Banjo Wurrunmurra and Others on behalf of Bunuba/George Brooking and Others on behalf of Bunuba #2/Western Australia/Carnegie Exploration Pty Ltd
[2013] NNTTA 118
•19 August 2013
NATIONAL NATIVE TITLE TRIBUNAL
Banjo Wurrunmurra and Others on behalf of Bunuba/George Brooking and Others on behalf of Bunuba #2/Western Australia/Carnegie Exploration Pty Ltd [2013] NNTTA 118 (19 August 2013)
Application Nos: WO2012/1027 and WO2012/1045
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Banjo Wurrunmurra and Others on behalf of the Bunuba (WC1999/019)
(first native title party)
- and -
George Brooking and Others on behalf of Bunuba #2 (WC2012/004)
(second native title party)
- and -
The State of Western Australia (Government party)
- and -
Carnegie Exploration Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 19 August 2013
Hearing: On the papers
Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether the act is likely to involve major disturbance to any land or waters – expedited procedure not attracted
Legislation: Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Acts Interpretation Act 1901 (Cth), s 36(2)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Mining Act 1978 (WA), ss 61(2), 66
Native Title Act 1993 (Cth), ss 29, 31, 47, 47B, 87A, 146, 151, 237
Cases:Albert Little and Others on behalf of Badimia/Western Australia/Lake Moore Gypsum Pty Ltd, [2012] NNTTA 56 (‘Badimia’)
Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield, [2012] NNTTA 27, (‘Banjo Wurrunmurra’)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21, (‘Cheinmora’)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 (‘Heron’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24, (‘Geotech International’)
Daisy Lungunan and Others on behalf of the Nyikina and Mangala Native Title Claimants/Western Australia/Kimberley Quarry Pty Ltd, [2011] NNTTA 33 (‘Kimberley Quarry’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22 (‘Tarlpa’)
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd, [2011] NNTTA 118 (‘Allarrow’)
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1 (‘Champion’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243 (‘Little’)
Maitland Parker and Others on behalf of Martu Idja Banyjima /Western Australia/Derek Noel Ammon, [2006] NNTTA 65, (‘Maitland Parker’)
Mark Lockyer and Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, [2006] NNTTA 133 (‘Lockyer’)
Monadee and Others v Western Australia and Another (2003) 174 FLR 381 (‘Monadee’)
Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027 (‘Martu Idja Banyjima’)
Raymond Ashwin and Ors on behalf of Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd, [2013] NNTTA 44 (‘Raymond Ashwin’)
Raymond Ashwin and Ors on behalf of Wutha/Western Australia/Regis Resources Ltd [2013] NNTTA 7 (‘Regis Resources’)
Rosas v Northern Territory and Another (2002) 169 FLR 330; [2002] NNTTA 113, (‘Rosas’)
Silver v Northern Territory of Australia (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith on behalf of the Gnaala Karla Booja People v Western Australia (2001) 108 FCR 442; [2001] FCA 19, (‘Smith’)
The Miriuwung Gajerrong #1 and #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation/Western Australia/Stansmore Resources Pty Ltd [2013] NNTTA 73 (‘Stansmore Resources’)
Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd, [2012] NNTTA 17 (‘Emergent’)
Wilfred Goonack/Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72 (‘Goonack’)
Wurrunmurra v State of Western Australia [2012] FCA 1399 (‘Wurrunmurra’)
Young v Western Australia (2001) 164 FLR 1; [2001] NNTTA 42 (‘Young’)
Representatives of the Danica Trewern, Kimberley Land Council
native title party
Representatives of the Bethany Conway, Department of Mines and Petroleum
Government party Shelley Moore, State Solicitor’s Office
Representatives of the Greg Abbott, M & M Walter Consulting
grantee party
REASONS FOR DETERMINATION
The Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2200 (‘the proposed licence’) to Carnegie Exploration Pty Ltd (‘the grantee party’). The notice specified the notification day as 8 August 2012 and included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
According to the s 29 notice:
· The proposed licence comprises 60 graticular blocks (which equates to approximately 168 square kilometres) situated 22 kilometres north west of Fitzroy Crossing, in the Derby-West Kimberley Shire.
