploration as they do not constitute sites.
It is considered that enough area has been sampled to provide an overall picture of the archaeological signature of this area.
…’

[16.3] Annexure “GWD3” is entitled ‘Preliminary Report Aboriginal Heritage Survey Tenement, Mining Lease 37/1164 at Malcolm’ by Wayne Glendenning, Anthropologist/archaeologist for Western Heritage Research Pty Ltd. Relevant contents of the heritage survey report are set out hereunder:

‘… Ethnographic survey.
Wongatha Survey Team
The Wongatha native title claimant group survey was undertaken on the 10^th of September 2004. The Wongatha survey team comprised Wayne Glendenning, Mike Lewis and the following members of the Wongatha native title claimant group: Aubrey Lynch, Cyril Barnes, Leo Thomas, Hector O’Loughlin, Deon (sic) Meredith and Dennis Forrest. Following an address by Mike Lewis outlining the proponent’s intentions at the tenement, the Survey Team drove through the tenement.
No ethnographic impediments to the proponent’s proposed exploration drilling program within tenement 37/1164 were identified by the Wongatha.
…
Archaeological Survey
The archaeological survey was conducted on the 12^th September 2004 by Wayne Glendenning, who was assisted by Mike Lewis. The survey methodology comprised pedestrian inspection of the whole area of tenement M37/1164. The survey area is highly disturbed through nearly a century of mining activities.
No archaeological sites were identified as a result of the survey. There are therefore no archaeological impediments preventing the proponent’s exploration drilling programme from proceeding …’

Findings

As to the inferred “suggestion” by the State in its contentions that native title may have been extinguished in respect of the land the subject of the proposed lease, and the Grantee’s contention that the grant of previous mining tenements over the said land has extinguished native title in respect thereof, I find there is insufficient evidence to lead to a conclusion of extinguishment. I find however that the evidence of the grant of previous mining tenements (the “dead” tenements) is such as to lead to the conclusion that the said land has suffered substantial surface disturbance as a result thereof. This is supported by Mr Down’s affidavit testimony of “considerable historic mining activity” in the area of the proposed lease and the archaeological surveys of Mr Lewis and Mr Glendenning set out above as Annexures GWD2 and GWD3 to Mr Down’s affidavit. The evidence of the ‘dead’ tenements includes the number of each prior tenement and the period of their respective existences, including dates of grant and exploration.
Section 39(1)(a) – the native title party has submitted no material to suggest that any of the matters referred to in s 39(1)(a) will be adversely affected by the grant of the proposed lease. There are no submissions or evidence in respect of the land the subject of the proposed lease, nor any claim, submission or evidence of current, past or proposed enjoyment thereon by the native title party of any registered native title right or interest, of its way of life, culture and traditions, or of the development of its social, cultural and economic structures. It follows that there is no evidence that any such activity or matter would be restricted, prevented or otherwise adversely affected in any way by the grant. Nor is there any submission, statement or evidence of or in respect of the access which the native title party has been exercising or which it may wish to exercise, the conduct of rights, ceremonies or other activities on the proposed lease or of the existence of any area or site on or in its vicinity of particular significance in accordance with the native title party’s traditions. The native title party was given every opportunity to make submissions (I refer to the Directions of 3 June 2004 and 1 October 2004), and provide evidence as to such matters, but elected not to do so. That leads to the conclusion that the native title party considers that the grant of the proposed lease will not have any relevant adverse effect on the land the subject of the proposed lease. This conclusion is also supported by the affidavit evidence of Mr Down and the survey reports annexed thereto.
Section 31(1)(b) – there is no evidence whatever as to the interests, proposals, opinions or wishes of the native title party in respect of the matters referred to in s 39(1)(b). I therefore conclude that the Wongatha People have no views on the subject of management, use or control of the land the subject of the proposed lease and are content to reply upon the provisions of the AHA and the conditions which will apply to the grant.
Section 39(1)(c) and (e) – with respect to these sections I agree with the State as to the economic significance of the grant to Western Australia and as to the public interest in the same and rely also on the judgement of Nicholson J in Evans v Western Australia (1997) 77 FCR at 215, that “where there is evidence the proposed act will have the effect of contributing to ongoing activities essential to the health of the mining industry and to the economy, that will be evidence falling within the statutory description of public interest which must be taken into account.” I also adopt the undermentioned findings of the Tribunal in WF96/3, Western Australia v Thomas [1996] NNTTA 30, (1996) 133 FLR 124 (Hon CJ Sumner, Ms P O’Neil and Mr G Neate):
‘(a)Western Australia dominates Australia’s mineral and energy investment, exploration and production;
(b)the continuing development of productive mining depends on the discovery of new mineral reserves;
(c)mining in general is significant to the Australian and Western Australian economies; and
(d)the public interest is served by the maintenance of an active minerals exploration programme and the continuing development of the mining industry.’
Section 39(1)(f) – I agree that the effect of the act on the natural environment is a possible relevant factor and draw attention to Hon CJ Sumner’s finding in WMC Resources vs Evans [1999] NNTTA 372; (1999) 163 FLR 333 that the Tribunal is entitled to take into account the regulatory regime in effect in the State and to his inferential finding that the effect on the natural environment is relevant only to the extent that the grant also affects one or more of the factors the subject of s 39(1)(a) of the Act. There is no evidence in this case of any such effect. I am satisfied by the conditions and endorsements said to be applicable to the grant of any mining lease, and by the sections of the Mining Act and the AHA referred to in paragraph [15.1] of this determination, that the Western Australia regulatory regime is quite sufficient to minimise any effect of the act on the natural environment.
The native title party has made no submissions, claim or evidence regarding a payment of monies into a trust for compensation, therefore I have before me no evidence on which to assess the matter. In any event it is open to the native title party to apply to the Federal Court for compensation should such a course of action be considered appropriate. I would not impose any condition as to compensation.

Determination

The determination of the Tribunal is that the Act, being the grant of Mining Lease M37/1164 to Gregory Wayne Down, may be done subject to the imposition thereon of the following conditions:

Any right of the native title party (as defined in Section 29 and 30 of the Native Title Act 1993) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operation or for safety or security reasons relating to those activities.
If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.
Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.
Upon assignment of the mining lease the assignee shall be bound by these conditions.

The Hon EM Franklyn QC

Deputy President

22 November 2004