Yindjibarndi Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd
[2013] NNTTA 150
•23 October 2013
NATIONAL NATIVE TITLE TRIBUNAL
Yindjibarndi Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2013] NNTTA 150 (23 October 2013)
Application No: WO2012/1176
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, Member
Place: Perth
Date: 23 October 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, 151(2), 155, 237
Aboriginal Heritage Act 1972 (WA), s 18
Mining Act1978 (WA), s 66
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')
Cheinmora v Heron Resources Ltd [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’)
Daniel v Western Australia [2005] FCA 536 ('Daniel')
David Smirke & Ors on behalf of Jurruru People/Western Australia/Aurora Resources Pty Ltd [2009] NNTTA 142 ('Smirke')
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 Tarlpa /Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 ('Allarrow')
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’)
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Iron Duyfken’)
Miriuwung Gajerrong 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd [2006] NNTTA 74 ('Seaward Holdings')
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’)
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’)
WF (deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 ('Emergent')
Wilfred Goonack on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72 ('Geotech')
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’)
Representatives of the Mr George Irving, Yindjibarndi Aboriginal Corporation
native title party Ms Christina Araujo, Yindjibarndi Aboriginal Corporation
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party Ms Clyde Lannan, Department of Mines and Petroleum
Ms Bethany Conway, Department of Mines and Petroleum
Representative of the Mr Ken Green, Green Legal
grantee party
REASONS FOR DETERMINATION
On 11 July 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2574 (‘the proposed licence’) to FMG Pilbara Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
On 6 November 2012, 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 22.17 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 2.81 per cent of the 22.17 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.
An objection was also lodged by the native title party in respect of the registered native title claim of Yindjibarndi #1 (WC2003/003), which overlaps the proposed licence area by approximately 77.8 per cent. However, the Tribunal did not accept that the native title party had authority to act on behalf of the registered claimants for Yindjibarndi #1 at the time the objection was lodged. As such, that objection was not accepted under the Act.
Parties have made submissions about the extent to which I can consider submissions made in relation to the area covered by the objection which was not accepted. The native title party contends that I can take submissions in relation to that part of the proposed licence area into account. The Government party and grantee party propose that I should only be concerned with that portion of the proposed licence area covered by the determined area (excluding any areas where native title is extinguished). Clearly, the determined area that overlaps the proposed licence area is subject to a valid objection, and so any evidence in relation to that area can form part of my consideration in this matter. The objection in relation to the remainder of the area of the proposed licence was not accepted by the Tribunal, yet the native title applicants are also Yindjibarndi people, who claim to be exercising native title rights and interests on and around the proposed licence area.
The role of the Tribunal is to decide whether YAC ought to have the right to negotiate in relation to the future act - that is, does the expedited procedure apply or not? In previous matters, such as Seaward Holdings and Silver, this type of issue was canvassed where it was determined that if there was a sufficiently close nexus (for example, between a site or community activity outside of a proposed licence and the relevant area) then that site or activity could be considered.
As such, I have considered evidence in relation to the claimed area in terms of sites or areas of particular significance not located within the determined area of the proposed licence, and community or social activities carried out which are not in the determined area of the proposed licence, but which could still be interfered with in the sense contemplated by s 237, provided there is a clear nexus between those sites and activities and the issues being considered in the determined area objection under s 237. In any event, the conclusion I have reached on this objection would have been the same whether or not the claimed area evidence was included (using the nexus test or as stand alone evidence), and this is dealt with under the section of this determination headed 'Considering the Evidence in context of s 237 of the Act'.
The proposed licence is in the south east portion of the determined Yindjibarndi area, and in the north east portion of the Yindjibarndi claim area. It is 114 kilometres north east of Tom Price, and comprises an area of approximately 190.75 square kilometres.
In accordance with standard practice, the Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allowed a period, after the closing date for lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objections by consent.
I was appointed by the then President, Mr Graeme Neate, on 19 December 2012 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 17 June 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 10 July 2013, together with a number of books about different aspects of Yindjibarndi country, and the following affidavits (which were also provided on a compact disc):
oMr Angus Mack sworn 9 July 2013
oDr Frank Rijavec sworn 11 July 2013
oMr Kyriakos Savas sworn 8 July 2013
oMr Michael Woodley sworn 12 July 2013
oMr Philip Davies sworn 10 July 2013
oMs Rosie Cheedy sworn 9 July 2013
oMr Stanley Warrie sworn 9 July 2013
Due to the size of the affidavit material, they have not been reproduced in this determination.
