Albert Little & Ors v Lake Moore Gypsum Pty Ltd
[2012] NNTTA 56
•31 May 2012
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little & Others on behalf of Badimia/Western Australia/Lake Moore Gypsum Pty Ltd,
[2012] NNTTA 56 (31 May 2012)
Application No: WO11/655
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Albert Little & Others on behalf of Badimia (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: Helen Shurven, Member
Place: Perth
Date: 31 May 2012
Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere with sites of particular significance – expedited procedure not attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109(3), 146, 151(2), 237
Aboriginal Heritage Act 1972 (WA), ss, 5, 17, 18
Mining Act 1978 (WA), s 66
Cases:Albert Little and Others on behalf of the Badimia People/Western Australia/Lake Moore Gypsum Pty Ltd, [2010] NNTTA 143
Albert Little & Ors on behalf of Badimia/Western Australia/Magnetic Resources NL, [2011] NNTTA 108
Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362 [2005] NNTTA 1
Clara George & Ors on behalf of Badimia/Western Australia/Magnetic Resources NL, [2011] NNTTA 59
Doris Ryder and Others on behalf of Lamboo People/Western Australia/Allan Neville Brosnan and Phyllis Marie Brosnan, [2010] NNTTA 15
Hughes v Western Australia (2003) 182 FLR 362; [2003] NNTTA 69
Jango v Northern Territory of Australia [2006] 152 FCA 150; (2006) FCA 318
Tullock and Others v Western Australia and another (2011) 257 FLR 320; [2011] NNTTA 22
Les Tullock and Others on behalf of Tarlpa/Western Australia/Duketon Consolidated Pty Ltd, [2011] NNTTA 124
Parker on behalf of Banyjima/WA/Ammon [2006] NNTTA 65
Neowarra v State of Western Australia [2003] FCA 1402
Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] 145 FCR 442; (2005) 220 ALR 431; FCAFC 135
Parker on behalf of the Martu Idja Banyjima People v State of 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
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Western Desert Lands Aboriginal Corporation v Western Australia (2008) 218 FLR 362, [2008] NNTTA 22
WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 372
Young v Western Australia (2001) 164 FLR 1; [2001] NNTTA 42
Representative of the Mr Paul Avina, Yamatji Marlpa Aboriginal Corporation
native title party: Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
Representatives of the Mr Griff Ranson, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Ms Lydia Brisbout, McMahon Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 9 February 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E70/3924 (‘the proposed licence’) to Lake Moore Gypsum Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the negotiations required by s 31 of the Act).
The proposed licence comprises an area of 71.29 square kilometres and is located 74 kilometres south of Paynes Find in the Shires of Dalwallinu/Mount Marshall. The proposed licence overlaps the Badimia registered native title claim (WAD 6123 of 1998; WC 96/98 – registered from 4 October 1996) by 37.32 per cent. No other native title claims or determined areas overlap the proposed licence area.
On 9 June 2011, an expedited procedure objection application was lodged with the Tribunal by Albert Little and Others on behalf of Badimia (‘the native title party’) in respect of E70/3924.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence 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 resolution of the objection by consent.
A preliminary conference was held on 12 July 2011, following which the grantee party considered a draft agreement. At a status conference on 7 September 2011, the native title party requested the matter proceed to inquiry and that compliance dates be extended. This request was granted.
The Government party lodged evidence and contentions on 28 September 2011, with supporting documentation having been lodged by the Department of Mines and Petroleum (‘DMP’) on 8 September 2011.
On 11 November 2011, the native title party lodged the unsigned witness statements of Mr Darryl Fogarty and Ms Coral Brockman, providing a signed version of each statement on 16 February 2012. On 8 December 2011, the native title party lodged contentions in relation to this matter.
On 7 December 2011, the grantee party lodged a Statement of Contentions, signed on behalf of the grantee party.
In an email dated 21 December 2011, the Government party requested an opportunity to file further submissions and requested that the Tribunal conduct an oral hearing for this inquiry. The matter was referred to inquiry and on 10 January 2012 I was appointed by Deputy President Sosso as the Member for the purpose of conducting the inquiry. The Government party’s request was referred to me, and on 24 January 2012 I set directions for parties to provide any further material for the purpose of the inquiry and also sought submissions from parties on the issue of an oral hearing.
On 7 February 2012, the Government party filed further evidence, including: Contentions Concerning the Holding of an Oral Hearing; an Expert Anthropological Report prepared by Dr Ron Brunton dated 7 February 2012; a transcript of evidence taken before the Federal Court of Australia in WAD 6123 of 1998 (Badimia), dated 7 February 2012; and the First Respondent’s Expert Anthropological Report prepared by Dr Ron Brunton and filed in the Federal Court of Australia in the Badimia native title application, dated 1 December 2011.
On 16 February 2012, I requested that the native title party provide further details regarding the use of the claim area affected by this proposed licence, to be provided at the same time as the further material requested in the 24 January 2012 directions.
On 21 February 2012, the native title party requested a six week variation of the 24 January 2012 directions which the grantee party agreed to but which was objected to by the Government party. Taking into account the Government party objection, a variation of four weeks was given, to 23 March 2012, for further native title party submissions.
On 23 March 2012, the native title party lodged further evidence, including: Objectors’ Contentions; affidavits of Mr Ashley Bell, Mr Paul Avina and Mr Darryl Fogarty; and an anthropological report by Mr Michael Robinson dated 23 March 2012. The native title party evidence included submissions on the issue of the Tribunal holding an oral hearing and withdrew their s 237(a) and (c) objections.
A directions hearing was held on 28 March 2012, where the Government party and grantee party were given a further 4 weeks, until 26 April 2012, to file any contentions in reply and directions were made for all parties to provide final submissions in relation to the issue of holding an oral hearing by that date.
On 26 April 2012, the Government party provided their Submissions in Response to Contentions of the Native Title Party’ (‘Response’) and withdrew their request for an oral hearing on the basis that the native title party had withdrawn their contention that the grant of the proposed licence is contrary to s 237(a) of the Act.
On the basis of the submissions of all parties, I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) of the Act). The subject of the determination is the grant of the proposed licence in relation only to s 237(b) of the Act.
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 CJ Sumner considered the applicable legal principles (at [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 Tullock and Others v Western Australia and Another (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Parker on behalf of Banyjima/WA/ Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of 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).
Evidence in relation to the proposed act
Government party evidence
The Government party has provided documents including: a statement of contentions and a statement in response to the native title party contentions; tengraph plans with topographical details, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Database of Aboriginal Sites maintained by the Department of Indigenous Affairs (‘DIA’); copies of the tenement application; copies of the proposed endorsements and conditions of grant; and tengraph quick appraisals.
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
· Three parcels of Vacant Crown Land overlapping at a total of 57.8 per cent;
· Two Pastoral Leases (3114/427 – ‘Mouroubra’ and I288351 – ‘Remlap’) at 0.9 and 41.3 per cent respectively;
· Pastoral Lease Exclusions Area (2015) at 12.3 per cent.
Government party documentation also establishes in respect of the proposed licence: one ‘pending’ exploration licence applied for by Lake Moore Gypsum Pty Ltd (overlapping at 4.2 per cent); and six dead exploration licences granted between 1989 and 2006 and surrendered, forfeited or expired between 1990 and 2011 (overlapping at between 6.9 per cent and 67.2 per cent).
