Yindjibarndi Aboriginal Corporation/State of Western Australia/FMG Pilbara Pty Ltd
[2013] NNTTA 162
•29 November 2013
NATIONAL NATIVE TITLE TRIBUNAL
Yindjibarndi Aboriginal Corporation/State of Western Australia/FMG Pilbara Pty Ltd [2013] NNTTA 162 (29 November 2013)
Application No: WO2013/0147
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Yindjibarndi Aboriginal Corporation (WCD2005/001) (native title party)
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The State of Western Australia (Government party)
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FMG Pilbara Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven
Place: Perth
Date: 29 November 2013
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 237
Aboriginal Heritage Act 1972 (WA), s 18
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Butcher Cherel’)
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 ('Champion')
Cheedy v Western Australia [2011] FCAFC 100; (2011) 194 FCR 562 ('Cheedy')
Daniel v Western Australia [2005] FCA 536 ('Daniel')
Jack Dann and Others on behalf of the Unggumi Ngarinyin People/Western Australia/GPA Distributors Pty Ltd [1995] NNTTA 43 (‘Dann’)
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 ('Karajarri')
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22 (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker 1’)
Parker v Western Australia and Others [2008] FCAFC 23; (2008) 167 FCR 340 (‘Parker 2’)
Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver’)
Smith v Western Australia and Another [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’)
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, [2007] NNTTA 82 (‘Dambimangari’)
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’)
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Asia Investment Corporation’)
Yindjibarndi Aboriginal Corporation/Western Australia/Croyden Gold Pty Ltd [2013] NNTTA 71 (‘Croyden Gold’)
Yindjibarndi Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2013] NNTTA 150 (‘Yindjibarndi’)
Representatives of the Mr George Irving, Yindjibarndi Aboriginal Corporation
native title party Ms Christina Araujo, Yindjibarndi Aboriginal Corporation
Representatives of the Ms Caitlin Martin, State Solicitor’s Office
Government party Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the Mr Ken Green, Green Legal
grantee party Ms Nerolie Nikolic, Fortescue Metals Group Limited
REASONS FOR DETERMINATION
On 14 November 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice (‘the notice’) under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2678 (‘the proposed licence’) to FMG Pilbara Pty Ltd (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
According to the s 29 notice, the proposed licence is approximately 89.6 square kilometres in size and is situated 69 kilometres east of Pannawonica.
On 8 February 2013, an objection application against the inclusion of the statement of expedition in the s 29 notice for the proposed licence was lodged with the Tribunal by the Yindjibarndi Aboriginal Corporation (‘YAC’) on behalf of the Yindjibarndi People (WC1999/014). YAC is a registered native title body corporate under the Act, and holds determined native title rights and interests in trust for the Yindjibarndi People, as outlined in Daniel (WCD2005/01). The determination overlaps the proposed licence area by approximately 98.86 per cent. I note that the decision in Daniel had the effect of extinguishing native title in parts of the proposed licence, such that native title does not exist in approximately 47.1 per cent of the 98.86 per cent overlap, and does exist on a non-exclusive basis in the remainder of that overlap. YAC will be referred to as the native title party in this decision.
In accordance with standard practice, directions were set for this matter following a request from the grantee party for the matter to proceed to inquiry. Directions were amended twice at the request of parties and, once all submissions had been made, parties confirmed they had no objection to the matter proceeding to be determined on the papers.
On 28 October 2013, I was appointed as the member for the purpose of conducting the inquiry.
The following information and evidence was provided in relation to the proposed licence:
Materials from DMP on 4 April 2013 including reports and plans from the Department of Aboriginal Affairs ((DAA) – formerly the Department of Indigenous Affairs (DIA)), Sites Register, copies of the tenement application; and a Tengraph quick appraisal.
