Albert Little and Others on behalf of the Badimia People/Western Australia/Lake Moore Gypsum Pty Ltd
[2010] NNTTA 143
•10 September 2010
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of the Badimia People/Western Australia/Lake Moore Gypsum Pty Ltd, [2010] NNTTA 143 (10 September 2010)
Application No: WO09/875
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Albert Little and Others on behalf of the Badimia People – (WC96/98) (native title party)
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The State of Western Australia (Government party)
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Lake Moore Gypsum Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Perth
Date: 10 September 2010
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 151(2), 237
Mining Act 1978 (WA), ss 63, 20(5)
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Cases:Albert Little and Others on behalf of the Badimia People/Western Australia/Giralia Resources NL, NNTT WO01/183, [2002] NNTTA 26 (8 March 2002), Hon C J Sumner[1]
[1] Throughout this determination, reference is made, variously, to ‘Hon C J Sumner’; ‘Deputy President Sumner’; and/or ‘DP Sumner’. Such references are to one and the same person, and are to be so read.
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea[2]
[2] References throughout this determination to ‘Daniel O’Dea’ are to be read as a reference to ‘member O’Dea’, a duly appointed member of the National Native Title Tribunal (‘the Tribunal’).
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso[3]
[3] References, variously, in this determination to ‘John Sosso’ and/or to ‘Deputy President Sosso’ are references to one in the same person, and are to be so read.
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Solicitor for the
Native title party: Mr Akmal Raea Khan, Yamatji Marlpa Aboriginal Corporation
Representative for the
native title party: Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representative for the
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative for the
grantee party: Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 15 July 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E59/1565 (‘the proposed licence’) to Lake Moore Gypsum Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 390.28 square kilometres located 46 kilometres south of Paynes Find in the Shire of Dalwallinu/Mount Marshall/Yalgoo. It is overlapped at 100 per cent by the registered claim of the Badimia People, (WC96/98 - registered from 4 October 1996) (’native title party’).
On 16 November 2009, the native title party made an expedited procedure objection application to the Tribunal.
On 30 November 2009, Deputy President Sumner was appointed member for the purposes of the conduct of the Inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At an adjourned status conference on 7 April, following a number of conferences and one request to extend the time required for compliance with directions in an attempt to negotiate an agreement, the representative for the native title party requested the matter proceed to inquiry on the basis of instructions obtained by the native title party.
The Government party lodged its evidence and contentions on 5 and 10 March 2010. Following two further requests to amend compliance dates, the native title party filed a statement of contentions on 11 June 2010. Native title party supporting evidence, lodged on 19 July 2010, included the signed affidavits of Ms Coral Mary Brockman, Mr Daryl Fogarty and Mr Akmal Raea Gulab Dhan, the signed witness statement of Mr Graham Fogarty and Mr Wayne Fogarty and an article from the American Museum Novitates (published by the American Museum of Natural History, New York, no 2327, 21 June 1968) entitled ‘Kunturu, an Aboriginal Sacred Site on Lake Moore, Western Australia’ by Richard A Gould and Elizabeth B Gould. The grantee party lodged a statement of contentions on 9 June 2010 and a further statement of contentions on 26 July 2010, substantially similar to that which was lodged in June.
On 21 July 2010, Deputy President Sosso was appointed by DP Sumner as the member for the purposes of the conduct of the Inquiry; however, to spread the workload of Tribunal members, on 31 August 2010, I was appointed by DP Sumner as the member for the purposes of the conduct of the Inquiry.
At an adjourned Listing Hearing on 30 July 2010, the native title party representative sought additional time to provide submissions to the Tribunal, including gender specific evidence which was to be gathered at a working group meeting on 3 August 2010. The Tribunal afforded the native title party until 23 August 2010, with a right of reply by the Government party and grantee party of 30 August 2010. Parties agreed that the matter could be determined ‘on the papers’ (i.e., without holding a further hearing) following these dates. I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).
On 23 August 2010, the native title party advised the Tribunal that it was unable to gather any further contentions and evidence.
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR (now DMP), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal Sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
Evidence in Relation to the Proposed Act
Government party documentation establishes the following underlying land tenure on the area of the proposed licence as follows:
Vacant Crown Land (totaling 86.6 per cent overlap);
Mouroubra Pastoral Lease 3114/427 (9.8 per cent overlap);
Maranalgo Pastoral Lease 3114/1250 (3.5 per cent overlap); and
Pullagaroo Pastoral Lease 3114/467 (0.1 per cent overlap).