Statement of contentions from the grantee party and an affidavit of Mr Thomas Weaver dated and affirmed on 30 July 2013.
Contentions of the Government party dated 1 August 2013.
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 Acts
Native Title Party
The native title party affidavits
I will deal with each of the native title party affidavits in turn. As noted earlier in this decision, the affidavits have not been reproduced here as they run to 26 pages in the case of one affidavit (Mr Woodley’s), with some of the others being of a similar length. I have referred to the relevant paragraphs or sections of affidavits as needed.
Mr Woodley
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. He outlines some history between the grantee party and Yindjibarndi. 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 states (at 51) that the Winyjuwarra and Yirdimanarra Ngurrbanha Ngurra (‘home areas’) will be affected by grantee party activities.
Mr Woodley states that he and 'other members of the Yindjibarndi people 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 61). He states that they gather, hunt, camp, fish and collect artefacts and ochre. He also states they visit the following sites (outlined at 91 onwards of his affidavit):
Wundus (water courses) including Mirndurrunha Wundu - which he states are all areas of particular significance as they are the home of the water serpent (and Mirndurrunha Wundu has a dreaming song).
Mujiranha Marnda (hill) and Wundu (also referred to as Marnda 1 and Wundu 2) – the Wundu runs down to the Yule River. Mr Woodley states that Yindjibarndi people ‘would come [to the hill] to increase Dingo’s Mujira into the country’ and the hill is named after the dingo. Mr Woodley states that both the river and the hill are sites of particular significance.
Rock painting and etching sites that depict Marrga – Mr Woodley states he has recorded the locations of four such sites within the proposed licence area and states that they all appear on the DAA register.
Many hills containing Yamarraras (containers holding the physical remains and sacred belongings of Yindjibarndi ancestors) which Mr Woodley states 'are extremely important to Yindjibarndi people' and of particular significance to the native title holders.
A big creek (Bilbarranha Wundu) that runs from near Hooley station down to the Yule river which he states is 'very significant' as the Yindjibarndi people 'use the creek as a travelling path through country and as a gathering place for food, ochre and gandi (men’s business sacred stones)'.
Mr Woodley states there are 'a number of other areas and sites of particular significance within the proposed tenement as well as outside of the proposed tenement which will be impacted by the proposed tenement and exploration activities. However, I am unable to share this information' (at 92). He outlines why he feels he is unable to share this information which, in essence, is because of a breakdown in the relationship between the grantee party and the native title party and because of internal conflict within the Yindjibarndi people. Mr Woodley also outlines some of the history between the native title party, the Wirlu-Murra Yindjibarndi Aboriginal Corporation (‘WMYAC’), and the grantee party and its associated entities (hereafter referred to collectively as FMG, as relevant).
Mr Woodley makes broad claims but does not provide any specific information about disturbance to land or waters in relation to the proposed licence area. I deal with this in more detail later in this determination, under consideration of s 237(c) of the Act.
Dr Rijavec and Mr Davies
In relation to the affidavit of Dr Rijavec, a media and communications consultant for the Juluwarlu Group Aboriginal Corporation, he goes into detail for some 32 pages about Yindjibarndi community and social activities, and the history of the relationship between FMG and the Yindjibarndi people. However, there is nothing in the affidavit which relates that information to the proposed licence area.
Similarly, the affidavit of Mr Davies, administration manager and anthropologist for Juluwarlu Group Aboriginal Corporation, provides a history of that Aboriginal corporation and the native title party, and the relationship between them. He also provides information about FMG and WMYAC. He proposes a similar argument to that of Dr Rijavec, where he states (at 8.10) 'I am very concerned that the grant of the current set of exploration licences to FMG [which appears to include the proposed licence in this matter] without recourse to the right to negotiate process, will simply allow FMG to continue along the same path it has followed over the past three years'. This is the only reference to the proposed licence in the 22 pages of Mr Davies’ affidavit.
Both Mr Davies and Dr Rijavec’s affidavits do note that various agreements exist between stakeholders and corporations related to the Yindjibarndi people and FMG. However, it is not the role of the Tribunal to look behind such agreements and draw conclusions about their relevance to the proposed licence without any specific reference or particular evidence being provided in relation to the proposed licence. The affidavits of Mr Davies, Dr Rijavec and Mr Woodley do not establish a meaningful connection between those agreements, the alleged conduct of the grantee party and associated entities in relation to other mineral tenure, and the likely conduct of the grantee party in relation to the proposed licence.