Contentions and evidence of the native title party dated 12 June 2013, including the following:
oDIA submissions to the DIA Functional Review Committee (Annexure 1);
oReport of the Review of the Department of Indigenous Affairs (Annexure 2);
oWestern Australian Auditor General’s Report: Ensuring Compliance with Conditions on Mining (Annexure 3);
oUnsigned affidavit of Michael Woodley (subsequently sworn and provided to the Tribunal on 13 June 2013) (Annexure 4);
oNgarluma Yindjibarndi map (Annexure 5);
oLease agreement between Water Resources Ministerial Body & Water Corporation & YAC (Annexure 6);
oTwo separate maps of the proposed tenement area (Annexure 7 & 8);
oYMAC Agreement (Annexure 9);
o2011-2012 DIA Annual Report (Annexure 10); and
oPriority Ecological Communities for WA, version 18 (Annexure 11).
Contentions of the Government party, dated 10 July 2013.
In relation to the Grantee party, they advised they were unable to prepare contentions and evidence within the time directed. The Government party refers to information relating to the grantee party and its activities, in the Government party contentions.
A map was generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 21 August 2013 for comment. No comments were received.
Legal principles
Section 237 of the Act provides:
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, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles 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 principles outlined in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following principles from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38], [40]-[41] (see also Parker 1 and Parker 2).
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, on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little, in particular [588]-[589]).
Information and Evidence in Relation to the Proposed Act
Native Title Party
Mr Woodley affidavit
From the material available in this matter, I accept that Mr Woodley is authorised to speak about Yindjibarndi country and for the native title party. In relation to the proposed licence, Mr Woodley states there are pictures of the Marrga (powerful creative spirit beings) carved in rocks and painted in caves and rock shelters. He outlines various information about processes and structures of authority within the community and information about ceremonial activity structures. He also outlines a number of places or sites in and around the proposed licence that include birth sites, a burial site, an ochre quarry and areas used for camping, hunting, fishing and collecting bush tucker. He states (at 36) that the Wanarranfa Ngurra (‘home area’) will be affected by grantee party activities.
Mr Woodley states that he and 'all the members of the Ngurrawaana community frequent the places shown on the map [annexed to his affidavit]...on weekends and holidays as part of our ongoing commitment to look after our country' (at 44). He states that they gather, hunt, camp, fish and collect artefacts and ochre. He states that the Yindjibarndi People have a Memorandum of Understanding with the Department of Environment and Conservation for the area of the Millstream-Chichester National Park which allows them to practice Yindjibarndi law, including conducting ceremonies, camping and hunting.
Mr Woodley states that he, and many other Yindjibarndi People, regularly fish from the numerous pools and water sources within the proposed tenement and collect the eggs of nesting water birds. He states that any interruption to these waters could affect fish supplies.
Mr Woodley states that Ngurrawaana Rangers work every day in the area and conduct activities such as looking after water places, flora and fauna, and Yindjibarndi sites.
Mr Woodley also states they visit the following sites (outlined at 20 and 81 onwards of his affidavit):
Binyjimanarnjarri (Daniels Well) – a birth and burial site.
Bayuwanarra Thalu/Marlu (also located at Daniels Well) – a Plain Kangaroo increase site.
Marlinha Jinbi (spring) – a permanent spring and important water source for the Yindjibarndi People which also contains artefacts from the Yindjibarndi old people and an ochre quarry.
Wundus (water courses) and Jinbi (springs), including Marlianda Wundu, Mirnitinha Wundu, Gurdinha Wundu, Munawanha Wundu and Wanarranha Wundu - which he states are all areas of particular significance as they are the home of the water serpent, and require a Wuthurru ritual to be performed by a Yindjibarndi Ngaarda when they are approached.
Rock painting and etching sites that depict Marrga – Mr Woodley states he has recorded the location of one such site within the proposed licence, however, he states the native title party were unable to record the locations of all these sites due to limited time and resources.
A water source (Murlungarli) that contains artefacts and an ochre quarry where ochre is collected for ceremonies and rituals.
Jijili Nyrrgun Jinbi, a water source, permanent camp and birthplace which Mr Woodley states is a place of particular significance. Evidence of occupation in this area includes artefact scatters, grinding stones and scar trees.
Two Marnda sites, one of which has a song and a corroboree, the other used to help ‘Yindjibarndi People navigate the country and direct us to camping sites’ (at 81).