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licence.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals three registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) overlapping the area of the proposed licence:
Site ID 5348 Lake Moore Pathway (man-made structure – permanent register, open access, no restriction), slightly overlapping the proposed licence;
Site ID 5938 Mardarburdar Hill (man-made structure, artefacts/scatter, camp, rock shelter – permanent register, open access, no restriction), wholly within the proposed licence; and
Site ID 21473 Lake Moore (ceremonial, mythological, artefacts/scatter, historical – lodged register, open access, no restriction), significantly within the proposed licence.
Government party documentation indicates one active exploration licence (E59/1233), held by the grantee party, which encroaches on the proposed licence by 96 per cent. One active miscellaneous licence and one active mining lease also overlap the proposed licence at no more than 2 per cent. Seven exploration licences, with varying encroachments, were active over the proposed licence variously from 1997 to early 2010. One temporary reserve was active from 1976 to 1977.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4). Additional conditions imposed require that the pastoral lessee is notified of the grant of the licence and of certain exploration activities (conditions 5-6). A further condition restricts interference and mining with Geodetic Survey Station SSM-NINGHAN 8 (condition 7).
The following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act1972 and any Regulations thereunder.
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The grant of this licence does not include the land the subject of prior Exploration Licence 59/939. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
The Quick Appraisal provided by the Government party indicates that exploration licence E59/939 expired in January 2010 and the third endorsement referenced above is no longer relevant.
In addition, the Government party proposes to impose a condition which allows the native title party, within ninety days of the grant of the licence, to request the grantee party execute a Regional Standard Heritage Agreement, within thirty days of the request, of the type ‘endorsed by peak industry groups and the Yamatji Land and Sea Council’ in favour of the Badimia People.
The grantee party provided two Statements of Contentions signed by Mr Shannon McMahon of McMahon McMahon Mining Title Services Pty Ltd on behalf of his clients. The proposed licence area is prospective for the discovery of gypsum. The grantee party sets out its intentions to comply with all relevant legislative requirements, including the Aboriginal heritage and mining regimes.
Evidence provided by the native title party
The submissions of the native title party include the signed affidavits of Mr Daryl Fogarty (‘DF Aff’) and Ms Coral Mary Brockman (‘CB Aff’), both affirmed on 16 July 2010, and made in the following terms:
‘AFFIDAVIT OF DARYL FOGERDY (sic)
I, Daryl James Fogarty of 8 South Street, Dalwallinu, in the State of Western Australia, Sheerer, do sincerely declared and affirm as follows:
1. I am a member of the Badimia Native Title claimant group. I am recognised under the traditional Badimia laws as speaking for and knowing the sites and traditional stories on the tenement area.
2. I have been shown a map of the Tenement E59/1565 by my lawyers from the Yamatji Land & Sea Council, a copy of which is annexed and marked “A”. I am authorised to speak for the area of Badimia country affected by the exploration tenement above and know the area quite well.
KNOWLEDGE OF THE TENEMENT AREA
3. I am familiar with the Tenement area and have been handed down the custodial right to speak for and the responsibility to protect the Lake Moore area (“the right to speak for and the responsibility to protect the Lake Moore area (“the country”). The whole Tenement area is very important as it is within the Lake Moore area. This area is of special importance to the Badimia people. There are many important sites that can be found in the country such as caves, ceremonial sites, camping grounds, initiation sites, Lake Moore pathway and landmarks which have dreaming stories that originate from Lake Moore through to the Pilbara and Alice Springs.
4. I was taught the importance of the country and the Tenement area since five or six years of age, from my father and uncles. They taught me the importance of all the country specifically Mardarburdar Hill and the importance of Lake Moore.
5. I was taught of many important sites and told to look after the country, which includes the tenement area. My family has traditional responsibility to maintain the heritage of this area.
6. There is a place called Kunturu which is very close to the tenement area and could possibly intersect with the tenement area as there is another sacred site that joins Kunturu.
KUNTURU
7. Kunturu is a very important place where the old people used to have initiation ceremonies, camping grounds and trading with other Aboriginal people from the Pilbara to the East. Badimia people would invite people from all over to do law business at this place, to hold ceremonies and trade. When people came for law business they would camp all along Lake Moore and in the Tenement area.
8. There is a snake that protects the whole area, we call him the “Bimara”. The Bimara lives around there and created the water in the Lake. You should never disturb the Bimara Spirit or bad things could happen to you. If we go to that country we have to throw sand in the water holes and let him know we are there. We then feel safe and can be in that country. Bimara knows we are Badimia and will protect us. Other people shouldn’t go there without the right Badimia people to guide them.
LAKE MOORE PATHWAY
9. There is a walkway out there that is close to or goes from Kunturu to Mardarburdar Hill. It was made by Badimia ancestors and is the shortest and safest way across Lake Moore. Aboriginals from all over used to use it to come and trade there. You can see the path way on Mardarburdar Hill look out, when the moon or sun is right. This area is sacred and must not be touched. It is where our ancestors gathered with other tribes for all sorts of law business.