Mr Savas
In relation to the affidavit of Mr Savas, it contains a history of his work in relation to Yindjibarndi people in his various roles, and his recollections of various discussions in relation to meetings held. I found nothing in those 19 pages of affidavit which directed my attention to the proposed licence area.
Mr Mack
Mr Mack provided an affidavit in his capacity as a member of the Yindjibarndi people related to the determination area and as a heritage officer for the native title party engaged through the Juluwarlu Group Aboriginal Corporation. To that extent I accept he has authority to provide evidence on behalf of the native title party in relation to the accepted objection. However, his affidavit does not provide any specific information in relation to the proposed licence area which can assist the Tribunal.
Ms Cheedy and Mr Warrie
In relation to the affidavit of Ms Cheedy, I accept she is a member of the Yindjibarndi people. I also accept that Mr Warrie is a member of the Yindjibarndi people. I accept they have authority to provide evidence on behalf of the native title party. Neither of these affidavits, however, provides evidence in relation to the proposed licence area; rather, they focus on the relationship between the native title party, WMYAC and FMG. For the same reasons as noted above, these affidavits are not particularly helpful in assisting me determine this matter.
To the extent any of the affidavits outlined at [18]-[27] above were focused on establishing a course of conduct by the grantee party which would militate against the grant of the proposed licence, then this is dealt with later in this determination under consideration of s 237(b) of the Act.
Other Literature
As noted at [10] above, the native title party also provided the Tribunal with a number of books published by the Juluwarla Group Aboriginal Corporation. No specific reference was made to these books in the native title party’s contentions, and I have found nothing in them that specifically relates to the proposed licence. As such, they have been of little assistance in this inquiry, though that is not to say similar material may not be helpful in future inquiries provided the material relates to matters to which the Tribunal may have regard and the Tribunal is given some guidance as to how the materials might be used.
The native title party contentions
In relation to s 237(a), the native title party submits that 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 that the grant of the proposed licence is likely to interfere with those activities, specifically:
the activities carried on by Yindjibarndi people through the native title party and the Juluwarlu Group Aboriginal Corporation in collecting, recording, documenting, publishing and broadcasting the language, history and culture of the Yindjibarndi;
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 submits that 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 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 that 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. In particular, 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 that 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;
delay the timeline to complete cultural mapping of the whole of Yindjibarndi country;
make impossible the collection of cultural information by Juluwarlu Group Aboriginal Corporation in areas where ministerial consent under s 18 [of the Aboriginal Heritage Act1972 (WA) (AHA) ] has been given;
progressively remove possession of the cultural and intellectual property of the Yindjibarndi people;
enable the grantee party and its heritage consultants to obtain ‘exclusive possession’ of the native title party’s cultural information; and
jeopardise the success of the Yindjibarndi #1 claim for exclusive possession in areas of unallocated Crown land that is subject to mining tenements held by the grantee party and associated entities. [I do note that there does not appear to be any unallocated crown land on the proposed licence].
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 Covenent 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 relation to the Tribunal’s task of performing the predictive assessment under s 237, the native title party contends that 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 and has demonstrated ‘a record of disregard’ for the protection of sites of particular significance to the Yindjibarndi people. Furthermore, the native title party contends that the grantee party has ‘undertaken, nurtured and encouraged, division within the Yindjibarndi community’ and has ‘undertaken and funded a deliberate and aggressive “divide and conquer” campaign’ to foster a split within the Yindjibarndi people ‘in order to achieve particular future act and heritage related outcomes.’ 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: a pastoral lease 3114/1173 (Hooley) at 73.3 per cent; two historical leases at 28.3 and 35 per cent respectively; and Crown Reserve 31429 for the conservation of flora and fauna area (managed by the WA Wildlife Authority) at 26.7 per cent.
There were no previous underlying tenements according to the DMP quick appraisal and no current live tenements. Services affected include SSM-Pyramid 4; 10 cliff/breakaway/rock ridges; four non-perennial lakes; 133 non-perennial minor water courses and 15 spring/soak/rock hole/waterholes (including Gap Pool).