Tribunal mapping does not indicate any Aboriginal communities within the proposed licence, but shows that the proposed licence partially covers a site. The Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act1972 (WA) (‘AHA’) confirms this as the ‘Heritage Place’ Lake Moore site within the proposed licence and claim overlap area (site ID 21473) (a DIA ‘other’ site; ceremonial, mythological, artefacts/scatter, historical, open access).
A draft tenement endorsement and conditions extract for the proposed licence included in the Government party’s documentation indicates that 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]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (conditions 5-6).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture) will also be imposed on the proposed licence:
‘1. The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environment Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3. The grant of this licence does not include the land the subject of prior Exploration Licence 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”.’
Government party contentions (at 5(e)) and the Government party Response (at 25) indicate that a further condition will be placed on the grant of the proposed licence requiring the licensee, at the request of the native title party, to execute in favour of the native title party the Regional Standard Heritage Agreement (RSHA) as follows:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Badimia People, the applicants in Federal Court application no. WAD6123/98 (WC98/96), such request being sent by pre-paid post to reach the Licensee’s address c/-McMahon Mining Title Services Pty Ltd, PO Box 8638, Perth Business Centre WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Badimia People the Regional Standard Heritage Agreement endorsed by peak industry groups and Yamatji Land and Sea Council.’
Native title party evidence
The native title party has provided the following documents:
A Statement of Contentions, lodged on 8 December 2011;·
Signed witness statements of Ms Coral Mary Brockman and Mr Darryl James Fogarty, lodged on 16 February 2012 (originally lodged unsigned on 11 November 2011);·
Further submissions titled Objectors’ Contentions, lodged on 23 March 2012;·
Anthropological Report of Mr Michael Robinson, Consultant Anthropologist, lodged on 23 March 2012;·
A signed and sworn Affidavit of Mr Ashley Bell, lodged on 23 March 2012;·
A signed and sworn Affidavit of Mr Darryl James Fogarty, lodged on 23 March 2012;·
A signed and sworn Affidavit of Mr Paul Avina, lodged on 23 March 2012. ·
The witness statement of Mr Darryl James Fogarty (‘DJF Statement’), signed on 10 February 2012, is as follows:
I, Daryl James Fogarty of 8 South Street, Dalwallinu, in the State of Western Australia, Sheerer [sic], 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 70/3924 by staff from the Yamatji Land & Sea Council. 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 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 it 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 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 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 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.
The witness statement of Ms Coral Brockman (‘CB Statement’), signed on 10 February 2012, 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 E70/3924 by staff from the Yamatji Land & Sea Council. 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 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 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.These 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 a lot 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.
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 trees out there that can be used for the same medicinal 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 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 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 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 our 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 on 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, it’s 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 the wudajis (sprit 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 our 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 the 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 younger people. Once this place is destroyed you can’t get it back.
Both Mr Fogarty and Ms Brockman state they are members of the Badimia claim group and I accept that both have authority to speak for the Badimia area which overlaps the proposed licence.In relation to accepting the two written statements, the Tribunal is not bound by the rules of evidence (as per s 109(3) of the Act). In Doris Ryder and Others on behalf of Lamboo People/Western Australia/Allan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321 [2010] NNTTA 15 (8 February 2010), Hon CJ Sumner (at [18]-[28]) summarises the Tribunal’s practice with respect to statements not in affidavit form. While it is preferable for the evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements. I am satisfied in this matter that the two signed statements are admissible and accept them together with the documents and evidence provided by other parties for the purposes of making a predictive assessment pursuant to s 237(b) of the Act (see Hughes v Western Australia (2003) 182 FLR 362; [2003] NNTTA 69).
However, for the most part, this determination relies on information and evidence provided by the grantee party, the Government party and two sworn affidavits lodged by the native title party (that of Mr Ashley Bell and of Mr Darryl Fogarty, as outlined below). The affidavits were lodged subsequent to the two witness statements (that of Ms Brockman and Mr Fogarty, as outlined above). Although not irrelevant, the two statements are very similar to those filed as evidence for previous Tribunal determinations (see for example Albert Little and Others on behalf of the Badimia People/Western Australia/Lake Moore Gypsum Pty Ltd, [2010] NNTTA 143; Albert Little & Ors on behalf of Badimia/Western Australia/Magnetic Resources NL, [2011] NNTTA 108 (22 June 2011); Clara George & Ors on behalf of Badimia/Western Australia/Magnetic Resources NL, [2011] NNTTA 59 (1 April 2011). As such, the two statements focus on areas of Lake Moore which are elsewhere than the proposed licence in this matter. The affidavits, on the other hand, do address aspects of the proposed licence area, as well as providing information regarding the significance of Lake Moore. While the statements do add to the overall information regarding Lake Moore (for example DJF Statement para 16; CB Statement para 3, 20, 21), I do not find them of great use in terms of making a predictive assessment pursuant to s 237(b) of the Act relating to the overlap area between the proposed licence and the Badimia claim area.
I will, however, look in some detail at the affidavits of Mr Bell and Mr Fogarty, and the submissions provided by the Government party in relation to that evidence, as well as the grantee party’s submissions.
The affidavit of Mr Ashley Bell (‘AB Affidavit’), affirmed on 22 March 2012, is as follows:
‘I, Ashley Bell, of Ninghan Station, via Wubin, in Western Australia, hereby affirm:
1.My name is Ashley David Bell. I live at Ninghan station, on Badimia country. I am a Badimia person and one of the claimants in the Badimia native title claim.
2.I attach a map, marked ‘ADB1’, which was shown to me by staff of the Yamatji Marlpa Aboriginal Corporation (YMAC). I did not draw this map but I think it is accurate from what I know. The map shows Lake Moore, some pastoral stations and towns, and the southern claim boundary for the Badimia native title claim. I told Yamatji staff about different places around Lake Moore and four of these have been marked on map ADB1: Jibberding (about 30km north west of Wubin), Billgaburna Well (on the northern shore of Lake Moore), Woolgarong Rocks (on the western shore) and Mouroubra Road (on the eastern shore).
3.Under Badimia traditions, Badimia country is larger than the area covered by the native title claim. For example Badimia country includes Jibberding, marked on map ADB1. Badimia country also includes all of Lake Moore.
4.I was born in 1959. My mum is Leah Bell. I have lived at Ninghan on and off since I was a little kid, and only had little stints away. I have lived and worked at Ninghan for the last twenty years. This is my home. I have a son, Drew, and grandchildren. My son and grandkids are sometimes in Wubin and sometimes on Ninghan Station and we go camping and visiting Badimia country.
5.I know from my own experience as well as from talking with other Badimia People over that [sic] years that it is not always easy for Badimia people to get onto some areas of Badimia country, because sometimes pastoral station owners have prevented this. This makes it difficult to look after sites. However where the situation improves, then we visit different parts of Badimia country. For example, where the station has been managed by the Department of Environment and Conservation, or where the station owners/managers have changed and the new people are more friendly toward Badimia people visiting country.
6.I learnt stories and sites around Lake Moore from my Badimia uncles and grandfathers and they used to take me out on country. My grandmother (Leah Bell’s mother) who lived and worked on Pullagaroo Station from time to time, and Billy Barlow (or Noonchima) who lived and worked on Goodingnow Station for over 40 years (this is called Coodingnow by local people). The map ADB1 shows these are all areas on, or near, Lake Moore. I have been told a lot about Lake Moore and spent a lot of time visiting there looking after sites, camping, and teaching my son and grandchildren about these things. Lake Moore is an important place to Badimia people and it is important to other Aboriginal groups. People in Leonara[sic]/Laverton area tell stories about Badimia and associations with Lake Moore.