MARDARBURDAR HILL
10. At Mardarburdar Hill you can look out and see the pathway but only sometimes when the moon or sun is right. The old people could also see people on the path. It is a very sacred area which is given to us to look after.
11. This would be a place that the old people used to camp and wait for the right time to cross Lake Moore in summer. The ground of the dry Lake would get real hot from the sun. If they crossed at the wrong time they could burn themselves from the dry salty ground breaking through. Sometime it would be to glary to see the pathway across the Lake and that’s why they had to wait at Mardarburdar Hill.
OTHER SIGNIFICANT SITES
12. Other significant sites that I know of in the area are ceremonial grounds, initiation grounds, mythological sites and camping grounds. You’ve also got rock chippings, spears, artefacts and scatterings close to all that area.
13. I know near Warrdagga Hill there is a sacred cave where men used to hold initiation ceremonies. No women are allowed there. Another family is responsible for this site. I don’t have the right to speak for it.
14. There is a women’s initiation site to the East of Kunturu. They used to clean that area and grow mushrooms. I was told by my Father that the Mushrooms used to taste like bread. All people around that area have heard of this site.
15. For Badimia this area is very important. It’s so significant because there are so many sacred sites around this country. We are draw to this area, if you’re not from this area then you wouldn’t know. If you go there without the right Badimia, we could get sick, you need the right guidance and knowledge of the sites to protect you from harm.
EFFECT OF EXPLORATION ON SITES
16. The Lake Moore area is one that is very important to me, my family and the Badimia people. It is a place that me and my family have been given as custodians to look after from my Father. There are so many important sites out there that I would hate for mining companies to just come and destroy our heritage.
17. As this area has so many important sites, I would expect at the least for the mining companies to negotiate with the right Badimia people that know this country and have been brought up around it. It is a part of me and I have been handed down the knowledge and right to speak for it. I don’t want Lake Moore area to be touched but if it is, the right Badimia people should be involved in guiding the Mining companies and having a right to say what shouldn’t be touched.
18. Kunturu looks to be close to the Tenement area and the Lake Moore Pathway. We can’t have somebody come destroy these sites, they are very important to us. My family are custodians to this area and our old people made that area with their own hands. The spirits around that area could get upset and affect us.
19. If there is drilling around that country the Bimara spirit could get upset and affect Badimia people. Our families could get affected by this any disturbance to the country, especially in Lake Moore area, as it is so significant.
20. We also believe and know that there are lots of wudajis [spirit people] that live within the Lake Moore area. They live in the hills and the caves of that country area. These people are little hairy men or spirits. If wudajis get upset then they upset Badimia people and they will make you get sick. These wudajis could come and hurt us.
21. That area should be protected. They should have more respect relocate artefacts and sites. What’s left for us, or the younger generation if we don’t have these sites? There’ll be nothing left for us soon if they just rip up the country.
22. There should be negotiations to protect these sites. They’re part of our history and culture and if the area is desecretated they’ll be nothing for the next generation. The country is from our ancestors, it is our history and origin all documented on country. It’s not written in black and white on paper but it’s documented at our sites.’
‘AFFIDAVIT OF Coral Mary Brockman
I, Coral May Brockman of 2 Kruger Close, Karratha, in the State of Western Australia, Teacher, do sincerely declare and affirm as follows:
1. I am a member of the Badimia Native title claimant group. I am recognised under the traditional Badimia laws as speaking for and knowing the sites and traditional stories of the tenement area.
2. I have been shown a map of the Tenement E59/1565 by my lawyers from the Yamatji Land & Sea council, a copy of which is annexed and marked “A”. I know of the tenement area and visit this area every year.
KNOWLEDGE OF THE TENEMENT AREA
3. My family are the true descendents of the Badimia country in which the Tenement is located (“the country”). I was taught about the stories from the country by my mother and other Badimia elders. The whole Tenement area is very important as it is within the Lake Moore area. This area is of special importance to the Badimia people. There are many important sites in this area which includes burial grounds, birthing site, caves, ceremonial sites, camping grounds, hunting grounds and landmarks which have dreaming stories that start at Lake Moore and go through to the Pilbara Jiggalong area.
4. I started learning about the importance of the country including areas within this Tenement from about 4 or 5 years of age. These lessons were passed on by my mother and my grandparents, aunties and uncles. They all taught me the importance of all the country from Warrdagga Hill to Mount Gibson and the significance of Lake Moore. I have basically grown up in that area as Goodinow Station was owned by my great grandfather.