Two ochre sites, one of which Mr Woodley identifies as having a ceremony that goes with it. Mr Woodley states the ochre is mined by Yindjibarndi People and used to paint themselves for ceremonies and corroborees.
Yandinyirra (Fortescue River), which Mr Woodley states is close to the proposed tenement and has numerous sites of particular significance.
Mr Woodley makes broad claims about disturbance to land or waters in relation to the proposed licence area, and provides a table of animals that reside in the Wanarranha Ngurra area, their Yindjibarndi name and the associated song/ Dreaming story. However, Mr Woodley’s affidavit is broad and general in nature in regards to the effect the proposed tenement will have on the land and waters. I deal with this in more detail later in this determination, under consideration of s 237(c) of the Act.
The native title party contentions
In relation to s 237(a), the native title party submits the native title rights recognised in the determination of native title constitute community or social activities, which are carried on continuously by Yindjibarndi people and constitute religious practices, rituals or ceremonies that manifest the religious beliefs of members of the Yindjibarndi community. The native title party contends the grant of the proposed licence is likely to interfere with those activities, specifically:
the activities carried on by Yindjibarndi people in ‘looking after’ and managing Yindjibarndi country and sites or areas of particular significance; and
the activities carried on by Yindjibarndi people that manifest the religion and beliefs of the Yindjibarndi people, including the observance, practice and teaching of religious rituals and ceremonies associated with sites and areas of significance to the Yindjibarndi people.
The native title party also note that a portion of the proposed tenement overlaps the ‘Leramagudu Lease’, being a lease agreement granted to YAC for the ‘practice of traditional Aboriginal way of life’. A copy of this lease agreement has been provided as an annexure to the contentions. The lease agreement states that the lease relates to a 'portion of Reserve 38991...shown as Area A and Area B coloured green on the attached plan', however, this attached plan does not appear to have been provided. The Quick Appraisal provided by DMP does indicate that Reserve 38991 overlaps the proposed licence by 24.5 per cent, or approximately 2500.81 hectares. However, whether this area is one and the same as the area the subject of the lease is unsubstantiated by the native title party.
The native title party submits the importance of ‘looking after’ Yindjibarndi country is magnified by the level of total extinguishment of native title rights and interests in the whole of the determination area, such that a finding based on a comparison between the size of the proposed licence and the total determination area is not open to the Tribunal. I agree that it is important for me to look at the non-extinguished area of the proposed licence, however, the contentions in this matter appear to be focused largely on the activities carried out on the whole of the determined area. There is little in the contentions that draws my attention to social and community activities relevant to the proposed licence specifically.
In relation to s 237(b), the native title party submits the area of the proposed licence includes areas and sites of particular significance to the native title party, which are not limited to the sites recorded on the DAA Register of Aboriginal Sites.
The native title party contend that the two registered sites referred to in Government party evidence provided by DMP appears incorrect and/or incomplete because YAC data, sourced from the DAA website, indicate there is an additional registered site, being Site ID 10893. It appears that this ‘site’ identified by the native title party is in fact one of two ‘other heritage places’ that overlap the proposed licence, and is not a registered site. Information regarding ‘other heritage places’ is readily available on the DAA website, and I do not accept the native title party’s contention that this is evidence of an inability by the Government party to properly manage and protect Aboriginal sites. It would, however, be useful if the Government party included information on other heritage places as well as any registered sites to avoid misunderstandings such as this.
The native title party relies on the evidence of Mr Woodley that there are areas, sites and objects of particular significance to the Yindjibarndi people that would be affected by the grant of the proposed licence, including sites that do not appear on the Register and other sites or areas that are not located within the area of the proposed licence. However, no clear nexus has been provided between those sites and issues being considered in relation to s 237, as outlined later in this determination.
The native title party also refer to the findings of Nicholson J in Daniel concerning the significance of watercourses and thalu in Yindjibarndi country. However, the native title party does not identify the specific findings it seeks to rely on, and without such guidance within the submissions or affidavit material, it is difficult to isolate any of Nicholson J’s findings which appear to relate directly to the significance of sites or areas within the proposed licence.