· The native title party had four months from the notification day to lodge an objection application against the expedited procedure statement for the proposed licence. Although the notice stated 8 December 2012 was four months from the notification day, the closing day moved to the next business day of 10 December 2012 due to the operation of s 36(2) of the Acts Interpretation Act 1901 (Cth).
· Grant of the proposed licence would authorise the applicant to explore for minerals for a term of 5 years from the grant.
On 10 December 2012, four months after the notification day, the registered native title claim of Bunuba (WC1999/019; WAD6133/1998) overlapped the proposed licence by 58.77 per cent and the registered native title claim of Bunuba #2 (WC2012/004; WAD1994/2012) overlapped the proposed licence by 41.23 per cent. At the four month date, there were no other claims overlapping the proposed licence and as such, the only native title parties for the purposes of this inquiry are Bunuba (‘the first native title party’) and Bunuba #2 (‘the second native title party’).
The overlap figures have changed since 10 December 2012 due to a determination of native title in favour of Bunuba Dawangarri Aboriginal Corporation RNTBC (‘the RNTBC’), made over part of the claim area of the first native title party, on 12 December 2012 pursuant to s 87A of the Act (see Wurrunmurra) and registered on the National Native Title Register (WCD2012/006). Following the determination, the claim area of the first native title party was reduced on 8 January 2013 and, as the Government party contentions indicate, the current overlap details are: 45.4 per cent of the proposed licence falls within the claim area of the first native title party (the overlap covers approximately 88.69 square kilometres); 13.4 per cent of the proposed licence falls within the determined area (approximately 26.24 square kilometres); and 41.2 per cent of the proposed licence falls within the claim area of the second native title party (the overlap area is approximately 80.62 square kilometres). The first and second native title party have joint representation from Kimberley Land Council and submitted a single statement of contentions. Therefore, where I refer simply to ‘the native title party’, it encompasses both native title parties, and where they are to be distinguished I shall refer to the first or second native title party.
On 13 September 2012, Banjo Wurrunmurra and others on behalf of the first native title party lodged an expedited procedure objection application (WO2012/1027) with the Tribunal in respect of the proposed license. On 21 September 2012, a second objection application (WO2012/1045) was lodged by George Brooking and others on behalf of the second native title party.
Both objections were lodged within the four month period after the notification day and were accepted by former President Neate on 4 October 2012. Initially, former President Neate was appointed as the Member until he appointed me as the Member to conduct the inquiry on 19 December 2012.
The Tribunal held a preliminary conference with the parties on 23 October 2012 and former President Neate issued directions on 4 October 2012 requiring the parties to provide contentions and supporting evidence to the Tribunal and other parties on specific dates to determine whether the expedited procedure is attracted under s 237. Status conferences were held on 5 December 2012 and 30 January 2013. The parties were unable to reach agreement during this period and at the January status conference the parties agreed for the matter to proceed to inquiry.
Initially, as per the directions set on 4 October 2012, the parties were to required to provide contentions and supporting evidence according to the following dates:
The native title party was to comply on or before 8 April 2013;
The grantee party was to comply on or before 15 April 2013; and
The Government party was to comply on or before 29 April 2013.
However, on 19 March 2013, the native title party’s representative requested for the native title party’s compliance date to be extended to 17 June 2013 due to a lack of certainty over the native title party’s future act representative. The grantee party did not oppose, though the Government party did oppose the request. On 9 April 2013, the parties were advised that the request was accepted, the directions of 4 October 2012 were vacated and the matter was set down for a third status conference on 24 April 2013.
On 8 April 2013, pursuant to the directions issued on 4 October 2012, the Department of Mines and Petroleum (‘DMP’) provided the following to the Tribunal and other parties:
A tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence;
Reports and plans from the Aboriginal Sites Database maintained by the Department of Indigenous Affairs (‘DIA’);
A copy of the tenement application and a draft tenement endorsements and conditions of grant extract;
An instrument of licence and first schedule listing land included and excluded from the grant; and
A tengraph quick appraisal detailing the land tenure, dates of s 29 notices, current and historical mining tenements, native title areas and relevant services and other features within the proposed licence.