The DAA registered sites list indicated four sites on the proposed licence which are:
Site ID 10810 – Idi Barana Knoll – engraving;
Site ID 10811 – Grimms Rock Hole – engraving;
Site ID 11329 – Robinson Creek – engraving; and
Site ID 12152 – Stranger’s Spring – engraving and water source
Both Government party and grantee party contentions indicate none of these sites are on the proposed licence/determination overlap area, and this has not been challenged by the native title party. It appears each of these sites fall within the proposed licence/claim overlap area. Nevertheless, I will consider these sites in the context of s 237(b), using the nexus test, as outlined at [6] above.
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 conditions as follows:
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.No interference with Geodetic Survey Station SSM - PYRAMID 4 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8.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 Conservation of Flora and Fauna Reserve 31429 (Mungaroona Range Nature Reserve).
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 Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
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.
The Government party indicate that the grantee party offered to enter into a Regional Standard Heritage Agreement with the native title party on 21 June 2012, and support that contention with a copy of the appropriate statutory declaration indicating the offer occurred on that date.
The Government party note that a portion of the overlap with the determination area is covered by Crown Reserve 31429, which wholly extinguishes native title in that portion. This also concurs with native title party contentions on this point, and I agree that my role has no application to such areas of extinguishment.
The Government party state that the affidavits provided by the native title party are generally of limited assistance because ‘it is not clear from these affidavits whether the activities of Juluwarlu are conducted on the relevant portion of the proposed tenement’ (at 26). I deal with this contention in considering the evidence under each limb of s 237 of the Act.
They also state some affidavits do not contain evidence relevant to the inquiry as they relate wholly to the Yindjibarndi #1 claim (such as the affidavit of Mr Savas, Mr Warrie, Mr Mack and Ms Cheedy). The Government party argues that to the extent they relate to the Yindjibarndi #1 claim those affidavits are irrelevant to this inquiry. I have already noted the basis on which I accept each affidavit earlier in this decision, and for the reasons outlined in [6] above, I do not consider evidence relating to areas outside of the determined area to be totally irrelevant in this matter.
Government party - s 237(a)
In relation to s 237(a), the Government party state that in relation to the Juluwarlu Group Aboriginal Corporation ‘collecting, recording, documenting, publishing and broadcasting the language, history and culture of the Yindjibarndi people’, it is not clear whether those activities are conducted over the 'relevant portion' of the proposed licence. In addition, they state 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, however, it is really that the native title party evidence in this matter is not particular about how the country on any part of the proposed licence is looked after, rather than 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 such interference. 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’ (at 48), but they say it is not clear whether these activities are done over the ‘relevant portion of the proposed tenement’ (at 48). Again, my comment is that 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 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. 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;
the grantee party has indicated some Yindjibarndi people carry out Aboriginal heritage surveys for the grantee party and that it intends to undertake such surveys ‘within the relevant portion of the proposed tenement area prior to the grantee party conducting any ground disturbing works within that area’ (at 49b);
there are no Aboriginal communities within the relevant portion of the proposed licence;
the relevant portion of the proposed licence has been subject to prior mineral exploration and is wholly overlapped by a pastoral lease and so 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 49d). [I do note however, that DMP documentation indicates no prior exploration or mining activity has occurred on the proposed licence area]; 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 affidavits 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 note that the native title party have not provided specific and clear contentions or evidence in relation to their arguments around s 18 AHA consents and their concerns regarding those and the regulatory regime, either generally or in relation to the proposed licence. 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 79). They do accept that Mujiranha Wundu and Mujirahna Marndu fall within the determination area but contend that other sites either fall outside of the proposed licence area altogether or are located where native title is extinguished.
The Government party state that Mr Woodley says the Mujiranha Wundu water course is ‘very significant’ but that he has not provided any explanation as to how it is significant. They state sufficient evidence has not been provided to establish that it is a site of particular significance. Similarly, in relation to Mujiranha Marndu, they state insufficient evidence has been provided to establish that is a site of particular significance.