Current Community Activity
5. My family and I visit the area every year, sometimes twice a year or more, whenever we get the opportunity. It is our tradition to do this, my mother and grandmother emphasized the importance of doing this. Last year there was Sixty Two (62) of our family out the country and Sixty Seven (67) of us this year. We go check on sacred sites that my family has traditional responsibility over. We camp out there and reconnect with the country. It is where we feel safe and can connect with our ancestors.
6. My grandmother went through the law in this area and has handed down these stories to my mother and now to me. I was handed down the custodial right to look after the country with my children and their children. We look after the sacred sites within the lake Moore area and go hunting for our traditional foods and medicine. That’s why we visit this area every year.
7. There several areas within the Tenement that are good hunting. We teach our younger people how to hunt out there and show them how to catch yungigi [goanna], marlu [kangaroo] and kalyay [emu]. This area is important for Badimia people because it is a place where we can find our traditional food. The Lake Moore area is used as a hunting and camping area and a place to collect bush foods, especially by my family.
8. The yungigi, marlu, kalaya is used in ceremonies where we mix the oil from the fat with the ochre which gives it that texture to be used as paint. The fat from these animals can also be mixed with the oil from the mallee gum tree and used as a healing balm, for skin problems.
9. Within the Tenements there are Guradah which are a type of tree. These are very important for Badimia people and have lots of uses. The seeds can be crushed to make a damper or straight in the roots you can find bardies, it’s a very good medicine bush. You can use it for internal heeling.
10. There is kuandolg [medicine fruit tree] that has fruit that can be used as a medicine to fix internal problems. We also use the kernel inside the nut from the fruit to crush and make a paste when you are sick. The nuts can also be used as healing jewellery and is used as ceremonial decoration.
11. There is the Kurar tree that we use to make boomerangs and jurna [fighting sticks] from the branches. Kurara grows in the Tenement. There are also lots of Mulgas in the tenement area which are good for making spears and boomerangs.
12. There is also very important medicine bush called gandilangu which grows in the Tenement area. These are very important for Badimia people. It’s a very good medicine bush which has lots of uses. White people use this to combat cancer. You can boil the bark and bath people in it. It kills germs and will help people with scabies. If you have a tooth ache you can boil up the leaves and chew on those and that will make the ache go away. If you poke part of the leaf in a wart and break it off then the wart will fall apart. You can get all of these things from the area within the Tenement. There are sandlewood trees out there that can be used for the same medical purposes.
13. I am aware of lots of sites, including ceremonial grounds and hunting grounds and sites that I spoke of above that are located within and around the Tenement. There are also places in this area where old tribal artefacts for ceremonies and law business were stored. Some of it is still there.
Warrdagga Hill
14. There is a sacred men’s cave at Warrdagga Hill. The cave was a storage area for ceremonial spears and used as an initiation area for boys becoming men. These spears were used for the initiation of boy’s in order for them to become men. It is a men’s site and women are not allowed to go there so the men in my family are responsible for the preservation of that cave.
15. There is a dreaming story about Lake Moore and Warrdagga Hill. This story is about a Snake who made Lake Moore. The snake picked up the water and took it all the way up to jiggalong. It always takes the water when it rains around that area. The snake still lives there. It’s said that the formations of the rock near Warrdagga Hill were caused by the snake turning.
16. When we visit Lake Moore we throw sand in the water areas and I speak Badimia words for water to let the snake know we are there. I believe the snake can smell us and will know we are Badimia from that country. We must do this so the snake recognizes us. We also do this so we don’t get sick from drinking and swimming in the water from the area.
OTHER SIGNIFICANT SITES
17. There is a sacred women’s site south east from Warrdagga Hill. This area was a site where women would go to give birth. This sight is a women’s sight and men are forbidden to go there, it is my responsibility to care for this sight and pass on its significance to the women in my family.
18. The old people camped all around the area, including within the Tenement. There are old camps all along Lake Moore. When people came for law business they would camp all along Lake Moore and in the Tenement area. You can see where the fires were lit at the old camping places, because you can kick up the ashes from the ground. There are rock chippings, spears, artefacts and scatterings close to all these locations.
19. Some people have gone there who aren’t the true owners of the area and have disturbed sites. This makes me feel no good. People who go there get sick, and the traditional owners get sick too. Some artefacts have been taken from these sites and put in museums without us knowing. We believe if you don’t have knowledge of or maintain our traditional area we get sick. I know my brother has cancer and he wants to go back to Lake Moore area, just like my mother did.
20. For us, there’s a story for every site. It’s a very significant area because there are so many stories at all these sites. It’s like a home to us and if it’s disturbed, the true descendents will get sick. It’ll affect us, it’s real. It’s a spiritual thing and we respect this area, just as others should with our consent and knowledge.