At the status conference on 24 April 2013, the native title party confirmed that their legal representative had not changed. On 8 May 2013, I set new directions and in compliance with those the following were received:
(a)On 20 May 2013, the native title party provided its statement of contentions, together with:
(i)Affidavit of June Oscar affirmed on 16 May 2013; and
(ii)Attachment marked ‘A’: Map of the proposed licence and the DIA Aboriginal Heritage Inquiry System extract for the proposed licence.
(b)On 27 May 2013, the grantee party provided its statement of contentions, together with:
(i)Exhibit A: Carnegie Exploration Pty Ltd’s Application for 60 Block Exploration Licence;
(ii)Exhibit B: DIA Aboriginal Heritage Inquiry System Results for the proposed licence;
(iii)Exhibit C: Tengraph quick appraisal detailing tenures, native title areas, prior tenements and services affected; and
(iv)Exhibit D: Map grid of Australia issued by DMP showing the proposed licence and the claim areas of the first and second native title party.
(c)On 4 June 2013, the Government party provided its statement of contentions in reply to the native title party, together with:
(i)Annexure 1: A map of the proposed tenement;
(ii)Annexure 2: Tengraph quick appraisal for the proposed licence;
(iii)Annexure 3: DIA Aboriginal Heritage Inquiry System Results for the proposed licence; and
(iv)Annexure 4: Draft tenement endorsement and conditions of grant extract.
At a listing hearing convened on 20 June 2013, the parties indicated that they had no further submissions and were content for the matter to proceed ‘on the papers’ in accordance with s 151(2) of the Act. I have reviewed the material before the Tribunal and I am satisfied that the matter can be determined in that manner.
On 17 July 2013, the Tribunal provided parties with a copy of a map, prepared by the Tribunal’s Geospatial Services, to be used for the purpose of this inquiry. The map shows the proposed licence and relevant surrounding features such as DIA sites, registered claim areas and the underlying tenure and topography. No objections were received in response.
Legal principles
Section 237 of the Act provides:
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
The legal principles outlined and the consideration of the nature of exploration and prospecting licences by Deputy President Sumner in Walley (at [7]–[23] and [24]-[35]) are adopted for the purpose of this determination (see s 146 of the Act), while noting that the Mining Act 1978 (WA) (‘Mining Act’) and the Standard Conditions imposed on exploration licences have since been modified.
In relation to s 237(a), I adopt the legal principles identified in Tarlpa at [10]-[16] and the definitions of ‘interfere directly’ and ‘carrying on’ at [105]-[109].
With respect to s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker at [31]–[38] and [40]-[41] (see also Martu Idja Banyjima; and Raymond Ashwin at [42]). I also adopt those principles set out by former Deputy President Sosso in Silver at [88]-[89].
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters by reference to what is likely to be done, rather than what could be done (see Smith at [23]). The Tribunal is required under s 237(c) to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the specific concerns of the native title party (see Little at [41]-[57]).
Evidence in relation to the proposed act
The Government party contentions and the associated tengraph quick appraisal establish the underlying land tenure of the proposed licence area to be as follows:
· The current petroleum exploration permit (EP 453) overlaps by 34.4 per cent;
· Pastoral leases: Leopold Downs (Indigenous Held) (PL K571500) overlaps by 7 per cent; Brooking Springs (PL 3114/573) overlaps by 68.8 per cent; Jubilee Downs (PL3114/930) overlaps by 2.7 per cent; and Brooking Springs (PL398/822) overlaps by 2 per cent;
· Historical lease (H 369/429) overlaps by 4.8 per cent;
· Road reserves overlap by less than 0.1 per cent;
· Crown Reserve 43101 for the purpose of Conservation Park overlaps by 15.3 per cent;
· Crown Reserve 12475 for the purpose of Stock Route overlaps by 3.6 per cent; and
· Crown Reserve 5096 for the purpose of Water overlaps by 0.6 per cent.
It should be noted that some of those interests which fall within the proposed licence were affected by the determination of native title (Wurrunmura; WCD2012/006) i.e.:
· Exclusive native title exists in relation to: Leopold Downs Pastoral lease (Indigenous Held) (PL K571500) to which s 47 of the Act applies; and UCL 1 formerly subject to Pastoral Lease 3114/930 and two reserves to which s 47B of the Act applies (see Schedule 3 of Wurrunmurra); and
· Non-exclusive native title exists in relation to: a portion of Jubilee Downs Pastoral lease (PL3114/930) (see Schedule 4 of Wurrunmurra); Reserve 12475 (Stock Route); and Crown Reserve 43101 (Conservation Park).