7.I have authority, under Badimia traditions, to look after and talk about Lake Moore. But I am not the only one and there are other Badimia people who have responsibilities for Lake Moore, or parts of Lake Moore. Some areas on Lake Moore have particular stories and custodians associated with them. For example, Leah Bell is a caretaker for the Kunturu stones area. People should not go there unless with a Badimia elder or someone responsible. Other Badimia elders responsible for looking after Kunturu and Lake Moore include Darryl Fogarty, and Ollie George.
8.My mum and I live and work next to Lake Moore and we have particular responsibilities for Lake Moore. I go out and clean the rock holes, and check up on the waterholes. I do that because it is something that has been done by my ancestors. I have to take care of the rock holes, and check up on the waterholes. I do that because it is something that has been done by my ancestors. I have to take care of the rock holes, Wardagga and the whole of Lake Moore because I am Badimia and I live nearby. It is my responsibility to protect those areas and I pass that onto my son. Other people acknowledge that too. It is too far away for a lot of other Badimia people to look after who live in Mt Magnet, Cue, Geraldton, Perth and other places.
9.I have to look after Lake Moore and keep senior Badimia people informed like Ollie George, Darryl Fogarty and his brothers, and others if they can’t get to the Lake because of work or vehicle access. Elders like Percy and Allan George told me a long time ago, specifically, if there is anything happening in Lake Moore them I should let them know them straightaway. They don't ask me to let them know about matters generally, but specifically anywhere on that Lake or around the Lake that could affect the Lake. They would be worried about it.
10.I have worked and managed Ninghan Station for many years, and we are very careful about how we deal with Lake Moore. Even when building a fence, or anything like that. We don't do that on the Lake surface. We don't want to dig holes or cement thing is the lake. The Bimarra spirit lives in the Lake and that would disturb him. If someone digs the surface of Lake Moore, something bad would happen to them. They’d get bad luck or get ill, get sick or have an accident. And the Badimia people responsible for Lake Moore could also get sick and their families too. This is because the Bimarra is disturbed. And this is the same for anywhere on Lake Moore.
11.I have always been told Lake Moore is precious and important. I first remember being taught about this when I was 11 or 12 years old. It has always been the case that Lake Moore is a particularly significant area, because the Bimarra lives there. The Bimarra created Lake Moore and many other important sites in Badimia country like Kunturu, Wardagga, the Lake Moore pathway, Mardubardar Hill. Where the Bimarra has come out of the Lake when he was creating the other sites, there are rockholes and seepages and things. That is why the whole of Lake Moore is significant because the whole Lake is his home. The Bimarra isn’t just in the waterholes and the pretty places, but in the whole Lake. He lives in Lake Moore and we were always taught by the old people you can’t muck around with the Lake. I was told this by Noonchima (Billy Barlow) and other Clinch men.
12.We build a goat fence, on Ninghan Station, to help protect the Indigenous Protected Area. We built the fence down towards Lake Moore, just south of Billgaburna Well, marked on ADB1. If we built the fence into the Lake, it would have given better goat protection. But because the Lake is so precious, we didn’t do that. We didn’t want it in that Lake. We avoid impacts in the Lake, not just where there is an identified site like Kunturu or the walkway, but because the whole Lake is significant.
13.About two years ago, our neighbours on Mt Gibson station wanted to put a fence coming down into the Lake Moore to control goats, along their boundary just south of Woolgarong Rocks, marked on ADB1. They talked about their proposal with my Mum, Leah Bell. We asked them not to build the fence into Lake Moore because of our concerns about it. They said that they could build it because the station boundary goes into Lake Moore. It doesn’t matter where the station boundaries are: under Badimia traditions, the impact would be the same regardless of whether it is within station boundaries or not. This is Badimia law not the government’s boundary marking we are talking about.
14.I attach a map, marked ‘ADB2’, which was provided to me by YMAC. I did not draw this map but I know what area it shows, about halfway down Lake Moore, with Bejowera Rocks on the western side and Mouroubra Road being the road running up the eastern side. Mouroubra Road is marked on ADB1, and I have travelled along it many times.
15.YMAC staff tell me that, on map ADB2, the area marked as E703924 is an application for an exploration licence, and that the company applying for this licence says the work it wants to do in this area:
a. ‘will initially involve soil sampling and broad spaced hand auger drilling’; and
b. ‘The proposed exploration activities are the usual activities associated with exploration licences including...field reconnaissance...low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling’.
16.Doing work that would be ground disturbing on Lake Moore’s surface, like the things the company has proposed here, has the same significance as if we had dug Lake Moore’s surface in our fencing on Ninghan Station.
17.For mining or exploration to occur on Lake Moore and disturb the surface would be like the mining that occurred at Tallering Peak. People say that, if you look at the Aboriginal people who agreed that mining could happen there, a lot of them have got sick and died. Some of those people were related to me by marriage, because my cousins married into them.
18.I would be worried if the same thing happened with Lake Moore my family of I could be affected like those Tallering Peak mob. If a company disturbed the surface looking for minerals it would be a very dangerous thing because it is interfering with a particularly significant area where our Bimarra is and he is the creator of sites in Badimia country.
The affidavit of Mr Darryl James Fogarty (‘DJF Affidavit’), affirmed on 21 March 2012, is as follows:
I, Darryl James Fogarty, of 8 James Street, Dalwallinu, in Western Australia, hereby affirm/say on oath:
1.I am a member of the Badimia native title claim group. I am recognised under the traditional Badimia laws as speaking for and knowing the sites and traditional stories of Lake Moore and surrounding areas. These stories and the knowledge I have were passed down to me by my elder from when I was a young boy, I talk more about this below.
2.I attach a map, marked ‘DJF1’, which was provided to me by Yamatji Marlpa Aboriginal Corporation (“YMAC”). I did not draw this map but I know the area it shows, that is about halfway down Lake Moore, near Bejowera Rocks on the western side of the Lake. Mouroubra Road is the road running up the eastern side of Lake Moore.
3.YMAC staff tell me that, on map DJF1, the area marked as E70/3924 is an application for an exploration licence (‘Tenement area’), and that the company applying for this licence want to do the following activities in this area:
a. ‘will initially involve soil sampling and broad spaced hand auger drilling’; and
b. ‘the usual activities associated with exploration licences including...field reconnaissance...low impact broad spaced hand auger drilling, collection of samples for core assays, soil sampling’.
4.I am familiar with the tenement Area and I have been handed down the custodial right to speak for and have the responsibility to protect the Lake Moore area, including the Tenement Area. The duty to protect Lake Moore for the Badimia people, including places in and around it, has been handed down to me from my father, Cecil Fogarty and others. My father was the custodian of Lake Moore while he was alive. The Tenement Area is important to Badimia people because it is within the Lake Moore area. I was taught by my old people that all of Lake Moore is important to Badimia people not just parts of it.
5.I was taught the importance of Lake Moore, including the Tenement Area, since I was five or six years old. My father and uncles taught me the importance of Lake Moore being the home of Bimara who is the creator giant snake of Badimia country. I was taught to look after the Bimara and respect him. I was taught about 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. My brothers, and others like Ashley Bell, help me look after Lake Moore and places connected to it.
6.Just before Uncle Percy George passed away he took me and my brothers out and wanted us to learn and take on responsibility about Lake Moore and other places in Badimia country. I used to call Percy “Old Gummy”. Old Gummy asking me to take on responsibility was very important to me and I take my role as custodian very seriously.