In relation to s 237(c), the native title party contends the grant of the proposed licence or the exercise of rights authorised by the grant will:
prevent the full enjoyment of the rights possessed by Mr Woodley and other Yindjibarndi people to freely manifest their religious beliefs, through the observance, practice and teaching of particular religious rituals and ceremonies directly associated with areas and sites of significance;
prevent the exercise of the right possessed by Mr Woodley and other Yindjibarndi people to enjoy their own culture and profess and practice their own religion by looking after and caring for the land and waters concerned, and the sites and areas situated therein, in the manner required by their culture and their religion.
The native title party submits that these things will ‘inflict suffering upon members of the Yindjibarndi community, and will cause damage to the Yindjibarndi People’, as it will cause the breach of traditional laws and customs. In this respect, the native title party submits that international instruments should be taken into account in the construction of the term ‘disturbance’, including Article 18 and 27 of the International Covenant on Civil and Political Rights. The Government party states there is no scope for considering the relevance of international instruments, and that this point has already been upheld in Cheedy at [105]-[109], which principles I adopt in this matter.
Specifically, the native title party argues that the exercise of rights under the proposed licence without a negotiated agreement will prevent the exercise of fundamental human rights by interfering with the free exercise of the Yinjibarndi’s religious observances and practices, which would be considered by the general community to constitute major disturbance to the land or waters concerned. This point is dealt with under consideration of the evidence relating to s 237(c) of the Act, later in this determination.
In addition, the native title party contends the proposed licence area is environmentally sensitive and requires protection. In support of this contention, they cite the affidavit of Mr Woodley and a document produced by the Department of Environment and Conservation (at Annexure 11 to Mr Woodley's affidavit). The native title party highlights two ‘priority 1’ ecological communities listed in this document, whose identified threats include mining and increased infrastructure. However, the document notes that ‘inclusion in this table of a community type does not necessarily imply any status as a threatened ecological community’, and that the information may not be construed as a nomination for listing under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Further, this is information pertaining to the entire Pilbara region, and there is no information provided which relates it to the proposed licence area specifically. The evidence provided by Mr Woodley is similarly broad and there is no information provided relating it to the proposed licence area specifically. Further, the affidavit for the most part describes the ways in which the native title party are protecting and looking after the land and waters in the area, rather than specific issues or activities which may lead to disturbance of land or waters in the area, or any special features in the area which may be so disturbed.
In relation to the Tribunal’s task of performing the predictive assessment under s 237, the native title party contends the Tribunal should not rely on a presumption of regularity to the effect that the grantee party will act lawfully in exercising its rights under the proposed licence. The native title party contends there is evidence which demonstrates that public officials and Government departments responsible for enforcing compliance with environmental and Aboriginal heritage conditions are incapable of enforcing compliance by grantee parties in general, and the grantee party in particular. In support of that contention, the native title party relies on DAA (then DIA) submissions to the Functional Review Committee established to review the Department’s performance in 2006, the report of that review, and the Auditor-General’s report entitled Ensuring Compliance with Conditions on Mining and published in September 2011. On the basis of these reports, the native title party submit that the inability of the relevant Government departments (specifically, the DAA and the DMP) to monitor compliance with the various regulatory regimes means that the Government party will be unable to determine whether the grantee party has complied with those regimes. I have dealt with similar arguments in Karajarri, and adopt the findings I made in that decision, in particular at [50], [53], [85], [86] and [91]. As such, I do not intend to make further comment on this point.
In addition to its criticisms of the regulatory regime, the native title party submits the grantee party has a history of non-compliance with the regulatory regime and disregard for the protection of sites of particular significance to the Yindjibarndi people. It is unclear exactly how this last contention relates to the grantee party’s compliance with the regulatory regime or the likelihood of interference or disturbance of the kind contemplated under s 237, but this and these other such contentions are dealt with under the consideration of evidence relating to s 237(b) of the Act, later in this determination.
Government Party
Government party documentation establishes that significant underlying land tenure over the whole of the proposed licence includes: unallocated crown land at 52.8 per cent; Crown Reserve 30071 (National Park) at 20.6 per cent; Crown Reserve 38991 (water supply) at 24.5 per cent; and Crown Reserve 36991 (water supply and pipeline) at 1.5 per cent.