Previous exploration and mining have occurred over the proposed licence as follows: 31 exploration licences were granted between 30 August 1982 and 19 August 2011 (the largest overlap amounting to 58.8 per cent in respect of E04/996); 151 mining claims were granted between 19 April 1973 and 20 March 1982 (the largest overlap among these claims was 0.6 per cent); and three temporary reserves were granted between 25 February 1920 and 19 December 1968 (the largest overlap being up to 100 per cent).
The tengraph quick appraisal also indicates that there are no Aboriginal communities within the vicinity of the proposed licence. This is also shown in the map provided by the Tribunal. Notably, the mapping indicates the Aboriginal community of Biridu is located approximately 8 kilometres north east of the proposed licence and there is a cluster of communities located approximately 15 kilometres south east of the proposed licence, inclusive of Burawa, Junjuwa, Bungardi and Darlngunaya.
The Government party contentions and the results for the DIA Aboriginal Heritage Inquiry System indicate the following sites, all registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’), are located within the proposed licence:
Oscar Range: a painting, artefacts/scatter site; Site ID 12700; registered; open access and Site No: K02536.
Bambururu: a mythological repository/cache site; Site ID 12736; registered, closed access; Site No K02519.
Langkur Spring: a ceremonial site; Site ID 12799; registered; open access; Site No K02423.
Langkur Cave: a painting artefacts/scatter site; Site ID 12800; registered; open access; Site No K02424.
Kulata: a mythological site; Site ID 12802; registered; open access; Site No K02426.
Oscar Range: a repository/cache, skeletal material/burial, painting, artefacts/scatter and grinding patches/grooves site; Site ID 15777; registered; closed access; Site No K02932.
The Government party outlines that the initial grant term of five years is renewable pursuant to s 61 (2) of the Mining Act 1978 (WA) (‘Mining Act’) and also sets out the rights attached to an exploration permit, as per s 66 of the Mining Act:
An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject –
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limited, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing though such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals in the land.
The Government party intends to grant the permit according to the terms set out in the draft tenement endorsement and conditions of grant extract. Conditions 1-4 reflect the standard conditions imposed on the grant of all exploration and prospecting licences (see Tarlpa at [11]-[12]), and the remaining conditions are additional. The draft endorsements and conditions to be applied to the proposed licence are as follows:
ENDORSEMENTS
1The licencee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2The licencee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3The licensee’s attention is drawn to the provisions of the:
·Waterways Conservation Act 1976
·Rights in Water and Irrigation Act 1914
·Metropolitan Water Supply, Sewerage and Drainage Act 1909
·Country Areas Water Supply Act 1947
·Water Agencies (Powers) Act 1984
·Water Resources Legislation Amendment Act 2007
4The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department Draft of Water (DoW) for inspection and investigation purposes.
5The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DOWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway, and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water (Fitzroy River and Tributaries) Areas the following endorsements apply:
8The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
9All activities to be undertaken with minimal disturbance to riparian vegetation.
10No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
11Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
12The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
CONDITIONS
1All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scraper graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·The grant of the licence; or
·Registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7No interference with Geodetic Survey Stations R334T and R334, and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Conservation Park 43101 and Water Reserve 5096.
Consent to explore on Stock Route Reserve 12475 granted subject to:
9No exploration activities being carried out on Stock Route 12475 which restricts the use of the reserve.
The Government party also intends to impose conditions requiring the grantee party to offer to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the first and/or the second native title party. The proposed condition is as follows:
In respect of the area covered by the licence the licensee, if so requested in writing by the Bunuba Native Title Claimants, the applicants in Federal Court application 6133/1998 (WC99/19) and the Bunuba #2 Native Title Claimants, the applicants in Federal Court Application WAD94/2012 (WC12/4), such request being sent by pre-paid post to reach the Licensee’s address not more than ninety days after the grant of the licence, shall within thirty days of the request execute in favour of the Bunuba Native Title Claimants and/or the Bunuba #2 Native Title Claimants, as the case may be, the Regional Standard Heritage Agreement endorsed by peak industry groups and offered by the Kimberley Land Council.