7.Lake Moore is of special importance to the Badimia people. Our mob have the responsibility to protect Lake Moore. Lake Moore is a very important site in Badimia country and across Australia. Aboriginal people from other groups have told me that Lake Moore is important as it is part of their stories too.
8.As well as the whole of Lake Moore being important there are many individual important sites that can be found in and around Lake Moore too, including:
(a) Kunturu.
(b) Warrdagga;(c) Lake Moore pathway;
(d) Mardarburdah Hill;
(e) Golden Mushroom site; and
(f) Caterpillar Dreaming site.
I know about those sites, but I understand the Tribunal wants to hear about the Tenement Area in particular. I have to tell the Tribunal about the individual sites so it understands how all those sites are linked together from the Bimara in Lake Moore. The whole of Lake Moore is a significant area, even in places outside these particular sites.BIMARA
9.The Bimara lives in and protects the whole area of Lake Moore. Dad and other old people told me if you go to a permanent water source like a soak or a pool then a Bimara is there. When you approach the watering place you’ve got to throw a rock or sand in to tell the Bimara that you’re there. I throw sand and when I do I call out “this is for you, I am Badimia” That way he knows you’re Badimia. If you didn’t do it, the Bimara would get angry and you could get sick. Or the Waterhole could dry up or go salty and you don’t like to take that risk. I was taught to show the Bimara respect and I don’t want to offend the old fella. You can keep him happy if you help him out by digging out the soak and clearing it up.
KUNTURU10.Kunturu is a powerful site. Dad (Cecil Fogarty) told me about that site. Dad told me that women aren’t allowed to go to Kunturu, Kunturu is a very important place where the old people used to have Men’s ceremonies, camping grounds and traded with other tribes. 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.
11.As well as Kunturu I talk below about the work the Bimara did when he made Lake Moore and travelled to Goodingnow, Wardagga and Mardarburdah Hill. After all his work had been done he turned himself into stones and went into that spring near Kunturu. Turning into stones means he is there forever because stones are forever, its permanent. A tree and lots of other things will disappear but stones are around for good if someone doesn’t take them or blow them apart.
12.I have been told that some tourists have knocked down some of the stones at Kunturu. My brothers and I want to go down there and stand them up and restore them to their rightful place. Gummy Percy told me that my father was the custodian for Kunturu and it is now up to me and my brothers to make sure it is protected. I’ve had trouble with my old ute so I haven’t been able to get out there. It’s pretty tricky to get there without a good vehicle or if it’s wet because there is only one way down the edge of the Lake which is a track from Mt Gibson Station.
WARDAGGA
13.The Bimara made everything as he’s the main creator for the Badimia people. He made the sacred cave at Warrdagga when the ground was warm – you see his track on the granite where he slithered across the rock. He came out of Lake Moore and came up to Warrdagga. He made the cave and everything there then came down into the spring at the bottom of the rock on his way out to Lake Moore again. Then the Bimara left Lake Moore again and made the spring and waterfall at Goodingnow station. You can see his big track where he came up to the waterfall and went back to Lake Moore. On his way back to Lake Moore the Bimara made Woodong soak.
14.I know that near Warrdagga Hill there is a sacred cave where men used to hold men’s ceremonies. No women are allowed to go to that spot.
15.Ashley Bell is now the custodian of Warrdagga. I told him in 2010 that is it his job to look after Warrdagga because he is from out family and he lives near there. I can give that job to Ashley because Gummy Percy put me and my brothers in charge of Badimia country south of Wydgee station. I have also told Alan Leggerini that Goodingnow was his to look after, because that old lady Aunty Emily said that Alan was custodian for the waterfall. I said to him, we gotta do these things because we are the ones that know most about these places.
LAKE MOORE PATHWAY
16.My Grandpop Arthur Fogarty and old Billy Barlow told me another part of the story for the dreaming for Lake Moore. The dreaming track runs across Lake Moore and runs all the way to Mingenew. When the Bimara finished creating everything, he came down the Mardarburdah side, the eastern side, of Lake Moore. The Bimara left his track for the people to be guided to make the pathway across Lake Moore and showed them the best way to get across. There is a pathway that goes from Kunturu to Mardarburdah Hill. There are stones that have been there for hundreds of years, maybe longer, and they are there because the old people were shown where to put them. The pathway is the dreaming trail between east and west Aboriginal people. The pathway is the guide that the Bimara left behind and he showed the people where to go.
17.You can see the pathway from Mardarburdah Hill lookout, when the moon or the sun is right. It is where our ancestors gathered with other tribes for all sorts of business. Dad said the Badimia traded knowledge, ochre, boomerangs and spears as such. They traded with other tribes like Noongars from the south, Wongais from the east and the Kalamaia mob in the east.
18.At Mingenew at the end of the walkway there’s a meeting place and there was an open trade route there from the coastal people and the Badimia. Dad talked about a lizard with fine shiny smooth scales, and the Badimia name given to that lizard means ‘fish’. They got this knowledge because the Badimia people were trading with the coast people. There was a big sprint at the open trade route at Arrino (between Carnamah and Three Springs). Dad was told this by old Bob bell who was a Badimia man who lived in Mingenew and knew it well.
NEUTRAL PLACES19.Lake Moore is also important because of its significance in trading and ceremonies with other Aboriginal groups. Aboriginal people have associations and rights to specific country. For example, if you’re a Badimia person, you have the right to hunt, camp, take water, get bush medicines, get bush food, use wood and rocks and all that on Badimia country. But there are also important ‘neutral places’ and ways to travel through without making anyone upset. There’s a fair bit of trade going through this country and my Dad said neutral places were needed. My Dad told me the trade route across Lake Moore so people from the east could pass through to the west. On the east of Lake Moore Badimia people and people from other Aboriginal groups would travel through. There are rockholes on the east side of Lake Moore near the Tenement where people would travel through the area that is now Mouroubra Station.
20.Billy Barlow told me about one soak at Averist Woolshed on the east side of Lake Moore. There is also a soak between Lake Moore and Averist travelling east from Lake Moore and old Billy Barlow told me that the old people would use these rockholes and soaks on their way east and coming back. It is very dry and doesn’t have a lot of bush cover. Those water places on the east are about a days walk from each other.
MARDARBURDAH HILL
21.My old people told me that from Mardarburdah Hill, a big granite outcrop, the old people could see people on the path. Mardarburdah Hill is a very sacred area which is given to us by the Bimara to look after.
22.My Dad told me that the old people use to camp at Mardarburdah Hill 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 that could burn themselves if the dry salty ground broke through. Sometimes it would be too glary to see the pathway and that’s why they had to wait at Mardarburdah Hill.
23.The Bimara worked his way through Mardarburdah on the east of Lake Moore and from there he went to the soaks I know out that way. When I was around there working my uncles used to tell us about the soaks where the old people used to go. There s a soak at Jaling that is a big one, the next soak is Averest that is a good days walk to that soak on the edge of the Lake. From there the next soak is towards Bimbijy or Earoa Rocks.
GOLDEN MUSHROOM
24.There’s also story about a golden mushroom around Kunturu. Nanna Bridget Fogarty said she saw the golden mushroom and the women were sweeping the ground. Dad told me that the golden mushroom was involved in initiations and that’s why you’re not allowed to go looking for it. It’s near a women’s site on the Mouroubra Station. Mardarburdah Hill has a lot of mushrooms around it and you can eat them if you need to, these are on wandarie country (soft ground). They are both connected.