The Government party state that overall, interference with sites or areas on the proposed licence is unlikely because:
It has been subject to prior mineral exploration and a pastoral lease [although as noted above, no prior mineral activity is recorded by DMP]
Exploration activities will be low impact and non intrusive
The grantee party has agreed to execute a RSHA
The grantee party has internal processes and procedures to avoid interference with Aboriginal sites
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)
the proposed licence is overlapped by a pastoral lease
the proposed licence area does not have particular characteristics that would be likely to result in major disturbance as per s 237(c)
Grantee Party
The grantee party accepts that land or waters outside the proposed licence/determination overlap can be taken into account but argues there must be a clear nexus between the activities and the land or waters concerned (as per Silver at 35). The grantee party states that the clear nexus is not established in this case. In this respect I agree with the grantee party, as outlined in more detail in this determination.
The grantee party also addresses the native title party’s contention that the presumption of regularity should not apply in this case. The grantee party notes the native title party relies upon affidavits and various paragraphs within those affidavits to support the submission that the presumption of regularity should not apply in this case. The grantee party states that an absence of monitoring cannot be equated with non-compliance, that mining companies are subject to ‘many regulatory regimes’ and that these contribute to the ‘validity of a presumption of regularity’ (at 8.3). The grantee party also notes that the DAA has conducted an audit of the grantee’s compliance with conditions imposed by the Minister in July 2013, and argues that it does not have a history of non-compliance with the regulatory regime. The grantee party also states that in relation to a 2007 bulldozing incident referred to in Mr Woodley’s affidavit (at 11), there is no evidence there was non-compliance with a regulatory regime.
I accept that on the basis of the information provided by all parties, I could not see clear support for actual non-compliance of a regulatory regime on the part of the grantee party. I deal with this in more detail further below.
Mr Weaver’s affidavit is provided in support of the grantee party’s contentions. For example, he outlines that ‘FMG has adopted a Ground Disturbance Permit Procedure’ (at 9). A copy of the procedure is attached to his affidavit and he states ‘all FMG personnel and contractors are required to comply’ with guidelines for the management of Aboriginal cultural heritage (at 10), and those guidelines are also attached to the affidavit. He states that FMG would enter into the RSHA with the native title party, and also outlines their own geographic information system which is used ‘to ensure that FMG’s Heritage Obligations are satisfied’ (at 14). He confirms ‘it is the policy of FMG not to undertake ground disturbing activities without a heritage survey having first been undertaken’ (at 17) and this procedure is outlined under the ground disturbance permit procedure.
He also attaches a proposed programme of work and outlines that ‘FMG regularly conducts Aboriginal heritage surveys with the participation of the Yindjibarndi people’ (at 19). He states that since 2012, ‘Yindjibarndi people have participated in over 70 Aboriginal heritage surveys...over parts of the Yindjibarndi #1 native title claim’ and he lists the names of some of the 50 Yindjibarndi people who have participated (at 20(1-2)). He states ‘I am aware that some Yindjibarndi people do not wish to participate in Aboriginal heritage surveys over mining tenements held by FMG’ (at 22). He states that FMG has had no response to its attempt to clarify who those people are.
In relation the proposed method of exploration and exploration programme attached to Mr Weaver’s affidavit, it appears that in year one the activities will include:
a literature search;
aerial photography;
geological mapping and rockchip sampling;
interpretation of date sets; and
gridding, access and Aboriginal heritage clearance.
That work will ‘identify and have targets located ready for further testing by drilling. Succeeding phases, which may include the activities [noted in the paragraph above], will depend on results obtained’. Those succeeding phases include activities such as: reverse circulation and diamond drilling; interpretation, resource estimation and technical reporting; metallurgical testing. There is no information about subsequent years. As such, I assume the grantee party may exercise the full suite of rights available to it under s 66 of the Mining Act 1978 (WA).
Grantee party - s 237(a)
In relation to s 237(a) of the Act, the grantee party states their activities are not likely to interfere with community activities because collecting, recording, documenting, publishing and broadcasting the language, history and culture of Yindjibarndi occur regularly and such practices are likely to continue in the future. The grantee party argues that ‘given the unknown frequency and unknown intensity [of such activities]..., it cannot be said that any interference will arise from the grant of the Inquiry Tenement’ (at 9.3(3)).
In relation to looking after and managing Yindjibarndi country, sites and areas of particular significance, the grantee party states ‘it is difficult to determine how these activities manifest themselves' in relation to the proposed licence (9.4). For example, the grantee party states that the frequency of visits to places shown on the map (annexed to Mr Woodley's affidavit), and the frequency of looking after and managing Yindjibarndi country and sites, is not detailed by the native title party, in relation to the proposed licence.