The Government party outlines some of the general features of an RSHA agreement, including that a grantee party must: notify the native title party and provide detailed information about proposed on-ground works; consult about surveys of the land in relation to ground-disturbing works prior to carrying them out; carry out surveys with the participation of the native title party prior to commencing work in some circumstances; and consult the native title party before applying for consent under s 18 of the AHA.
The Government party points to the Tribunal’s past acceptance in Butcher Cherel at [46] and [64]-[66] that the RSHA condition above has sufficient clarity. However, the wording of the proposed RSHA condition is perplexing as Kimberley Land Council does not offer an RSHA. Also, I do not find those excerpts in Butcher Cherel to be favourable to the Government party, as they demonstrate the position that there is no RSHA endorsed by peak industry groups and offered by the Kimberley Land Council. Consequently, the features of the RSHA condition appear to be of little assistance in this matter.
Evidence of the native title party
The native title party filed a statement of contentions on 20 May 2013. The native title party submits that the proposed licence is not an act attracting the expedited procedure on the basis that the proposed licence is likely to interfere directly with the carrying on of the community or social activities of the native title holders, is likely to interfere with areas or sites of significance to the native title holders and is likely to involve major disturbance to land or waters concerned.
In support of its contentions, the native title party relies on the affidavit of Ms June Oscar, affirmed 16 May 2013. This affidavit is Attachment A to this determination. Ms Oscar is one of the senior people in respect of the first native title party’s claim and has been elected chairperson of its Prescribed Body Corporate. She is one of the persons who comprise the Applicant group of the second native title party. She lives at Fitzroy Crossing, within Bunuba country, which is located approximately 20 kilometres south east of the proposed licence. Her mother, grandmother and great grandmother are Bunuba people. She states that she is familiar with the proposed licence and identified it on a map (Attachment A to the native title party contentions). I accept that Ms Oscar is authorised to represent the native title party in this matter. Her evidence is not contested and I accept its truth.
Evidence of the grantee party
The grantee party filed a statement of contentions on 27 May 2013. In that document the grantee party indicated that it supported the contentions of the Government party and further that it would not exclude any community activities from the proposed licence area unless:
· there were safety concerns; and
· it had notified the native title party prior to any exploration activity which was likely to interfere with the exercise of community activities (in particular the gathering of bush tucker, medicines and the hunting of game) and consulted with them in order to minimise any disturbance to such activities.
The grantee party maintained that the proportion of the area of the two Bunuba claims impacted by the grant of the proposed licence was minimal. In the case of the Bunuba claim, 2.616 per cent of the total area, and in the case of the Bunuba #2 claim, 0.823 per cent of the total area. The grantee party stated that it was aware of the existence of six registered sites within the proposed licence. The grantee party stated that it would comply with the AHA and was aware of penalties that could be imposed if it failed to do so. It stated that, should the expedited procedure be found to apply, it would agree to enter into an agreement similar to the Pilbara Regional Heritage Agreement, if requested by claimants, within ninety (90) days and that the grantee party had never in the past been prosecuted for breaches of the AHA. The grantee party maintains that the activities which are permitted under an exploration licence will not cause major disturbance to land or waters within the proposed licence. It indicated that access to the area would be via the Geikie Gorge Road and pastoral station tracks which were set out in maps attached to their submission and that the grantee party would restore the land immediately after carrying out its exploration programme to as close as possible condition as it was prior to the exploration programme being undertaken. The grantee party also noted that there had been a reasonable amount of exploration activity carried out on the land previously, even recently.
Interference with community or social activities – s 237(a)
The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference (see Smith at [23]). The notion of direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of interference and must be substantial and not trivial in its impact on community and social activities (see Smith at [26]). The assessment is also contextual in taking into account other factors which may already have had an impact on the native title party’s community and social activities (such as mining or pastoral activities; see Smith at [27]).