CATERPILLAR DREAMING
25.Gummy Percy told a story about the sand dunes near Lake Moore south of Kunturu. The dunes are red and a different colour to the country around them. A caterpillar brought the desert sand here and stopped. Gummy Percy told my brothers Graham and Wayne that they call the sand dunes the caterpillars and the story goes back to Uluru and it’s connected to that desert country and their stories.
MAKING RAIN
26.Billy Barlow showed me when we were camping out near Averist that you can call up thunderstorms by getting some water from a hole and throwing it around and saying words in Badimia. You can call the storms at several water places, the waterfall at Goodingnow is one of them. My cousin Allen Leggerini and Aunty Ethel used to throw the water around in the wall of the cave at Goodingnow to bring the storms. You need to say some words to the Bimara, because his spirit lives in the water around the waterways and springs and soaks. Once you’ve done that, in 2 or 3 days the thunderstorm will start up.
27.Once I was out there at Averist with my Uncle Jim Clinch and I tried it. He got angry with me when he saw me doing it because he was mustering at the time and didn’t want it to rain. A couple of days later a thunderstorm started. This is the power of the Bimara that we use when we need to and if the Lake is damaged then the Bimara may get angry and we may not be able to call up thunderstorms anymore and some of the water places may dry up.
PERMISSION AND PROTECTION
28.My old people taught me that the whole of Lake Moore shouldn’t be touched – it’s as simple as that and that is our Badimia law. It’s a Badimia site, a very scared one because that’s where the Bimara is, he lives in that Lake.
29.No one should be allowed to drill or break Lake Moore up, it’s one body and that’s it. It’s the Bimara’s home and where his spirit is. If people muck around with Lake Moore that’s gonna upset the Bimara, the old people, the wurdajis and other tribes because they are all connected, you just cannot touch it.
30.If someone wanted to do any mining on Lake Moore I would speak up about it. In 2010 I gave evidence to the National Native Title Tribunal about the importance of Lake Moore to the Badimia people and to stop Lake Moore Gypsum and Echo resources from exploring for gypsum. Lake Moore is a scared place for all Badimia people and the Bimara is there. I could never stand back and let a mining company take gypsum from Lake Moore, it would tear my heart out. Back around 2003 my dad, Gummy Percy, and some Wiluna people spoke up about Lake Moore and important how it was to the Badimia people.
PUNISHMENT
31.If I do not protect Lake Moore I could be spiritually punished by people from anywhere who know about what is going on with it. The people from the Wanmulla side, Wongai mob or Noongar people could blame me and other Badimia people for not looking after Lake Moore. Those people from other groups pass on their knowledge through their ancestors, about trading and ceremonies. It means just as much to them as it does to us because it is a very sacred site.
32.People from the desert mobs may come over and talk to me or contact me in some other way about what is going on with Lake Moore. They’ve got ways of finding out and contacting people. A featherfoot might also come over to Badimia country to see us, it’s very serious, it’s a big, big site for Badimia and lots of groups. We have to do what we can to protect Lake Moore, and if we don’t do the right thing we can get sick, have an accident or some retribution from other tribes can happen. It’s not a good situation for us.
33.The wurdajis are spirits that have a role in all this, they’re the guardians of the old people and our sites. Wurdajis live in the hills and caves and they get upset if we do the wrong thing about country, and then the wurdajis can upset us. If they do not think we are doing a good job of protecting Lake Moore then they can punish us, or the old people will or the Bimara spirit will. Me or my family might get sick as punishment. It’s pretty strong stuff to get involved in, I’ve heard of people being in the wrong place and the crook as punishment from the spirits for trespassing. This could happen to anyone that messes around on the Lake including exploration companies and anyone that works for them.
34.You got to be careful and not knock any stones over and disrespect Lake Moore like that, or do any mining whatsoever.
Mr Bell states he is a member of, and applicant for, the native title party, with authority under the native title party’s law to speak for the area of the proposed licence and I accept that he has authority to speak on behalf of the Badimia People. As outlined previously in this determination, I also accept that Mr Fogarty has authority to speak on behalf of the Badimia People. As such I accept these two affidavits as evidence of the native title party.
In addition, the native title party provided an affidavit of Mr Paul Avina, dated 23 March 2012, in the following terms:
I PAUL QUANG AVINA, lawyer, of 171 Marine Terrace, Geraldton, Western Australia, affirm:
I am employed as a lawyer by Yamatji Marlpa Aboriginal Corporation (YMAC), representing the Objectors in this proceeding, and I am authorised to affirm this Affidavit on behalf of the Objectors.
Unless stated otherwise, I affirm that this Affidavit is true to the best of my knowledge, information and belief, based upon my enquiries of YMAC staff and records kept by YMAC in relation to the Badimia native title claim (WAD 6123 of 1998) (Badimia Claim).
I affirm this Affidavit in support of the submissions by the Objectors to be made on 23 March 2012 to Member Shurven.
Since 30 September 2011, I have had conduct of the Badimia Claim as the allocated claim lawyer, under the supervision of Mr Michael Meegan (Solicitor on Record for the Badimia Claim) and Ms Lisa Randall, YMAC’s Deputy Principal Legal Officer – Yamatji. Prior to me, other lawyers from YMAC had the conduct of the Badimia Claim
All notices and correspondences in relation to negotiations with the Badimia Claim are brought to my attention. Where any company or mining proponent is interested in negotiating with the Objectors, this contact is referred to me.
I am not aware of any contact being made by Lake Moore Gypsum Pty Ltd, seeking to negotiate in relation to tenure it had previously sought through the expedited procedure.
I have checked YMAC’s files for the Badimia Claim, and the e-mails of the lawyers that previously had responsibility for the Badimia Claim. I have not been able to locate any information about Lake Moore Gypsum Pty Ltd seeking to negotiate in relation to tenure it had previously sought through the expedited procedure.
I have personally checked YMAC’s incoming correspondence record from September 2010. I have also queried the relevant staff at YMAC responsible for records. From there searches, I remain unaware of Lake Moore Gypsum Pty Ltd, seeking to negotiate in relation to tenure it had previously sought through the expedited procedure.
Based on my searches and knowledge, I believe that Lake Moore Gypsum Pty Ltd have never contacted YMAC seeking to negotiate with the Badimia Claim in relation to tenure it had previously sought through the expedited procedure.
I note Mr Avina’s evidence and am not clear on the purpose of the affidavit. I do not propose to make further comment on it in this determination, other than to say that there is no requirement for negotiations to take place in the expedited procedure process. I agree with the Government party Response (at 39 and 91) in that it appears the affidavit provided by Mr Avina is largely not relevant to the matter at hand.
The native title party evidence also included the report of Mr Robinson, Consultant Anthropologist, dated 23 March 2012 (‘Report’). The Report was prepared specifically for proceedings in this determination and goes into some detail in relation to the significance of Lake Moore to the Badimia people, and also into the merits of the Badimia claim application. For reasons I outline later in this determination, I do not intend to explore material related to the merits of the Badimia claim. In addition, Mr Robinson’s stated brief for the Report pre-dates the withdrawal by the native title party of their objection to s 237(a) of the Act and it should be noted that I will only focus on those aspects of the Report which relate to s 237(b) of the Act.
Mr Robinson describes in his Report (at 81), research by other anthropologists done in relation to a gypsum mine north of the proposed licence in 2003 (as outlined at 18 of the Report) which concluded that ‘the whole of the lake should be treated as a single system’, with the reference to ‘the lake’ being Lake Moore. He outlines that ‘there is a substantial body of evidence supporting a conclusion that the Lake Moore area is of particular significance...because of its mythological associations with the Bimara Dreaming which is seen as a central component of Badimia identity...’ (at 120(ii)). He states ‘at the very least, a properly constituted heritage survey should be carried out before any ground disturbance occurs in the application area’ (at 120(iii)).