21. There’s a real presence within that area of the country. There’s still a strong force there. If you’re not from that country, the strong force will push you away; but it will also pull you in there if it is your country. That’s why to this day me and my family go out there. We want all that area properly conserved for future generations. We have been passed the knowledge of the country and want to pass it through to our children, so they can pass it to their children. Without this area we don’t have anywhere to go, we don’t have anywhere to maintain our spirituality.
22. My family still visits the Lake Moore area every year. We go back there so our younger generation know of the importance to protect these sites and experience the traditional process that we have. We stay out there for a while, it’s like being there gives us a spiritual energy and a connection to our being which that country is.
EFFECT OF EXPLORATION ON SITES
23. If Mining companies come and disturb this area we won’t be able to go out there. Nothing will be left. Lake Moore is so rich with traditional Badimia food, medicine and sacred sites. We go hunting all around that area. It’s not right for mining companies to come and take away this right from us. We look forward to going out there every April and sometimes September, its tradition.
24. If there are drilling rigs in the Tenements then we would not want to go and hunt or camp there. The kangaroos and animals would be scared away and we wouldn’t want to camp there with drill rigs going or other exploration activity. The tracks cleared for an exploration activity would knock down important plants/trees for us and it would not be safe to shoot animals with other people in the area.
25. If there are holes drilled or bush cleared within the Tenements then wudajis (spirit people) could get upset and they could cause problems for us Badimia people and upset the balance of our traditional spirituality. The people who do exploration in the tenement area out there could be affected as well. You have to be initiated people to walk around those hills. If you weren’t initiated and walked around there, this would have negative spiritual effects on them and their families – they can get sick, they can even die and this can continue through the families.
26. When we go out to Lake Moore area I’ve seen small foot prints of wudajis. They are like little hairy men. They can cause lots of problems if Aboriginal sacred areas are disturbed. They either protect us or hurt us. I don’t want wudajis to be upset as then Badimia people could be affected physically and mentally.
27. We have to be involved in showing the mining companies what they can or can’t touch. We want them to appreciate and respect our traditional ways. It’s our heritage, we are drawn to this country.
28. Mining companies come and destroy around all country, but Lake Moore area is special to Badimia people and our family but it is also important to the Mardu, Wongi and Warnmala people because the dreaming story originates from this area. It is our history, culture and identity. If mining companies destroy everything we don’t have anything left to show our young people. Once this place is destroyed you can’t get it back.’
The evidence of Mr Fogarty and Ms Brockman is uncontested and I accept it. Mr Fogarty and Ms Brockman say they are members of the Badimia native title claimant group and are recognised under traditional law as having the knowledge of sites and traditional stories in the area of the proposed licence. Although neither are one of the persons comprising the applicant and registered Badimia native title claimant, I accept that both Mr Fogarty and Ms Brockman are members of the Badimia claim group and also have the necessary authority to speak for country on behalf of Badimia.
The submissions of the native title party further include a witness statement of Mr Graham Fogarty and Mr Wayne Fogarty (‘GF & WF Stt’), signed on 16 July 2010, and made in the following terms:
‘WITNESS STATEMENT OF GRAHAM FOGARTY (sic) AND WAYNE FORGARTY (sic)
1. We are members of the Badimia people. We are recognized under the traditional Badimia laws as speaking for and knowing the sites and traditional stories of the tenement area.
2. Our family has been given the traditional right to look after the country including the tenement area E59/1565. We have been shown a map of the Tenement area above by my lawyers from Yamatji Land & Sea Council, a copy of which is annexed and marked “A”.
3. We know the country in and around the tenement area above. It is part of the country that we speak for and have knowledge of important sites.
SITES OF SIGNIFICANCE
4. We were taught about the importance of the Lake Moore area (“this area”) by my Father and he was taught by his Father. It was handed down to us to be custodians to look after this area which has many significant sites. We have been handed down by our Father the traditional responsibility to look after the Lake Moore area. It is sacred to us.
5. In the tenement area there is a Pathway that the old people used to cross. This Pathway was used by our ancestors to get to Kunturu a place where ceremonies were held and law business. It was also a place used for trading with other tribes, even from the East and good hunting area. We think Kunturu site is registered with the Department of Indigenous Affairs (“DIA”) as there was a survey done by old/late Percy George about 2003. He was a law man of this Lake Moore area.
6. We know of many sites around this area. There’s Mardarburdar Hill where the old people used to look out over. At this place you can see the pathway to Kunturu. You should also see who was coming along the Pathway. Our ancestors made this pathway and we don’t want it destroyed. You can see it when the moon or sun is right. It’s the shortest way across the Lake Moore.
7. Another close site is Warrdagga Hill. This was a place where they held men’s initiation ceremonies. Women weren’t allowed there. We know there were spears and tools around Warrdagga hill in a cave but we don’t know if they are still there. That area is traditional responsibility of another family.
