Albert Little & Ors on behalf of Badimia/Western Australia/Magnetic Resources Nl
[2011] NNTTA 108
•22 June 2011
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little & Ors on behalf of Badimia/Western Australia/Magnetic Resources NL,
[2011] NNTTA 108 (22 June 2011)
Application No: WO10/657
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Albert Little & Ors on behalf of Badimia (WC96/98) (Applicant, 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: Helen Shurven, Member
Place: Perth
Date: 22 June 2011
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109, 146, 151, 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA) ss 17, 18
Cases: Bardi and Jawi Niimidiman Aboriginal Corporation on behalf of its members/Western Australia/Kimberley Quarry Pty Ltd [2009] NNTTA 153
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined 2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd [2010] NNTTA 70
Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15
Hughes v State of Western Australia and Another (2003) 182 FLR 362; [2003] NNTTA 69
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Smith and Others v CRA Exploration Pty Ltd and Others (1996) 133 FLR 251; [1996] NNTTA 32
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representative of the
native title party: Ms Alissa Lovering, Yamatji Land and Sea Council
Representatives of the Mr Domnhall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party: Ms Nerida O’Brien, McMahon Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 13 January 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E70/3588 (‘the proposed licence’) to Lake Moore Gypsum Pty Ltd (‘the grantee party’), and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence is an area of 290.45 square kilometres located 87 kilometres north of Bencubbin within the Shires of Dalwallinu, Koorda and Mount Marshall, and is 23.10 per cent within the registered native title claim of the Badimia People (WC96/98 registered from 4 October 1996). No other native title claims overlap the proposed licences.
On 13 May 2010, Albert Little & Others on behalf of the Badimia People (WC96/98) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
In accordance with standard practice, the Tribunal gave directions which include parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a 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. Following several requests to vary compliance dates, the final directions made by the Hon C J Sumner included the request that the Tribunal be provided with contentions and documents of the native title party by 10 January 2011 and of the grantee party by 17 January 2011. The Government party had complied on 16 September 2010 and supporting information from the Department of Mines and Petroleum (‘DMP’) was lodged on 2 September 2010.
A final copy of the Statement of Contentions of the native title party was lodged on 3 February 2011. A signed and unsworn witness statement of Darryl James Fogarty was lodged on 9 February 2011. A signed and sworn Affidavit of Coral Mary Brockman was lodged on 12 January 2011.
The grantee party Statement of Contentions was lodged on 17 January 2011.
At the listing hearing on 17 February 2011, all parties agreed that the inquiry can be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act).
On 17 May 2011, I was appointed by the Hon C J Sumner as the Member for the purposes of conducting the inquiry.
In relation to accepting the signed but unsworn witness statement of Mr Fogarty, the Tribunal is not bound by the rules of evidence (s 109(3) of the Act). In Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15, Hon C J Sumner (at [18]-[28]) summarised the Tribunal’s practice with respect to statements not in affidavit form. The Tribunal held that evidence relating to the matters in s 237 are essential to the making of a determination, and that the best evidence relating to the matters will generally come from the native title holders themselves. While it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is not contested. I note also the native title party compliance was out of time, and take into account the logistical difficulties that can be present in lodging documents and obtaining witness statements and signatures. Applying these principles to the present case, I am satisfied that the native title party evidence in general, and Mr Fogarty’s statement in particular, is admissible and material, accept it, and will deal with it and the documents and evidence provided by all parties for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Hughes v State of Western Australia and Another (2003) 182 FLR 362; [2003] NNTTA 69).
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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v 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 Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977) (‘Little’). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at [588]-[589] where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
Evidence in relation to the proposed act
Government party and DMP documents include: a statement of contentions; a tengraph plan with topographical detail tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence site; a report and plan from the DIA Sites Register; a copy of the tenement application and the proposed endorsements and conditions of grant; an instrument of licence and the first schedule listing land included and excluded from the grant; and a tengraph Quick Appraisal.