In his Report, Mr Robinson states his qualifications are set out in his ‘main expert report’, which was presumably prepared for the Badimia claim matter. The main expert report, or the extract from it which contains his qualifications, has not been provided. However, he does outline his experience in relation to anthropological enquiries, which is of some assistance. In relation to the other anthropological evidence provided in this matter, by the Government party, Dr Brunton’s qualifications are clearly outlined in the First Respondent’s Expert Anthropological Report (dated 1 December 2011).
The Tribunal has noted on numerous occasions that, unlike a Court, it is not bound by the rules of evidence. However, the Federal Court’s observations about the role anthropological evidence plays in native title cases is of assistance in this matter and supports the Tribunal’s acceptance of both Mr Robinson’s and Dr Brunton’s reports. The Federal Court has found that expert anthropological evidence of traditional laws and customs including that based on field work, which accords with the member of the native title claim group’s evidence, is probative: Neowarra v State of Western Australia [2003] FCA 1402 at [388]; Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 at [263]; Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150;[2006] FCA 318 at [291-292]. In this matter, it is not clear the extent to which Mr Robinson’s or Dr Brunton’s reports are based on their own Badimia country based field work.
As the Full Court of the Federal Court has noted, an anthropologist may observe and record matters relevant to the nature and content of the native title claim group’s traditional laws and customs. There may also be circumstances in which an anthropologist may give evidence about the meaning and significance of what Aboriginal witnesses say and do so as to explain or render coherent matters which, on their face, may be incomplete or unclear: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCA 135; (2005) 145 FCR 442; (2005) 220 ALR 431 [2005] FCAFC 135 at [89].
Mr Robinson’s evidence has been challenged. The Government party Response refers to the report of Mr Robinson and I agree with the Government party (Response at 36) that it is preferential that the native title party provide direct evidence in relation to sites rather than rely on a third party report. Applying the principles outlined above, I accept Mr Robinson’s report, however, it would have been more probative had it been signed and/or sworn, with more detail about his on-country experience with the relevant area (including Lake Moore), and his qualifications as an anthropologist. Similarly in relation to Dr Brunton’s First Respondent Expert Anthropological Report, I accept that report, which also would have been more probative with more detail about his on-country experience with the Lake Moore area.
Grantee Party evidence
The grantee party has provided a statement of contentions signed and received on 7 December 2011. I note the information provided by the representative of the grantee party, including: that the grantee party is prepared to enter into a RSHA with the native title party; that the grantee party is aware that the rights of production or resource development beyond the level of an exploration licence would require more extensive consultation with the native title party; that the grantee party is intending to explore for gypsum with a consequence that work conducted on the proposed license site would be minimal and the ‘majority of this work will be non-ground disturbing’; and that any application for a mining lease would be subject to the right to negotiate procedures under the Act.
I note that the work plan provided by the grantee party potentially involves soil sampling, auger drilling and mapping, which the grantee party describes as not requiring major disturbance. Other work will include: field reconnaissance and geological mapping; surface geo-physics; collection of samples for core assays; soil sampling and surveys, all of which the grantee party notes as being considered minor disturbances to the land. The grantee party also notes that, where it proposes to conduct activities that could ‘excavate, destroy, damage, conceal or in any way alter an Aboriginal site, it procures that the subject area is surveyed for sites (whether registered or unregistered) by those nominated for the purpose by the Traditional Custodians of the land under a RSHA or if the Traditional Custodians elect not to conduct such survey for whatever reason, then by suitably qualified and experienced anthropologists and/or archaeologists, in order to avoid any such impact’ (GP contentions at 24).
I note from the Government party and DMP evidence, that there are no tracks listed on the area, yet the draft conditions (see for example, condition 2), do allow for exploration activities including costeans and access tracks. They also allow (see for example, condition 4), the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanical equipment for surface disturbance with the written approval of the Environmental Officer of the DMP. However, it is the Tribunal’s understanding that this assessment process does not require significant contact with the native title party.
I also note the grantee party contentions (at 12) state that the grantee party ‘executed an RSHA which demonstrates the Grantee Party’s willingness to meet the concerns of the objector in respect of site protection despite the agreement being with a different native title claim’. I take this to be a typographical error as the Statutory Declaration provided by the grantee party representative, through the DMP materials, does relate to an offer of an RSHA specifically for the Badimia native title claimants, who are the objectors in this matter.
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 Badimia people, in accordance with their traditions. The Database kept under the AHA shows one Heritage Place (Lake Moore) overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the Badimia people over that area or in the vicinity. The DIA does not purport to hold 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 intend to protect all Aboriginal sites, whether on the DIA Database or not.
The evidence of Mr Fogarty and Mr Bell attests to Lake Moore itself being an area of particular significance for the purposes of s 237(b) of the Act. Both also make reference to sites on and around the lake, although for the most part these sites, apart from Lake Moore, appear to be located elsewhere than the proposed licence area. The Annexure 4 map to the Government party Response is most helpful in locating some of the areas noted in the native title party evidence. Mr Bell deposes to spending time visiting the lake and ‘looking after sites, camping and teaching my son and grandchildren about these things’ (AB Affidavit at 6).
Mr Bell (at 9) states that ‘[e]lders like Percy and Allan George told me a long time ago, specifically, if there is anything happening in Lake Moore then I should let them know them straightaway. They don’t ask me to let them know about matters generally, but specifically anywhere on that Lake or around the Lake that could affect the Lake’ (emphasis in original document). Both Mr Fogarty and Mr Bell attest to Lake Moore being a very important place for both the Badimia people and other Aboriginal groups (AB Affidavit at 6, DJF Affidavit at 7).
Both affidavits attest to Lake Moore being the home of the Bimara, the main creator for the Badimia people, and outline how multiple sites across the lake are linked together by the Bimara. Mr Bell lists Kunturu, Wardagga, the Lake Moore Pathway and Mardubardar Hill as some of the important sites that the Bimara has created (AB Affidavit at 11) which are all outside of the proposed licence area. However, he also states that ‘[w]here the Bimara has come out of the Lake when he was creating the other sites, there are rockholes and seepages and things. That is why the whole of Lake Moore is significant because the whole Lake is his home’ (AB Affidavit at 11). Mr Fogarty supports this sentiment, stating that ‘all of Lake Moore is important to Badimia people not just parts of it’ (DJF Affidavit at 4).
Mr Fogarty raises the significance of Lake Moore as a ‘neutral place’ where other Aboriginal groups can come for trading and ceremonies. Mr Fogarty states there is a trade route that passes some rockholes and soaks along the east side of the lake which allowed people from other Aboriginal groups to pass through (DJF Affidavit at 19-20).The Government party Response outlines the evidence provided by the native title party (see for example at 33 onwards) but does not refer to the trade route down the east side of Lake Moore which has been raised by the native title party’s evidence. While it is not clear exactly where this trade route extends, I do note the proposed licence area in this matter is along the east side of Lake Moore.
Mr Fogarty then describes the importance of Lake Moore for Badimia people making rain, stating that ‘[t]his is the power of the Bimara that we use when we need to and if the Lake is damaged then the Bimara may get angry and we may not be able to call up thunderstorms anymore and some of the water places may dry up’ (DJF Affidavit at 27).