8. We know there a women’s initiation site to the east of Kunturu. We don’t know much about this area but know they used to sweep the ground for mushrooms to come up. Our father told us that these mushrooms tasted like bread.
9. There are dreaming stories that originated from the Lake Moore area. It is of a snake called Bimara who made this area. He lives in the springs and slithered up North creating the Hills and taking the water all over that country.
10. When we go to the Lake Moore area we pick up sand and throw in the water to make sure he knows we are there. We say Badimia words so he can sense us. He knows we are Badimia and doesn’t harm us. We feel safe then.
11. There are lots of wudajis (spirit people) who live out there the Lake Moore area. We don’t want the wudajis to get upset because they can harm us when we around there. Our families could get sick if mining exploration goes around this sacred area.
12. We need to be consulted on any mining operations so we can guide them. We would rather no mining go around this Lake Moore area as its very important to us. We were handed down the right to keep this area safe and want to protect this country. It is where our old people were, it is where we come from.’
The evidence of Mr Graham Fogarty and Mr Wayne Fogarty is uncontested and I accept it. Both witnesses say they are members of the Badimia native title claimant group and are recognised under traditional law as having the knowledge of sites and traditional stories in the area of the proposed licence. Although neither are one of the persons comprising the applicant and registered Badimia native title claimant, I accept that Messr Graham and Wayne Fogarty are members of the Badimia claim group and also have the necessary authority to speak for country on behalf of Badimia.
The affidavit of the native title party’s representative, Mr Akmal Raea Gulab Khan, annexed supporting secondary evidence relating to Kunturu, as noted at [6], and referred to in the evidence of Mr Daryl Fogarty.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment as to whether, as a matter of fact, the grant of the tenement, and the activities undertaken pursuant to it, are likely to interfere with the community or social activities of the native title party (in the sense of there being a real chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). The notion of direct interference involves an evaluative judgment as to whether the future act is likely to be the proximate cause of the interference. The interference must be substantial, and not trivial, in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned. DP Sumner has previously found, and I confirm, that section 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The evidence establishes that some exploration activity has, and continues, to occur in the proposed licence area. While it is possible, based on the number of exploration licences granted between 1997 and 2004, that some interference with the native title party’s community or social activities may have occurred, there is no specific evidence to support a finding that there has been any appreciable effect on the native title party’s community or social activities from previous exploration and mining activity.
Ms Brockman deposes that her family still enjoy access to the area of the proposed licence at least once every year and says that sixty two members of her family visited the area of the proposed licence last year and a further sixty seven visited this year (CB Aff, para 5). The evidence of Ms Brockman is that the area of the proposed licence is used for hunting traditional foods, collecting bush tucker and medicines, camping, teaching the younger people and to look after sites. Ms Brockman notes a number of different trees found in the area of proposed licence which are used in various medicines, for ceremonies and to make spears and boomerangs (CB Aff, paras 8-12). The principle issue under s 237(a) is whether the extent of those community or social activities is such that exploration is likely to interfere with them.
The evidence provided by the remaining three deponents does not specifically address current social and community activities of the native title party. Ms Brockman’s evidence that she visits the area of the proposed licence ‘every year, sometimes twice a year or more’ (para 5), does not suggest intensive community or social activities of the native title party. There are also no established communities within or in the near vicinity of the proposed licence which might help support an inference that the community or social activities are of an intensive nature. Ms Brockman deposes that she lives in Karratha, which is a considerable distance from the proposed licence. The evidence is less persuasive than that involved in Albert Little and Others on behalf of the Badimia People/Western Australia/Giralia Resources NL, NNTT WO01/183, [2002] NNTTA 26 (8 March 2002), Hon C J Sumner at [10]-[11] in which members of the native title party visited the subject area several times a week for the purposes of conducting community and social activities. In this matter, I accept that members of the native title party access the area of the proposed licence for the purposes of camping, hunting, gathering, to teach young people about the country and to look after sites. However, the evidence provided does not support a finding that the native title party’s community or social activities are likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place as ground disturbing exploration will only occur at any one time over a small area (as mentioned in para [44], I note, specifically, the grantee party’s statement of contentions to the affect that, being exploration for gypsum, disturbance will be very limited). Government party documentation reveals the area of the proposed licence to be 390.28 square kilometres, whereas the area of the Badimia claim is approximately 36,129 square kilometres, much larger than the area of the proposed licence and thus making it less likely that exploration on the area of the proposed licence will impact on community and social activities. There will be many other areas in which the native title party would be able to conduct those community and social activities if there were to be temporary interferences as a result of the exploration activities (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso (at [43]-[44])).
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. This is such a case.