A map prepared by the Tribunal’s geospatial services on 9 May 2011 shows that there are no Aboriginal communities within the proposed licence site.
DIA documents provided by the Government party reveals the Lake Moore heritage site (ID 21473, open access, no restriction, ceremonial, mythological, artefacts/scatter, historical) is within almost the entire 23.10 per cent portion of the proposed licence which overlaps with the native title party claim. This overlap is approximately the northern most 8 kilometres of the approximately 46 kilometre long proposed licence. DIA documents also show the site numbered 623 is within the proposed licence, but not within the 23.10 per cent overlap portion.
Government party documents establish the underlying land tenure of the proposed licence to be principally vacant crown land (a total of almost 91 per cent), with 6.6 per cent of the licence being pastoral lease, 2.4 per cent being private land, and less than 0.4 per cent being three portions of reserve land (for water, conservation and a vermin proof fence respectively).
According to the list of tenements in the Quick Appraisal there is one live tenement which overlaps the proposed licence at or near the 23.10 per cent overlap with the claim area by 0.1 per cent. There are also two pending tenements (where the applicant for these tenements is the grantee party in this matter) which overlap the proposed licence by 1.1 per cent each. There are six granted exploration leases, now dead, two of which are on or near the 23.10 per cent overlap between the proposed licence and the claim area. The two dead tenements were granted in 1999 – one was forfeited in 2009 and the other surrendered in 2008. It appears there has been and is currently minimal previous exploration activity in the 23.10 per cent overlap area. There are eight tracks, four fence lines, various non permanent lakes (mostly associated with Lake Moore), and one spring/soak/rockhole/waterhole in the proposed licence area.
The grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). According to documents provided by the Government party, these four conditions, and the following 16 other conditions, will regulate exploration activities on the current proposed licence site:
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of a transfer introducing a new Licensee,
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Conservation of Flora & Fauna Reserve 26259 and Vermin Proof Fence Reserve 30865.
8. Mining on a strip of land 30 metres wide with the Vermin Proof Fence Reserve 30865 as the centre line being restricted to below a depth of 15 metres from the natural surface.
9. No interference with Geodetic Survey Station Ninghan 6 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
Consent to Mine on Water Supply Reserve 26781 granted by the Minister responsible for the Mining Act 1978 subject to the following additional conditions:
10. Written notification, where practicable, of the time frame, type and extent of proposed ground disturbing activities being forwarded to the Department of Water’s Northam office seven days prior to commencement of those activities.
11. Any significant waterway (flowing or not), wetland or its fringing vegetation that may exist on site not being disturbed or removed without prior written approval from the Department of Water.
12. The rights of ingress to and egress from the Licence being at all reasonable times preserved to officers of the Department of Water for inspection and investigation purposes.
13. The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Department of Water’s Guidelines and Water Quality Protection Notes.
14. All proposed exploration activities within Public Drinking Water Source Areas complying with the Department of Water’s Water Quality Protection Note Land Use Compatibility in Public Drinking Water Source Areas.
15. All Mining Act tenement activities within Public Drinking Water Source Areas being prohibited unless the prior written approval has been obtained from the Department of Water.
16. All Mining Act tenement activities are prohibited within 2 kilometres of the maximum storage level of a reservoir including the reservoir itself, unless the prior written approval of the Department of Water is first obtained.
17. Storage and use of hydrocarbons and potentially hazardous substances requiring the prior written approval or appropriate permits from the Department of Water.
18. All hydrocarbon or other pollutant spillage being reported to the Department of Water. Remediation being carried out to the satisfaction of the Department of Water.
19. All Mining Act tenement activities are prohibited within a 300-metre radius of any observation well in a Public Drinking Water Source Priority P1, P2 & P3 Areas unless the written approval of the Department of Water is first obtained.