According to the DMP quick appraisal, there is one live and four pending Miscellaneous Licences which overlap the proposed tenement area between 0.1 and 11.4 per cent; three General Leases that cover the proposed licence area between 0.1 and 0.3 per cent; and one ‘dead’ Exploration Licence, active between 2006 and 2006, which overlaps the proposed tenement area at 62.5 per cent.
Services affected include SSM-Redbank; 10 minor roads; 17 tracks; two railways; one bridge; two tanks; one well/bore; 12 pipelines (eight of which are above ground); one transmission line; and 10 spring/soak/rockhole/waterhole (including Meeringinya Spring and Carloonboona Pool).
The DAA registered sites list indicated two sites on the proposed licence which are:
Site ID 6892 – Portland River Tributary 2 – quarry, artefacts/scatter;
Site ID 7855 – Mirinkinya – Camp, water source.
Tribunal mapping also identifies two ‘other heritage places’, being:
Site ID 6891 – Portland River Tributary 1 – artefacts/scatter; and
Site ID 10893 – Powerline Survey 086 – artefacts/scatter.
The draft tenement endorsements and conditions extract provided by DMP indicates that the grant of each of the proposed licences will be subject to the following conditions:
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2.All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
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 Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.The rights of ingress to and egress from Miscellaneous Licence applications 47/247, 47/249, 47/433, 47/458, 47/506, 47/530, 47/541, 47/542 and 47/597 being at all times preserved to the licencee and no interference with the purpose or installations connected to the licences.
8.The rights of ingress to and egress from Miscellaneous Licence 47/235 and application for Miscellaneous Licence 47/217 being at all times preserved to the licencee and no interference with the purpose or installations (either present or future) connected to the licences.
9.No interference with Geodetic Survey Station SSM - REDBANK and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
10.No interference with the transmission line or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
11.Mining on a strip of land 20 metres wide with any pipeline as the centerline being confined to below a depth of 31 metres from the natural surface and no mining material being deposited upon such strip and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
12.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained, with the concurrence of the Minister for Environment, before entering or commencing any prospecting or exploration activity on Millstream Chichester National Park.
13.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water Supply Reserve 38991.
14.No mining on a strip of land 60 metres wide with the Pannawonica Railway Line as the centreline and no materials being deposited or machinery or buildings being erected on such strip of land.
15.Blasting operations being controlled so that no damage or injury can be caused by fly rock, concussion, vibration or other means.
16.The licensee shall not interfere with any installations, structures, excavations, roads and improvements situated or to be situated on General Leases I123390, I123393 and I123646 (the General Leases.
17.The rights of ingress to and egress from the Leases being at all times preserved to the lessee.
18.No activities being carried out within the proposed railway corridor (designated FNA 9589) that interfere with or restrict any rail route investigation activities being undertaken by the rail line proponent.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of each of the proposed licences:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
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.
3.The grant of this Licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4.The Licensee’s attention is drawn to the provisions of the:
· Waterways Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
5.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
6.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
7.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
8.Advice shall be sought from the DoW if proposing any exploration in respect to licence purpose within a defined waterway and within a lateral distance of:
· 50 metres from the outer-most water dependent vegetation of any perennial waterway, and
· 30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water Areas (Pilbara) the following endorsements apply:
9.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issues by DoW
10.All activities to be undertaken with minimal disturbance to riparian vegetation.
11.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by DoW.
12.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres or an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas (Catchment Area 48) the following endorsement applies:
13.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
In respect to Public Drinking Water Source Areas (Catchment Area 48) the following endorsement applies:
14.All activity within proclaimed public drinking water source areas (PDWSA) shall comply with current published version of the DoW’s [Quality Protection Note 25 Land Use Compatibility in Public Drinking Water Source Areas]. Key issues that need to be considered within the Water Quality Protection Note are:
·All exploration involving the storage, transport and use of toxic and hazardous substances (including human wastes) within public drinking water source areas being prohibited unless approved in writing by the DoW.