Sites of particular significance (s 237(b))
In relation to this limb of s 237, the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows there are three registered sites within the area of the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The affidavit evidence and witness statement of the native title party establishes the following facts which support a finding that the sites listed below lie within or in the vicinity of the proposed licence:
Lake Moore, described as ‘special to Badimia people and our family’ and ‘also important to the Mardu, Wongi and Warnmala people because the dreaming story originates from this area’ (CB Aff, para 28). According to the dreaming story, a snake made Lake Moore and caused the formations of the rock near Warrdagga Hill. The deponents each speak of the custom of throwing sand into the water areas to let the snake know that they are there and so as to avoid becoming sick from drinking and swimming in the water. All deponents mention wudajis, or spirit people, that live within and around Lake Moore, which either protect or hurt them, and can cause problems if sacred areas are disturbed. Ms Brockman (para 18) says there are camps from the old people all around Lake Moore when people came for law business. These old camps contain rock chippings, spears, artefacts and scatterings. Mr Daryl Fogarty (para 12) notes the presence of camping grounds, rock chippings, spears, artefacts and scatterings close to the area of the proposed licence. Lake Moore overlaps much of the proposed licence and is a registered site with open access. The DIA Register lists Lake Moore as a ceremonial, mythological, artefacts/scatter, historical, archeological deposit, meeting place, camp, hunting place, named place, natural feature and water source site. These classifications support the evidence given by the deponents.
Kunturu, a ‘very important place’ where initiation ceremonies, law business, camping and trading with other aboriginal people from the Pilbara and to the east occurred (DF Aff, para 7). Kunturu is a registered site, with closed access. It is classed as ceremonial, mythological, man-made structure, artefacts/scatter, meeting place, camp and rockshelter. Tribunal mapping establishes that Kunturu abuts the proposed licence but does not overlap it. The evidence of Mr Daryl Fogarty is corroborated by the article ‘Kunturu, an Aboriginal Sacred Site on Lake Moore, Western Australia’ submitted into evidence by the native title party. The authors visited the area in 1966 and interviewed local Indigenous people about their knowledge of the large rock alignment on the western shore of Lake Moore known as ‘“Kunturu” or “Kunturin”’ (p. 5). The article supports Mr Fogarty’s evidence and notes that Kunturu was an important ceremonial site used by Aboriginals from the area and beyond, who accessed Lake Moore via a hard trail on the lake’s bed. I believe I can safely infer that this access was made via the track known as Lake Moore Pathway.
Lake Moore Pathway, a ‘walkway out there that is close to or goes from Kunturu to Mardarburdar Hill’ (DF Aff, para 9). Mr Daryl Fogarty says it was made by Badimia ancestors and is the shortest and safest way to cross Lake Moore. Mr Fogarty says the area is ‘sacred’ and notes that Aboriginals from throughout the area would come to the Lake Moore area to trade and conduct law business. The witness statement of Messrs Graham and Wayne Fogarty also refers to a pathway used by the old people to cross to Kunturu, where ceremonies were held and law business conducted (para 5). Evidence provided by the DIA Register lists Lake Moore Pathway as a man-made structure with open access.
Mardarburdar Hill, ‘a very sacred area’ where the ‘old people used to camp and wait for the right time to cross Lake Moore in summer’ (DF Aff, paras 10-11). Messrs Graham and Wayne Fogarty say that the old people used to look out over Mardarburdar Hill and see the pathway to Kunturu (para 6). Mardarburdar Hill is a registered site with open access that is typed as man-made structure, artefacts/scatter, camp and rockshelter. Tribunal mapping places Mardarburdar Hill within the proposed licence and at the south-eastern end of Lake Moore Pathway.
A ‘sacred men’s cave’ at Warrdagga Hill which was used as an initiation area for boys and as storage for ceremonial spears (CB Aff, para 14, DF Aff, para 13). Messrs Graham and Wayne Fogarty support Ms Brockman’s evidence about Warrdagga Hill as a place where men’s initiation ceremonies were held (para 7). Tribunal mapping establishes Warrdagga Hill is located more than ten kilometres north of the proposed licence. I accept that this is a site of particular significance to the native title party but it is unlikely that it will be interfered with by exploration on the proposed licence area, given its location and the fact that the grantee party has knowledge of it. Its relevance in this case is to reinforce the evidence that the general area of the exploration licence is rich in sites which are of particular significance to the native title party.
A ‘scared women’s site’ south east from Warrdagga Hill where women used to go through initiation and give birth (CB Aff, para 17). Mr Daryl Fogarty and Messrs Graham and Wayne Fogarty mention a women’s initiation site to the east of Kunturu (DF Aff, para 14, GF & WF Stt, para 8). It is not clear if this is the same site Ms Brockman refers to. I am of the view that it most likely is, particularly given the comments of Mr Daryl Fogarty that ‘all people around that area have heard of this site’. Based on the location descriptions provided by both Ms Brockman and Mr Fogarty, it is possible this site lies within the proposed licence or in the near vicinity.