20. All Mining Act tenement activities are prohibited within a 500-metre radius in a P1 area or a 300-metre radius in a P2 or P3 area of any Public Drinking Water Source production well or dam, unless the written approval of the Department of Water is first obtained.
According to Government party documents, the following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach) will be imposed:
1.The Licensee’s attention is drawn to the provisions of the:
·Aboriginal Heritage Act 1972 and any Regulations thereunder.
·Water and Rivers Commission Act 1995 and any Regulations thereunder.
·Country Areas Water Supply Act 1947 and any regulations thereunder; and
·Metropolitan Water Supply Sewerage and Drainage Act 1909 and any Regulations thereunder.
2.The grant of this licence does not include the land the subject of prior Exploration Licence Exploration Licence [sic] 70/2131. 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”.
3.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.
Evidence provided by the native title party
The native title party has provided the following documents:
·A Statement of Contentions lodged on 3 February 2011.
·A signed, unsworn witness statement of Darryl James Fogarty lodged on 9 February 2011.
·A signed and sworn Affidavit of Coral Mary Brockman lodged on 12 January 2011.
The statement of Mr Fogarty is as follows:
‘I, Daryl [sic] James Fogarty of 8 South Street, Dalwallinu, in the State of Western Australia, Sheerer, 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 E 70/3588 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 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.
KUNTURU
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.
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 [sic] it would be to [sic] 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 were 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 [sic] 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 very close to the Tenement area and the Lake Moore Pathway looks like it goes through the tenement area. 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 [sic] 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.Exploration will disturb the spirits unless people like myself can explain more or less where things are and also move the sites if need be. Traditional owners need to be there with exploration occurring to guide where people go and what they disturb.
22.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.
23.There should be negotiations to protect these sites. They’re part of our history and culture and if the area is desecrated 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.’
I accept that Mr Fogarty has the authority to speak for country on behalf of the native title party.
The Affidavit of Ms Brockman is as follows:
I, Coral Mary 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 E70/3588 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 [sic], 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 immediate family and I visit the area every year, sometimes twice a year or more, whenever we get the opportunity. My immediate family are my sisters, brothers and children. It is our tradition to do this, my mother and grandmother emphasised the importance of doing this. Last year there was Sixty Two (62) of our family out the [sic] 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 [sic] 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 kalaya [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 damper or straight in the roots you can find bardies, it’s a very good medicine bush. You can use it for internal heeling [sic].
10.There is kuandolg [medicine fruit tree] that has a 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 Kurara 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 a 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 away. You can get all of these things from the area within the Tenement. There are sandlewood [sic] 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 [sic] 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 recognises 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 used to go through the initiation process and it was also a place where women would go to give birth. This site is a women’s sight [sic] 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 around 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.
EFFECT OF EXPLORATION ON SITES
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.
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. We learn from these sites, our younger generation learn from them. 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.
I accept that Ms Brockman has the authority to speak for country on behalf of the native title party.
Evidence provided by the grantee party
The grantee party has provided a statement of contentions received on 17 January 2011.
Community or social activities (s 237(a))
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (paras [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (para [75]). The Hon C J Sumner has made it clear (para [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) (paras [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (paras [85]-[86]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including s 63, the standard conditions to be imposed on exploration licences, and the additional conditions/endorsements, 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.
In relation to community and social activities at the proposed licence area, Mr Fogarty states that ‘the whole Tenement area is very important as it is within the Lake Moore area’ (at 3) and the Lake Moore area has: a place called Kunturu (for initiation ceremonies, camping, trading, law business) (at 6-7); the sacred Lake Moore pathway used for camping and trading which goes from Kunturu to Mardarburdar (at 3 and 9-11); dreaming stories (at 3); the snake called Bimara which created the water in the lake and which should not be disturbed (at 8); Warrdagga Hill cave used for initiation ceremonies (at 13); a women’s initiation area east of Kunturu also used for growing mushrooms (at 14); and spirit people (wudajis) (at 20-21). Mr Fogarty states he was taught the importance of the area from five or six years of age by his father and uncles, and raises concerns that negotiations need to take place between the traditional owners and the grantee party so that no harm comes to the grantee party or the traditional owners who are the custodians of the area.