·All exploration is prohibited within any reservoir including the reservoir itself) or within a wellhead protection zone, unless approved in writing by the DoW (location of zones available from DoW’s Water Source Protection Branch or regional office).
·Seek written advice from the DoW if handling, storing and/or using hydrocarbons and potentially hazardous substances.
The Government party indicate that the grantee party offered to enter into a Regional Standard Heritage Agreement with the native title party on 16 October 2012, and support that contention with a copy of the appropriate statutory declaration indicating the offer occurred on that date.
The Government also provide details of the grantee party’s proposed method of exploration, as outline in their tenement application (attached to the Government party’s contentions), which include:
literature research;
aerial photography and remote sensing imagery;
geological mapping and rockchip sampling;
interpretation of data sets;
reverse circulation and diamond drilling;
interpretation, resource estimation and technical reporting; and
metallurgical testing.
The Government party note that a significant portion of the proposed tenement is covered by Crown Reserves 30071, 36991 and 38991, which has the effect of wholly extinguishing native title in that area. The native title party contentions do not appear to address this point and many of the areas and sites they have identified and refer to in their evidence fall over wholly extinguished native title area. The Tribunal has no jurisdiction to consider whether the proposed exploration is likely to cause the s 237 interference or disturbance in areas where native title has been extinguished. However, the Tribunal has previously found that evidence relating to community or social activities, or sites or areas of particular significance outside of our jurisdiction may be relevant to assessing the frequency and nature of community or social activities or existence of areas or sites of significance on the land areas (Dambimangari at [18]).
The Government party state that the affidavit provided by the native title party contains very little evidence relevant to the considerations under s 237, and should be treated cautiously (at 26).
Government party - s 237(a)
In relation to s 237(a), the Government party state that the primary ‘activity’ the native title party contends, being the obligation of ‘looking after’ country, is not a community or social activity of the kind contemplated by s 237(a) of the Act. I agree with this statement to some extent, in that the description provided in this matter does not constitute community or social activity of the kind contemplated by s 237(a) of the Act. However, the crux of the issue is really that the native title party’s evidence in this matter does not address how the country over the proposed licence is looked after, rather than an issue of that activity being one which could never be considered under s 237(a).
The Government party also states there is no physical activity identified with which interference is likely. They accept there is some ‘limited specific evidence that Mr Woodley and others visit, camp, hunt, fish and gather resources at places in and around the proposed tenement area’ and that Ngurrawaana Rangers may conduct similar activities (at 45), but they say it is not clear whether these activities are done over the portion of the proposed tenement where native title has not been extinguished (at 45). Again, my comment is that rather than those activities being such that they can be disregarded because they have not been shown to exist in a certain part of the proposed licence, the native title party evidence in this matter is not particular about how these activities are conducted on any part of the proposed licence, or any area which may be adjacent to or near the proposed licence. Rather, much of the evidence is cast in broad terms, regarding activities done in Yindjibarndi country.
The Government party states there is not likely to be direct interference with native title party activities because:
the grantee party is willing to enter into an RSHA;
there are no Aboriginal communities within the proposed licence;
the native title party’s contention that they hold a lease over Reserve 38991 for ‘the practice of traditional Aboriginal ways of life’ is unsubstantiated by the document provided in support due to the fact that the document is unsigned, undated and incomplete. Regardless, the lease relates to an area over which native title has been wholly extinguished and is, therefore, irrelevant to the purposes of this inquiry;
the area of the proposed licence has been subject to prior mineral exploration and mining activity, and approximately half of the proposed licence is overlapped by reserves which wholly extinguish native title. The activities of the native title party have been ‘subject to, or coexistent with, all of these lawful activities for a significant period of time’ (at 46c); and
the low scale and infrequent exploration activities planned by the grantee party do not appear likely to have any disruptive effect upon activities in the proposed licence area.