The evidence of Ms Oscar is to the effect that the proposed licence area falls within Bunuba country and that it is surrounded by a number of communities in which Bunuba people live, including Bungardi, Junjuwa and Darlngunaya and Burawa/Old Mission (see paragraph 12). Ms Oscar deposes to the fact that there are a number of springs and creeks all throughout the tenement area where Bunuba people used to live and access during the dry season to hunt, camp, and collect bush tucker and medicine. The Bunuba people hunt for wawanyi or goanna throughout this country largely in the dry season (see paragraph 13). They also use Spinifex wax (barrala) to treat colds and flu (see paragraphs 13 and 16). They gather Pandanus nut (yarrari) and fruits such as mandagalgal, sugar bag (nhaa) and konkerberry (biriyali) and the wood and roots of the biriyali tree are used in smoking ceremonies (see paragraphs 15 & 17). Ms Oscar says that she has taken her family to the area and that she has used those trips to teach the younger generation about traditional knowledge and culture related to the Bunuba Country. Those visits have taken place in the western part of the proposed licence area, the latest being in August last year [2012] (see paragraphs 20 and 28). Ms Oscar explains that the Bunuba rangers who were employed by the Department of Environment and Conservation regularly go to Brooking Gorge in the tenement area. Further, these rangers take people out into the Bunuba areas including the area of the proposed licence in order to conduct cultural mapping with senior people amongst the group, including Ms Oscar’s mother (see paragraph 22).
Ms Oscar states that there is much rock art and cave paintings in the area which the Bunuba people regularly take tourists to in order to teach them about the important places of the Bunuba people. She states there is a painting at the top of a tall sheer cliff at Jawi (see paragraph 23). The native title party, in their contentions, suggest that one of the community and social activities of the Bunuba people involves the fact that they ‘belong to the country’ which comprises the area of the proposed licence (reference is made to paragraph 12 of Ms Oscar’s affidavit). It does not appear to me that that paragraph makes any reference to ‘belonging to the country’; rather, it talks of people living in various locations close to the country and that the Brooking Springs pastoral lease is on Bunuba country (see 16.1 of the native title party’s contentions).
The grantee party contends the grant of the proposed licence is unlikely to directly interfere with the social activities and highly unlikely to interfere with the community activities of the native title holders. The grantee party also indicates that it intends to:
(a)not exclude any community activities from the area of the proposed licence, subject to safety concerns;
(b)consult with the community if a particular activity is deemed unsafe for the conduct of community activities; and
(c)notify the Traditional Owners prior to any exploration activity likely to restrict gathering of bush tucker, medicine and hunting, to minimise disturbance.
The grantee party refers to the proportion of each claim area which would be subject to exploration under the proposed licence. It states the claim area of the first native title party is 439,200.2 hectares and the part of the proposed licence falling within the claim area is 11, 492.48 hectares, resulting in 2.616 per cent of the claim area being subject to exploration. It also states the claim area of the second native title party is 979,113.20 hectares with the part of the proposed licence falling within that claim amounting to 8,061.7 hectares, resulting in 0.823 per cent of that claim area being subject to exploration.
The native title party submits that the mere existence of the grantee party on the proposed licence could be likely to give rise to direct interference with the carrying on of community or social activities, even if there is no direct physical interference, citing Carr J’s assessment in Ward that intensive exploration activities, possibly involving equipment and setting up seismic lines on hunting grounds, could upset an Aboriginal community and cause distress at the thought of such activities. I, and numerous other Members of the Tribunal, have dismissed this submission previously as being without merit (see Stansmore Resources at [29] and the decisions referred to therein).
The Government party states that interference under s 237(a) must involve direct physical interference, irrespective of whether spiritual interference exists as well. I have already dealt with the issue of the reliance on Ward at paragraph [38] above.
The Government party cites various cases including Smith at [27] in asserting that the Tribunal is entitled to have regard to other factors which affect community or social activities, inclusive of external regulation, or previous exploration and pastoral activity which has impacted upon flora, fauna and watercourses. The Government party refers to the land tenure set out in the tengraph quick appraisal for the Tribunal to have regard to the community or social activities being subject to lawful activities of the pastoral lessees.