In relation to activities ‘which 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...’ (at 9.2(4)), the grantee party states there is nothing in the native title party evidence to suggest that such activity occurs on the proposed licence or places with a nexus to that area.
Grantee party – s 237(b)
In relation to s 237(b), the grantee party states Mr Woodley has indicated he does not know the precise location of the ‘many sites of particular significance’ within and outside of the proposed licence area. In addition, the grantee party argues the fact that a site may be the birth place of Ms Allen is of little relevance to this inquiry and that she has not provided any evidence in this matter. The grantee party refers to Member O’Dea’s statement in Emergent at [45] and states that the native title party has not shown areas to be sites of particular significance or to possess a nexus with the proposed licence/determination area to warrant their consideration.
The grantee party also states, ‘any exploration activities which the grantee party will conduct outside the affected area [the proposed licence/determination overlap] lessens the likelihood of any interference arising from the exploration activities which the grantee party will conduct within the affected area’ (at 10.10(2)) [emphasis in original]. The grantee party spend some time on this argument and conclude that ‘the proposed grant of exploration rights outside the affected area lessens rather than enhances any nexus between places outside the affected area and the affected area’ (at 10.10(2)). I think this is largely a hypothetical argument which is difficult to apply in practice without knowing the precise areas or activities the grantee party will be canvassing in the proposed licence.
Grantee party contentions then refer to Mr Weaver’s affidavit as supporting that the activities of the grantee party will be unlikely to interfere with areas or sites of particular significance because:
The grantee party understands its obligations under the AHA
The grantee party has adopted processes to avoid interference with such sites
The grantee party subscribes to the Guidelines for Consultation with Indigenous People by Mineral Explorers
The grantee party’s policy is not to undertake ground disturbing activities without a heritage survey having first been undertaken.
Grantee party - s 237(c)
In relation to s 237(c), the grantee party states that the native title party does not point to any particular physical disturbance, and refers to Geotech at [44] where the Tribunal previously concluded that physical disturbance must be established as a precondition to a finding that major disturbance is likely to occur.
The grantee party states that the grant of the proposed licence is not likely to involve major disturbance due to:
the State’s legislative regime;
the presumption of regularity;
the endorsements and conditions to be applied by the Government party;
the pastoral lease which has and will continue to subject the area to disturbance; and
there are no sensitive topographical, geological or environmental factors on the proposed licence (at 11.4).
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 have been outlined in terms of its initial exploration program, and its general approach to its activities and its intentions are outlined at [60]-[62] and [68].
The native title party’s contentions and evidence in relation to s 237(a) are outlined at [19] and [29]-[30]. The native title party has provided much evidence and commentary regarding the Yindjibarndi’s relationship with the grantee party and its associated entities. While this may also be taken as evidence regarding the grantee party’s intentions, as stated earlier in this determination I could find nothing in the evidence about the grantee party’s alleged conduct in previous matters that would lead me to conclude adversely in relation to their conduct in this matter. This is also dealt with at [88]-[90] of this determination.
The Government party contentions in relation to s 237(a) are outlined at [47]-[49].
Bearing in mind the material discussed in those sections 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 pastoral lease. While there is no specific evidence of the degree of such interference this lease may have caused, the Tribunal is entitled, as part of the overall context, to have regard to the fact that previous pastoral activities will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]).
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 grantee party’s evidence and intentions in relation to s 237(b) are outlined at [57]-[62] and [66]-[68].
The native title party evidence and contentions in relation to s 237(b) are outlined at [18]-[20] and [31]-[32].
The Government party contentions are outlined at [50]-[55]. Even if there were sites of particular significance within the proposed licence, the Government party states that it is unlikely they would be interfered with, as outlined at [54].
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 to the native title party, and those which are also important to the native title party. The question for this Tribunal is whether, through the native title party representatives and the information and evidence provided, it has been made out that any of the sites referred to in this matter are sites of particular significance. Mr Woodley refers to sites including: carvings; paintings; Mirndumunha Wundu; many hills with ancestor remains (including Mirndumunha Marnda); rockholes; and Bilbarranha Wundu (the creek that is said to originate near Hooley Station. Mr Woodley's is the only clear evidence put forward in the affidavits in relation to such sites.
Mr Woodley states there are other sites which he cannot identify. I understand that some sites are particularly sensitive to a native title party, however, there are mechanisms which can be put in place in objection application determinations (for example, non disclosure orders) to limit the dissemination of such information, rather than not providing it at all. The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]). In this matter, there simply is insufficient evidence for me to conclude that these sites referred to by Mr Woodley are of particular significance.