Government party - s 237(b)
In relation to s 237(b), the Government party outline that the reports and documents referred to by the native title party in their contentions and affidavit do not overturn the presumption of regularity.They also state that to the extent the native title party has alleged that the AHA ‘is applied in a manner so as to facilitate mining and industry’, that the process is ‘manipulated’ by companies, and that s 18 AHA consents are granted by the Minister in improper circumstances, these are serious allegations and are unsubstantiated claims.
The Government party also point to the cases of Dann and Croyden Gold where the Tribunal had rejected submissions similar to those made by the native title party in the present matter. I accept that argument and again, these arguments are further dealt with in consideration of s 237(b) evidence later in this determination.
The Government party also states that the persons who are the holders of native title are the ones whose areas or sites of particular significance must be interfered with to trigger s 237(b). They state ‘the evidence and contentions provided by the native title party are somewhat unclear as to the location and extent of the sites referred to’ (at 76). Based on this evidence, the Government party accept that only one site, Marlianha Jinbi, falls within the area of the proposed licence where native title exists. The Government party state that the location of Marlianha Jinbi appears to coincide with registered site 6892, although it is difficult to be certain of this given the limited information available. Regardless of this, the Government party state that registration as a site under the AHA is not determinative of whether a site is of particular significance, and in this instance, insufficient evidence has been provided by the native title party to support this contention.
The Government party state that overall, interference with sites or areas of particular significance on the proposed licence is unlikely because:
It has been subject to prior mineral exploration and approximately half is covered by reserves which have wholly extinguished native title;
Exploration activities will be low impact and non intrusive;
The grantee party has agreed to execute a RSHA; and
The regulatory regime is likely to prevent interference with any site of particular significance.
The Government party also points out that the native title party’s concerns often relate to mining, but what is proposed in the present matter is exploration, which is low impact in nature.
Government party - s237(c)
The Government party states that the native title party affidavits do not provide evidence of disturbance to land or waters. In addition, the Government party states that major disturbance to land or waters is unlikely because:
of the State’s regulatory regimes;
of the proposed conditions and endorsements (some of which specifically concern the protection of waterways and National Parks);
the proposed licence has been subject to prior mineral exploration
the proposed licence area does not have particular characteristics that would be likely to result in major disturbance as per s 237(c), with the ecological communities identified in the native title party’s evidence being located in the “Pilbara” region, and not the proposed licence area specifically.
Considering the Evidence in context of s 237 of the Act
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The grantee party’s intended activities, outlined in their proposed exploration program submitted to DMP, are outlined at [40].
The native title party’s contentions and evidence in relation to s 237(a) are outlined at [14]-[18] and [20]-[22] above.
The Government party contentions in relation to s 237(a) are outlined at [33]-[45].
Bearing in mind the material discussed in those paragraphs of this determination, I conclude that evidence has been put forward that the native title party frequent Yindjibarndi country to gather; hunt; camp; fish; and collect artefacts and ochre. However, there is insufficient evidence to indicate the extent to which these activities take place on the proposed licence area itself, or areas adjacent to or near the proposed licence.
I also note that even assuming such activities do take place on the proposed licence area, a large portion of that area is covered by reserve, and therefore native title has been wholly extinguished on those portions.
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investment Corporation at [14]). Based on the available evidence, I cannot say it appears that exploration activities are likely to directly interfere with any community and social activities carried on in (or in the vicinity of) the proposed licence area.
In the circumstances, taking into account the evidence available, I am unable to conclude that there is likely to be interference of the kind contemplated by s 237(a) of the Act in this matter.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine under s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (or more than ordinary) significance to the native title party in accordance with their traditions.
The native title party evidence and contentions in relation to s 237(b) are outlined at [18] and [23]-[26].
The Government party contentions in relation to s 237(b) are outlined at [33]-[42] and [46]-[49]. Even if there were sites of particular significance within the proposed licence, the Government party states it is unlikely they would be interfered with, as outlined at [50].
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 protection regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see for example the summary of cases as outlined in Butcher Cherel (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 there will be interference with those sites.