The evidence provided by the native title party in relation to sites in uncontested and I accept that it establishes the existence of a number of sites in the general area of the proposed exploration licence, most of which are, given their nature, of particular significance to the native title party.
I am satisfied that the sites identified in the native title party evidence, being Lake Moore, Kunturu, Lake Moore Pathway and Mardarburdar Hill, are all areas or sites of particular significance to the native title party. I can also safely infer that the three sites on the Register which overlap the proposed licence, Lake Moore, Lake Moore Pathway and Mardarburdar, fall into this category. I am further satisfied that the women’s site referred to in the evidence is a site of particular significance and likely falls within the area or in the near vicinity of the proposed licence. The mapping evidence also establishes that there are a number of registered sites surrounding the proposed licence and particularly to the north. Although Kunturu does not fall within the proposed licence, it appears to abut the proposed licence.
The affidavits of Ms Carol Brockman and Mr Daryl Fogarty, and witness statement of Messrs Graham and Wayne Fogarty, evidence concerns about mining companies entering the Lake Moore area without permission and consultation. Ms Brockman (para 27) deposes that the Badimia people need to be involved in showing mining companies what they can and cannot do because the ‘Lake Moore area is special to the Badimia people and our family’ as well as other Aboriginal people ‘because the dreaming story originates from this area’ (para 28). Messrs Graham and Wayne Fogarty say they need to be consulted on mining operations so as to guide mining companies and further state that they ‘would rather no mining go around this Lake Moore area as its very important to us’ (para 12). The evidence is corroboration of the fact that the areas and sites identified in the evidence are of particular significance to the native title party in accordance with their traditions.
Taking into consideration the whole of the evidence, I am satisfied that the area of the proposed licence and the surrounds, including Kunturu which appears to abut the proposed licence, is rich in sites of particular significance to the native title party in accordance with their traditions.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach, which must be followed, that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein).
The grantee party indicates in the two statements of contentions lodged with the Tribunal that it will carry out its work program in compliance with all legislative requirements including the AHA and Mining Act and will comply with all tenement conditions imposed by the Government party. The grantee party further contends that it has never been prosecuted under or accused of breaching the AHA.
The grantee party also indicates the following:
Preparedness to enter into a heritage protection agreement with the native title party based on the Regional Standard Heritage Agreement;
Awareness of registered sites within the proposed licence and belief that the current regulatory regime will provide adequate protection;
Planned exploration for the proposed licence includes soil sampling, broad spaced hand auger drilling and mapping. The grantee party says gypsum is a ‘bulk commodity’ and if not found at surface level, is not economical. As such, the grantee party states majority of work at the exploration phase will be non-ground disturbing; and
The proposed exploration activities will be usual activities associated with exploration licences including conducting field reconnaissance and geological mapping, surface geophysics, low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling and survey. The work that is ground disturbing will be broad based and, the grantee party says, would only be considered minor disturbance.
As noted, the grantee party says that as the exploration is for gypsum, which is a ‘bulk commodity’ and only economical if found at surface level, majority of work at the exploration phase will be non-ground disturbing for the purposes of confirming a resource. If a resource is established, the grantee party will need to apply for a mining lease which will be subject to the full right to negotiate provisions of the Act. While the rights given under an exploration licence may not be exercised to their fullest extent, the evidence establishes that there may be ground disturbing activity with the potential to interfere with significant Aboriginal sites.
There is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA and its contentions reveal an awareness of its obligations in this respect. The fact that the grantee party was prepared to enter into a heritage agreement is a relevant factor which indicates the grantee party’s awareness of the need to avoid interference with sites of particular significance.
Weighing all these factors, and particularly the nature and extent of the sites of particular significance which have been identified and that the area of the proposed licence is site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38). While the grantee party indicates awareness of registered sites in the proposed licence areas, and is now on notice that other sites may exist, the exact location and extent of some of those sites is unknown and unless there is close liaison between the native title party and grantee party through negotiation and agreement, I find there is a real risk of interference with them. This is a case where the site rich nature of the proposed licence area means there is a real risk of interference, despite the intentions of the grantee party to comply with the site protection regime based on the AHA, i.e., it is a case where the regulatory regime is not adequate to prevent the likelihood of interference with sites of particular significance to the native title party in accordance with their traditions.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E59/1565 to Lake Moore Gypsum Pty Ltd is not an act attracting the expedited procedure.
Neville MacPherson
Member
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