Ms Brockman states, in relation to community and social activities at the proposed licence area, that she knows the tenement area and visits with her family every April and sometimes also in September (at 2, 5-6 and 22-23). Like Mr Fogarty, she raises the general importance of the area to the Badimia community and to the social activities of the traditional owners, and was taught about the area from the age of four or five by her mother, grandparents, aunties and uncles (at 4). Ms Brockman states that last year 62 of her family visited the area and camped there to reconnect with ancestors, and this year 67 family members did the same (at 5). Ms Brockman states that the social and community activities on the proposed licence area include: hunting for traditional foods and medicine including goanna, kangaroo and emu and teaching the young people how to hunt (at 6-7); camping (at 7); mixing oil from fat of goanna, kangaroo and emu with ochre to be used as paint and also mixing fat from these animals with oil from the mallee gum tree to be used as a healing balm for skin problems (at 8); collecting seeds and roots of the Guradah tree for food and medicinal uses (at 9); using the fruit and nut of the kuandolg tree for medicine, healing jewellery and ceremonial decoration (at 10); using the Kurara tree for making boomerangs and fighting sticks (at 11); using mulgas for making spears and boomerangs (at 11); and using sandalwood trees and the medicine bush gandilangu for a variety of healing remedies (at 12).
Ms Brockman also refers to the sacred men’s area at Warrdagga Hill (at 14); the Snake (who made Lake Moore) dreaming story (at 15-16); the sacred women’s site for initiation and birthing (at 17); and camping around the Lake Moore area (at 18). Ms Brockman states that exploration activity in the tenement area would interfere with the hunting and camping activities, as it would not be safe to shoot animals with other people in the area, and tracks cleared for exploration would knock down important plants and trees.
I note the grantee party contentions have indicated they signed and forwarded the Regional Standard Heritage Agreement to the native title party, and even though the offer was not accepted, it remains on offer (at 2, 12 and 16). The grantee party contentions also indicate a willingness to comply with the State’s legislative and policy framework (at 6-11, 14-15, 17-21), and that the work planned under the proposed exploration licence would initially involve non ground disturbing surface work such as soil sampling, hand drilling and mapping (at 22-24). The grantee has indicated that where they will conduct activities that could ‘excavate, destroy, damage, conceal or in any way alter an Aboriginal site’ it will undertake a survey of the area (at 25).
The Tribunal’s geospatial services map shows that a significant part of the Lake Moore heritage site is within the 23.10 per cent overlap between the proposed licence area and the native title party claim area. This is confirmed by the DIA register of Aboriginal sites. I understand that the DIA register is not necessarily a register of all significant areas to the native title party in any particular area, and that there may exist areas that are not registered which have significance in relation to the native title party’s social and community activities. The Tribunal’s geospatial mapping shows that the following areas mentioned in the native title party evidence as being of cultural and social significance to the native title party are not within the 23.10 per cent overlap area:
·Goodingow Station
·Mount Gibson
·Warrdagga Hill
·Mardaburdar Hill
·Kunturu
These areas are all to the north of the proposed licence/claim area overlap. However, the Lake Moore site itself (ID21473) is a large, significant site of ceremonial importance, including as a meeting, camping and hunting place (according to the native title party evidence and the DIA register), and the 23.10 per cent proposed licence/claim area overlap is covered, almost in its entirety, by part of the Lake Moore site. Both Mr Fogarty and Ms Brockman refer to the importance of hunting, camping and other social and community activities within the Lake Moore area, including within the proposed licence.