Mr Bell states that a goat fence that was built on Ninghan Station was not built into the lake because this would constitute an unacceptable impact to the lake according to the Badimia people traditions (AB Affidavit at 12). Mr Fogarty states ‘My old people taught me that the whole of Lake Moore shouldn’t be touched – it’s as simple as that and that is our Badimia law. It’s a Badimia site, a very sacred one because that’s where the Bimara is, he lives in that Lake’ (DJF Affidavit at 28). Mr Fogarty’s evidence is consistent with that provided by Mr Bell.
Mr Bell attests to working near Lake Moore ‘for many years’ and taking care not to build fences, ‘dig holes or cement things in the Lake’ (at 10). He goes on to state ‘We avoid impacts in the Lake, not just where there is an identified site like Kunturu or the walkway, but because the whole Lake is significant’ (at 12), and that ‘Doing work that would be ground disturbing on Lake Moore’s surface, like the things the company has proposed here, has the same significance as if we had dug Lake Moore’s surface in our fencing...’ (at 16).
The Government party contentions and Response are of assistance to the Tribunal, however, I do note that the Response does not distinguish between the area of the proposed licence which is overlapped by the native title party claim (37.32%) and the area of the proposed licence to the south which is not so overlapped. It is the role of the Tribunal to enquire into the overlapped portion only. The Government party Response outlines (at 21) that the grantee party ‘has indicated that it will not exercise the full suite of rights conferred by s 66 of the Mining Act’. I appreciate that the grantee party has outlined in their submissions their ‘planned’ and ‘proposed’ activities, however, I do not believe they have stated they ‘will not’ exercise the full suite of rights available to them. Grantee party intentions are an important part of the risk assessment in relation to s 237 of the Act, and for sufficient weight to be given to them in the predictive assessment, the actual intentions should be as clear as possible.
I believe the question before me is, ‘assuming the grantee party acted within their rights, would they be likely to disturb any sites’? I agree with the Government party (Response at 30) that while the native title party have raised concerns about the effects of exploration by other grantee parties, this is not relevant in the current matter, as there is nothing pointing to the grantee party in this matter having contributed to those concerns.
The Government party Response has suggested (at 58) that I should not exercise my discretion under s146 of the Act to accept or adopt any comments or findings made in previous determinations relating to Lake Moore. However, my view is that the evidence which is in the public domain can be referred to and made use of for the purposes of this inquiry by the Tribunal Member or any party.
The Government party Response (at 59-66) proposes that this determination address whether or not it is likely that the Badimia people are native title holders for the relevant area. The Government party submission is that I should find it is unlikely that the Badimia people are native title holders for the relevant area. In relation to this submission, I restate the context of s 237(b) of the Act (at [61] below), and the role of the Tribunal in future act inquiries (at [62] below).
In the context of s 237(b) of the Act, it must be remembered that this is a future act inquiry rather than an exploration of whether or not the rights and interests claimed can be recognised under the Native Title Act process. I refer to previous determinations of the Tribunal which have relied on the principle that claimed native title rights and interests on the Register of Native Title Claims are treated on the same basis as determined native title rights and interests for the purposes of future act inquiries (for example, WMC Resources v Evans (1998) 163 FLR 333, 340 (Hon CJ Sumner) (‘WMC Resources’); Western Desert Lands Aboriginal Corporation v Western Australia (2008) 218 FLR 362, 375 (Hon CJ Sumner)). For example, in WMC Resources, Hon CJ Sumner stated (at 29-30):
‘In my view Parliament intended to place determined and claimed native title on the same footing for the purposes of considering the effect of a future effect on it. The two categories of native title are considered together both in the decision and the explanatory memorandum...The Tribunal must assume for the purposes of this inquiry that the native title rights and interests which potentially could be effected are those set out in the Register of Native Title Claims and then consider evidence of what are the likely effects of the act on those registered native title rights and interests.’
My role in this process is not to predictively assess which group of people are likely to be native title holders for the area concerned. Rather, it is my role to predictively assess, in relation to the Badimia People, whether or not the act is ‘likely to interfere with areas or sites of particular significance, in accordance with their traditions’ as per s 237(b) of the Act. The Badimia claim is on the Register of Native Title Claims, it has been through a merit test to obtain that registration, and accordingly I accept, for the purposes of this determination, that the Badimia people are the correct people to provide submissions and evidence in support of the Tribunal making a predictive assessment in relation to s 237(b) of the Act. As such, I do not intend to explore further the contentions or submissions by any party in relation to whether or not it is likely that the Badimia people hold native title in the Badimia application or the area of the proposed licence (WAD 6123 of 1998; WC 96/98).
The Government party has provided an Expert Anthropological Report prepared by Dr Ron Brunton dated 7 February 2012, accompanied by a transcript of evidence taken before the Federal Court of Australia in WAD 6123 of 1998 (Badimia), dated 7 February 2012, as well as the First Respondent Expert Anthropological Report prepared by Dr Ron Brunton, dated 1 December 2011. These documents appear to have been provided largely in support of the contention that the Badimia may not be the people who are the holders of native title in relation to the area of this proposed licence or portion thereof. For the reasons outlined above, I do not intend to make further reference to these reports, apart from where they provide information regarding the assessment of s 237(b) of the Act.
The Government party Response (at 74) accepts that some individual sites identified in the native title party’s evidence may be sites of particular significance for the purposes of s 237(b). The Government party focus on sites referred to in the native title party evidence which are not physically within the proposed licence/Badimia overlap and make the point that ‘There is no suggestion that any activities of the grantee party would physically interfere with sites’. However, Lake Moore itself does overlap a large portion of the proposed licence/Badimia claim overlap. It is listed as a Heritage Place with the DIA, and evidence has been provided in this matter regarding its overall significance.
The information provided by Dr Brunton, in the Government Party’s Expert Anthropological Report (dated 7 February 2012), raises issues at taking an approach where Lake Moore is regarded as an area or site of particular significance (for example, at 27 and 35). However, he did not have the benefit of the affidavit evidence provided subsequent to his report, nor was any supplementary information provided by Dr Brunton which addressed those affidavits, which contained specific evidence regarding the importance of Lake Moore as a whole. In addition, previous determinations of the Tribunal have referred to Lake Moore as a site of particular significance (see for example Clara George & Ors on behalf of Badimia/Western Australia/Magnetic Resources NL, [2011] NNTTA 59 (1 April 2011); Albert Little & Ors on behalf of Badimia/Western Australia/Magnetic Resources NL, [2011] NNTTA 108 (22 June 2011).
From the full matrix of evidence which has been provided in this present matter, I have no doubt that Lake Moore as a whole is an area or site of particular significance for the Badimia people and that the grantee party intends to perform some activities on Lake Moore.
I note the Government party’s point (Response at 76) that Lake Moore is not a ‘registered site’ as such but is recorded as an ‘other heritage place’ on the DIA database and that assessors have concluded that ‘there is currently insufficient information to conclude that the lake meets the required definition for registration’. In my view, this is a separate question and a separate process from whether or not an area or site is of particular significance. Tribunal determinations in the past have concluded that various sites throughout Western Australia are sites of particular significance without being recorded by the DIA as a registered site or as an ‘other heritage place’.