I appreciate that Mr Woodley has a great deal of knowledge and understanding in relation to sites relevant and important to the native title party. The question for the Tribunal is whether, through the native title party’s contentions and evidence provided, it has been made clear that any of the sites referred to in this matter are sites of particular significance. Mr Woodley refers to a number of sites; however, having considered the various evidence in relation to the proposed licence area, descriptions of the site locations and tenure mapping, the only site I am confident lies within the Tribunal’s area of jurisdiction is Marlianha Jinbi (Spring).
The Government party argue that insufficient evidence has been provided to support the contention that Marlianha Jinbi is a site of particular significance. However, I do accept that this is a site of particular significance, as it has been identified as to its location, its significance in itself, and its significance in relation to religious ceremonies and law.
In relation to whether sites of particular significance are likely to be interfered with, the native title party have provided a range of evidence in relation to alleged past grantee party activities, which the native title party suggests indicate a course of conduct which shows little regard for native title party sites and heritage issues. The evidence and contentions provided by the native title party in relation to this point are broadly the same as that considered in Yindjibarndi and I adopt my findings from that matter (at [88]-[90]). As in that case, I find no evidence which indicates the grantee party deliberately ignored or failed to comply with the State's regulatory regime. Further, I conclude the evidence about the grantee party’s past conduct does not establish interference is more likely to occur in this matter compared with any other matter. I have already dealt with the question of the effectiveness of the State's regulatory regime at [31] above.
Considering then that I can draw no adverse inference about the grantee party's future behaviour or intentions relating to site protection from the evidence presented in this matter, I turn to the question of whether disturbance or interference is likely to occur to the site of particular significance identified, in terms of s 237(b) of the Act.
The area of Marlianha Jinbi has been identified by Mr Woodley on a map annexed to his affidavit, and it is quite possible this is the same site as Registered Site 6892. If that is the case, the grantee party is on notice of this area and its significance to the native title party. Even if it is not the case that these sites are one and the same, the grantee party will be conducting exploration, rather than mining activities on the land, and by their nature, exploration activities are relatively low impact. Further, the grantee party has offered to enter into an RSHA with the native title party.
Major disturbance to land and waters (s 237(c))
The Government party submissions for this sub section are outlined at [33]-[42] and [51] above.
The native title party’s submissions in relation to s 237(c) are outlined at [19] and [27]-[30] above.
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]). This includes cultural concerns (as per Dann).
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 (see Champion at [74]-[79] and the cases cited therein).
I do not believe this matter falls into the category of exceptions. The native title party contentions on s 237(c) are brief and do not relate specifically to the area in question. They provide little detail on what activities might disturb the land and waters within the proposed licences. The native title party submits there will be an effect on the native title party’s religious observances by the grant of the proposed licence. For example, Mr Woodley states (at 89), 'many of the significant sites and places discussed above [as outlined in this determination] are associated with particular religious rituals or ceremonies which we are required to perform under the Birdarra Law, to keep our country and our culture alive'.
The native title party contentions (for example, at 92) also outline that the affidavit of Mr Woodley supports conclusions that the grant of the proposed licence will prevent the native title party from: 'freely manifest[in] their religious beliefs, through the observance, practice and teaching of particular religious rituals and ceremonies, in the land and waters of the Proposed Tenement, directly associated with the areas and sites of significance situated therein'. The contentions also state the grant of the proposed licence will prevent the native title party from exercising their culture (as outlined at [27] above). As per Dann, I must take into account these cultural beliefs and concerns. However, there is little evidence about the nature of those activities and how they relate specifically to land and waters within the proposed licence in relation to the application of s 237(c) of the Act. Rather, the evidence is general and largely focussed on Yindjibarndi country as a whole.
In addition, the native title party contends that international instruments should be taken into account in the construction of the term ‘disturbance’, and I have already dealt with this contention at [28] of this determination.
In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of other factors, including:
· the conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation;
· the grantee party’s offer to enter into an RSHA upon request from the native title party;
· the endorsements on the proposed licence which direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
· the lack of evidence of any special topographical, geological or environmental factors which would lead members of the Australian community to think that exploration activities would result in such major disturbance.
Taking into account all of these considerations, I do not find that major disturbance to land and waters is likely to occur in this matter.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E47/2678 to FMG Pilbara Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
29 November 2013
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