The grantee party contentions show a willingness to engage with the native title party and an intention to comply with the relevant legislative scheme which applies in Western Australia. However, in my view, their contentions go predominantly to the protection of sites as relevant to considerations under s 237(b), than to how the community and social activities, as outlined by the native title party, are not likely to be interfered with.
In Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘Wilma Freddie’), affidavit evidence on behalf of a native title party indicated access to a proposed tenement was regular, but the evidence provided only general information on the present activities of the claim group. The Tribunal found (at [11] & [13]) the requisite level of interference with social and community activities was unlikely in that matter as there was little specific evidence of the activities carried out over the area. In the current matter, Ms Brockman’s Affidavit evidence is quite specific as to the number of people who attend social and community activities on or near the proposed licence, when they visit, and for what purposes. This evidence is also supported by the statement of Mr Fogarty.
The size of the proposed licence is 290.45 square kilometres and the area of the Badimia People claim is approximately 36,129 square kilometres. Consistent with previous Tribunal decisions (for example, Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108), I find that the size of the proposed licence area in the context of the much larger native title claim (and taking into account the 23.10 per cent overlap) makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities. However, evidence suggests that the Lake Moore site has unique qualities as compared with the claim area in general, and the scope of the activities in the proposed licence area as outlined by Ms Brockman and Mr Fogarty makes it likely that it would be difficult for such activities in the area to continue without significant disturbance unless ongoing negotiations were held between the parties, as envisioned by s 31 of the Act.
As outlined in Smith and Others v CRA Exploration Pty Ltd and Others (1996) 133 FLR 251; [1996] NNTTA 32 (at [257]), there may be a number of things which cause interference with community life. If what the grantee party is able to do in lawfully exercising its rights under the terms of the grant is likely to cause direct interference, even if it is only one of the things or causes, then the expedited procedure is not attracted. As outlined by the Hon C J Sumner in Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined 2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd [2010] NNTTA 70 (‘Butcher Wise’) at [36], 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. Usually, 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 to directly interfere with these activities except in an incidental and insubstantial way. However, each case must be evaluated on its merits, taking account of the particular facts. The nature and frequency of the contemporary community and social activities as outlined by the native title party in this present matter, in particular by the evidence of Ms Brockman, are such that there is likely to be direct interference with them by the grant of the proposed licence and exploration activities undertaken. Similarly, in Bardi and Jawi Niimidiman Aboriginal Corporation on behalf of its members/Western Australia/Kimberley Quarry Pty Ltd [2009] NNTTA 153 (‘Bardi’), Daniel O’Dea determined that in an area with no previous mining, exploration or pastoral activity, and where the native title party evidence indicated a rich area for fishing and foraging, there was a likelihood of interference with the carrying on of the native title party’s community or social activities. While in Butcher Wise and Bardi there were Aboriginal communities on or near the proposed licences, and there are none in the present matter, there has been only minimal past exploration activity in relation to the present matter, and evidence suggests regular contemporary activities such as hunting, fishing, camping, gathering of bush tucker and medicine all occur on the area of this proposed licence, which also overlaps the DIA registered Lake Moore site, and part of the native title party claim area.
Hon C J Sumner in Tarlpa (at [121]) makes the point that ‘The Tribunal has determined that the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities may be taken into account when assessing whether the grant of an exploration licence is not likely to directly affect those activities for the purposes of s 237(a) (Walley at [12]).’ In the present matter, there have previously only been limited exploration activities on the proposed licence area, and the predominant land tenure is vacant crown land. The native title party has provided evidence which suggests it is important that the stated social and community activities are done in situ, on or around Lake Moore, which is on or near the proposed licence site/ native title party claim overlap.
In Tarlpa (at [86]) Hon C J Sumner also indicated that where ‘...the community or social activities being carried on are activities such as hunting, fishing, camping or the doing of ceremonies and other cultural events, and they are carried on in situ, then direct interference may be more likely than in a case where the activities may be done wherever the persons who hold native title happen to be at the time those activities are done.’ In other words, the likelihood of direct interference may become more remote, depending on the circumstances. Hon C J Sumner also stated in Tarlpa (at [96]) that s 237a of the Act should be read to embrace ‘...all of the native title holders’ community or social activities, provided those activities are a manifestation of the claimed native title rights and interests...’