The Government party Response (at 84) raises concerns as to whether those members of the Badimia providing evidence in this matter have actually been to the proposed licence area. I agree that, from reading the evidence, it is not clear whether Mr Bell, Mr Fogarty or Ms Brockman have been to the specific area of the proposed licence. However, I do believe they have demonstrated that they visit parts of the lake (for example, see AB Affidavit at 6, 8 and 14; DJF Affidavit at 4-6; 23; 26-27). The Badimia people’s claim is that the proposed licence area lies on one part of a much wider area of particular significance to them, being the whole of Lake Moore. I do not support the Government party’s inference that this particular area would need to be visited regularly for it to constitute part of the larger site of particular significance, being Lake Moore, for the purposes of s 237(b) of the Act.
The Government party is concerned with Mr Fogarty’s evidence that he fears punishment from other Aboriginal people if he does not protect the lake and agrees to the mining (Response at 85). It is clear from Mr Fogarty’s affidavit that he objects to any proposal of ‘mining’ over the lake. He does not explicitly make any comment about exploration itself, which is the subject of this proposed licence area, although he does object to disturbing the lake. Mr Fogarty states that he was taught ‘that the whole of Lake Moore shouldn’t be touched...that is our Badimia law’ (DJF Affidavit at 28) and that he ‘could never stand back and let a mining company take gypsum from Lake Moore’ (DJF Affidavit at 30). I agree with the Government party’s contention that no evidence of actual punishment being administered has been provided by Mr Fogarty. Therefore, for the purposes of this determination I have not given this part of the evidence significant weight.
Overall, the Government party has submitted that the Tribunal should not find the whole of Lake Moore is a site or area of particular significance for the purposes of s 237(b) of the Act. In the event that the Tribunal does find there are areas of particular significance in the area of the proposed licence, the Government party contends (Response at 88) that ‘interference with those areas or sites is not likely’ for a number of reasons.
The first reason is that the Government party contends there is no evidence before the Tribunal that many of the particular sites identified by the Badimia people occur within or near the proposed licence. Earlier in this determination, it was outlined that the focus of Tribunal inquiries is with the portion of overlap between a claim area and a proposed licence area. In relation to this matter, the Badimia people have clearly identified Lake Moore itself, which is within that overlap, as being a site or area of particular significance.
The second reason the Government party contends is that evidence about the Bimara or the Wurdajis are relevant to Lake Moore and the area as a whole, and not just the proposed licence site and that as they are of a spiritual nature they do not have a place in consideration of s 237(b) of the Act. The Government party contends that the interference must be of a physical nature. In this matter, the grantee party will physically explore the proposed licence, apparently including Lake Moore, once the licence is granted, and as such, it can be said there will be, to some degree, physical interference to an area or site of particular significance.
The third reason the Government puts forward is that the grantee party has submitted that ‘most of the proposed exploration activities will be low impact and non intrusive. Any ground disturbing activities (such as exploratory drilling) are intended to be conducted following the appropriate heritage surveys’ (emphasis added). The grantee party has stated that the majority of the planned work will be non-ground disturbing (GP contentions at 22). In circumstances where planned work could ‘excavate, destroy, damage, conceal or in any other way alter an Aboriginal site’ the grantee party submits that a survey be done of the subject area for sites (GP contentions at 24). However, as noted by Member O’Dea in Les Tullock and Others on behalf of Tarlpa/Western Australia/Duketon Consolidated Pty Ltd, [2011] NNTTA 124 (1 July 2011) (‘Duketon’), if the grantee party does enter into a RSHA, there can still be a likelihood that interference may occur as the RSHA only requires the conduct of surveys in circumstances where ground disturbing activity takes place.
In the present matter, the grantee party contends that they define most of their work to be ‘non ground disturbing’. Member O’Dea noted that the site in Duketon included a variety of dreaming tracks and a Lake complex itself. By their very nature, the tracks or sites may not be readily identifiable by persons other than the native title party. Notwithstanding the best of intentions, inadvertent interference is possible in such areas if the grantee party does not have guidance from the native title party. The question for this current matter is whether the area of Lake Moore, which overlaps the proposed licence and the Badimia claim, is such an area.
The fourth reason put forward is that the area has been subject to prior mineral exploration and possible mining activities and is largely covered by pastoral leases. In this, it would appear the Government party is writing about the proposed licence area as a whole, rather than specifically the overlap area between the proposed licence and the Badimia claim. In terms of the latter, mapping provided by parties and the Tribunal shows the majority of the overlap area is vacant crown land, being the area of Lake Moore, with a small area of pastoral lease overlap. In terms of prior mineral exploration and mining activities, on 2 May 2012, the Government party qualified this statement (contained in their Response), clarifying that they are in effect only able to contend that the area has been subject to the grant of previous tenements. I accept that the area has been subject to the grant of previous tenements and, in all likelihood, the associated activities of these grants would have taken place. However, the level of activity that took place in these previous instances is not clear, nor is the extent to which any activity took place on the proposed licence/Badimia claim overlap area.
The fifth reason is that the grantee party is aware of its legal obligations and have agreed to work with the Badimia people through the RSHA. I agree with the Government party that the grantee party has expressed willingness to consult with the Badimia people regarding ground disturbing activities to the extent of the RSHA. The Government party contends that while this may not be ideal for the Badimia people, it is not the role of the Tribunal to enquire whether a native title party may be agreeable to the measures to restrict or notify such activities. I agree with the Government party regarding the role of the Tribunal, and I note in this matter it is probable that the activities of the grantee party are likely to interfere with Lake Moore, as an area or site of particular significance.
The sixth and final reason proposed by the Government party is that the AHA and the regulatory regime work to prevent interference with any area or site of particular significance to the native title holders, and that is applied to sites as defined in s 5 of the AHA. It is not clear as to whether Lake Moore falls under that definition and no evidence has been led to that effect. In addition, the Government party states that if the grantee party made a s 18 application under the AHA it is likely the native title party would be consulted. Nevertheless, likely does not by its nature mean it will be consulted.
The Lake Moore site is clearly identified and clearly overlaps the proposed licence. I am satisfied that this site is an area of particular significance to the Badimia people in accordance with its traditions. Many of the other sites referred to in the native title party evidence are to the north of the proposed licence, apart from Lake Moore itself which overlaps the proposed licence by a significant amount, and also areas associated with the trade route referred to above, which is said to run along the eastern side of the lake. 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 cites ss 17 and 18 of the AHA as reason 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. However, the Tribunal has previously found that the concept of ‘interference’ in s 237(b) is of a potentially wider scope than the proscribed activities in s 17 of the AHA (see for example Young v Western Australia (2001) 164 FLR 1). Depending on the circumstances, activities permitted under s 17 of the AHA, for example the driving of vehicles, including heavy machinery, over the surface of Lake Moore, may constitute interference pursuant to s 237(b) of the NTA, in this particular matter. I do note that the facts of this matter are unique and it remains only in unusual or exceptional circumstances such as these that the protection afforded by s 17 of the AHA would not suffice to deal with the issue of interference.
The evidence of the Badimia people in this matter is compelling in demonstrating the clear importance and particular significance of Lake Moore to them. Rather than a situation whereby the site constitutes a small discrete area located within a comparably large tenement. Further, the proposed licence/claim area overlap of 37.32 per cent is almost totally covered by the Lake Moore site. The RHSA allows ‘non ground disturbing work’ to take place without the need for consultation with the Badimia people. Due to the size of this site, the extent to which it overlaps the proposed tenement, and the nature of the grantee party’s legal entitlements, it is my view that, without further negotiation between the Badimia people and the grantee party, there is likely to be disturbance to Lake Moore, an area or site of particular significance to the Badimia people.
Determination
The determination of the Tribunal is that the future act consisting of the grant of exploration licence E70/3924 to Lake Moore Gypsum Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
31 May 2012
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