In relation to the Mujiranha Wundu and the hill associated with the Dingo Mujirahna Marnda, the Government party and grantee party argue that these are not sites of particular significance. However, I do accept these are sites of particular significance, as they have been identified as to their location, their significance in themselves, and their significance in relation to other sites nearby and other sites of a similar nature. In relation to the other sites identified, and those which have not been identified, there is insufficient evidence in relation to how they are of particular significance to the native title party. I accept they are important to the native title party in terms of their matrix of activities and their approach to country, but in terms of an analysis of s 237(b) of the Act, I could not say they are of particular significance under the meaning of that sub-section of the Act.
In relation to whether sites of particular significance are likely to be interfered with, the native title party have provided a plethora of evidence in relation to alleged grantee party activities which the native title party suggests indicates a course of conduct which shows little regard for native title party sites and heritage issues. However, examining all of this information carefully, including the various letters and reports, I found no evidence which indicated the grantee party had deliberately ignored or failed to comply with the State's regulatory regime. I have already dealt with the question of the effectiveness of the State's regulatory regime at [36] above.
Because of the complexity of this matter, and the strong nature of the feelings which were outlined in the native title party evidence in relation to the grantee party, I turn to previous Tribunal decisions for assistance in further assessing the information and evidence provided by the native title party. In Smirke at [44] and [67] the test outlined by the Tribunal was whether the assumed behaviour of the grantee party had been so disrespectful of the law making it improbable that in future it may not comply with its obligations. In Emergent (at [28]) the Tribunal asked whether the evidence demonstrates that the grantee party is indifferent to its obligations under the AHA and relevant agreements.
Applying both tests in turn to the information provided by the native title party, including the affidavit evidence, I conclude that the evidence about FMG’s past conduct generally, and the grantee party past conduct specifically, does not establish that interference is more likely to occur in this matter compared with any other matter. I also note the steps FMG has taken to introduce protocols and procedures around ground disturbance.
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 sites of particular significance identified, in terms of s 237(b) of the Act.
The areas of the Mujiranha Wundu and the Mujirahna Marndu have been identified by Mr Woodley on a map annexed to his affidavit, and the grantee party is on notice of those areas and their significance to the native title party. The grantee party will be conducting exploration, rather than mining activities on the land, and by their nature, exploration activities are relatively low impact. The grantee party has offered an RSHA to the native title party and, has undertaken that they will not undertake ground disturbing activities until a heritage survey has been conducted. The grantee party have also outlined their site protection plans. As Member O’Dea noted in Allarrow (at [36]), a matter where the expedited procedure does apply can be distinguished from a matter in which the expedited procedure does not apply where ‘the grantee party had gone to considerable lengths to explain precisely how it would consult with the native title party in order to ensure that any difficulties that arose in relation to potential interference with sites of particular significance that they had identified would be dealt with’. In my opinion, this is such a matter.
The native title party will likely be disappointed with the conclusion I am going to make in relation to s 237(b) of the Act, given the quantity of evidence which has been provided in this matter. However, a consideration must be made of the quality of the evidence in relation to the statutory requirements of the Act, and in this matter, I find the evidence does not support a conclusion that there is a real risk of interference with sites of particular significance by the grant of this proposed licence.
Major disturbance to land and waters (s 237(c))
The grantee party contentions and evidence in relation to s 237(c) are outlined at [69]-[70] above.
The Government party submissions for this sub section are outlined at [56] above.
The native title party’s submissions in relation to s 237(c) are outlined at [21] and [33]-[35] 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 that this matter falls into the category of exceptions. The native title party contentions on s 237(c) are very brief and 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 108), '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 111) also outline that the affidavits of Mr Woodley and Dr Rijavec support conclusions that the grant of the proposed licence will prevent the native title party from: 'freely manifest[ing] 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 [33] 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 relation to the remainder of the points raised by the native title party addressing s 237(c) of the Act (as outlined at [33] of this determination), it is not clear how the grant of the proposed licence would lead to those effects, particularly given the activities the grantee party will undertake are exploration activities, and they will not give the grantee party exclusive possession over the area.
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 [34] 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 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 E47/2574 to FMG Pilbara Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
23 October 2013
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