The register of Badimia native title rights and interests shows that the native title party has claimed rights to: possess, occupy, use and enjoy the area; make decisions about the use and enjoyment of the area; access the area; use and enjoy the resources of the area; and maintain and protect places of importance under traditional laws, customs and practices in the area. In my view, these are all consistent with the community and social activities, including hunting, fishing, camping, and gathering bush tucker and medicine, presented as evidence by the native title party in this matter.
In Tarlpa, the native title party gave evidence of a broad obligation to look after country. In the present matter, the native title party gave specific evidence of regular activities including hunting, fishing and collection of plants on or near the Lake Moore area. In Tarlpa (at [112]) Hon C J Sumner held that if ‘a native title party regularly camps at a particular spot and the explorers wish to establish an exploration camp at the same place and drill or use earthmoving equipment in the near vicinity of it then it can readily be said that there is a real risk that the community and social activities would be directly interfered with’. In the present matter, the grantee party have indicated that they do not intend doing ground disturbing work initially, however, under the grant of the proposed licence, ground disturbing equipment can be used (albeit subject to conditions). The grantee party also notes that exploration for the proposed product, Gypsum, under the proposed licence, would be done predominantly at surface level, and involve activities including soil sampling, mapping, hand auger drilling, field reconnaissance and survey work. Nevertheless, the existence of the grantee party in areas where the native title party contend they hunt, fish and conduct other social and community activities will arguably be likely to interfere directly with those activities.
Taking all these factors into account I find that there is a real chance or risk that exploration activity is likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the AHA shows the Lake Moore registered site within 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 that area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA does protect all Aboriginal sites, whether on the Register or not.
In his statement, Mr Fogarty outlines a number of sites of significance to the native title party, although not all of them are on the proposed licence site or the 23.10 per cent overlap with the native title party claim area (as previously noted at [32]).
Mr Fogarty’s evidence is also supported by Ms Brockman’s Affidavit that: important sites in the area include ‘burial grounds, birthing site [sic], caves, ceremonial sites, camping grounds, hunting grounds and landmarks which have dreaming stories...’ (at 3); and ceremonial and hunting grounds located within and around the proposed licence including places where old tribal artefacts for ceremonies and law business were and still are stored (at 13). Ms Brockman states ‘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 descendants will get sick...There’s a real presence within that area of the country’ (at 20-21).
The sites identified in the evidence may not coincide with registered sites in DIA documents, apart from the Lake Moore site which is clearly identified and clearly overlaps the proposed licence. I am satisfied that these sites and areas are of particular significance to the native title party in accordance with its 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.
The Government party relies on ss 17 and 18 of the AHA and s 63 of the Mining Act 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 any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the RSHA (Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1, [30]-[34]).
As outlined above, the grantee party’s attitude to the RSHA is positive, as well as to the regulatory regime in general and I accept that the grantee party intends to act lawfully and in accordance with the AHA and the Mining Act.
The evidence of the native title party is compelling in that the proposed licence/claim area overlap is almost totally covered by the Lake Moore site. However, I am confident that the grantee party has lawful and positive intentions, and that the regulatory regime will operate to eliminate the likelihood that sites of significance may be interfered with.
I find that there is not likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area.
Major disturbance to land and waters (s 237(c))
As the evidence relating to s 237(a) of the Act supports a determination that the expedited procedure is not attracted in relation to E70/3588, it is not necessary to consider whether major disturbance to land and waters is likely to occur.
Determination
The determination of the Tribunal is that the grant of exploration licence E70/3588 to Lake Moore Gypsum Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
22 June 2011
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