In relation to Ms Oscar’s affidavit, the Government party accepts many of its elements but raises issue with the fact that there is no specific location or description of the regularity of the occurrence of the activities of hunting, fishing or collecting of food and other products described in Ms Oscar’s affidavit. Further, although there is reference to a trip undertaken by Ms Oscar in 2012, with her mother and other young Bunuba people, it does not give any indication of how regularly such visits occur, or where they occur within the proposed licence, other than the general area in its west. Further, the Government party suggest that it is unclear where exactly the members of the Bunuba people, who are said to live in and around the area, are located. The native title party has not provided evidence in any great detail as to the location of the living arrangements of the Bunuba people. However, given the fact that a number of communities specified in Ms Oscar’s affidavit are within the vicinity of the proposed licence and are in proximity to the town of Fitzroy Crossing, it does seem to me that there is sufficient evidence to conclude that Bunuba people live within the vicinity of the proposed licence and certainly within a range of distance which would enable frequent access when seasonal conditions permit it.
The Government party take issue with the reference in the native title party’s contentions to the activity of ‘belonging to country’ and also with the use of the term ‘conduct their community’ (see paragraph 13 & 16 of the native title party’s contentions). I've already made comment on the reference to ‘belonging to country’ and I have made reference in the past to the questionable meaning of the term ‘conduct their community’. However, on my best reading, as with the reference to ‘belonging to country’, the term ‘conduct their community’ is not contained in the body of Ms Oscar’s affidavit and I will not give it any further consideration.
The Government party further suggests in its contentions that the likelihood of interference with social and community activities is greatly lessened by the willingness of the grantee party to enter into a Regional Standard Heritage Agreement if such a condition was imposed. The difficulties with this proposition, given that no such document exists, have been discussed earlier in this decision. The Government party asserts that there has been prior mineral exploration conducted in the area and that an existing petroleum exploration permit covers 34.4 per cent of the proposed licence area. They also submit that, due to the fact that 80.5 per cent of the area is covered by pastoral leases which have partially extinguished native title and certainly reduce the level of control and access to the area by the native title party, social and community activities are not likely to be further greatly disturbed (Government party cites Tarlpa at [122] in support). The Government party contends that there are no Aboriginal communities within the proposed licence area and that it is commonly accepted that the intersection of the activities of the grantee party and the native title party do not necessarily create a real chance of interference (see Rosas at [68] and [71]).
Before finally considering the question of whether the evidence of Ms Oscar is sufficient to establish that s 237(a) applies to the grant of the proposed licence, there is an area of confusion which I think needs to be clarified. At paragraph 9 of Ms Oscar’s affidavit, she states that ‘the tenement area is situated on Brooking Springs (Gurangadja) pastoral station and includes part of Brooking Gorge and the Oscar Range’. At paragraph 14 she says she knows that the Brooking family, who live at Bungardi, regularly go out to Brooking Gorge in the tenement area to hunt and fish, and similarly the Bunuba rangers go out to Brooking Gorge in the tenement area during the dry season to undertake cultural mapping (see paragraph 21). The problem is that, according to the map, Brooking Gorge itself does not fall within the proposed licence. The proposed licence straddles the south western portion of the Brooking Gorge Conservation Park, which according to the map does not include Brooking Gorge itself. It would appear that Brooking Gorge is some three to five kilometres to the east and south of the proposed licence area. Therefore, the activities conducted at Brooking Gorge are not directly relevant to the question of whether the grant of the proposed licence will interfere with carrying on of the social and community activities of the native title party. The question of whether the activities of the grantee party on the proposed licence area will have an indirect impact on the activities of the native title party at Brooking Gorge is not addressed.
A small proportion of the proposed licence, in the central northern section of it, appears to lie within the Leopold Downs pastoral lease (PLK571500). This pastoral lease is Indigenous-held, indeed held by the Bunuba people. The Government party’s arguments regarding the native title party’s activities being subject to the lawful activities of the pastoralists have to be qualified by the different kind of access associated with the pastoral lease of this kind. In Monadee, it was found that the usual prevalence of ongoing lawful activities of pastoralists over native title rights did not automatically apply on Indigenous-held pastoral leases (see also Banjo Wurrunmurra at [52]-[53]). In relation to the remaining pastoral leases, it has been established that the community and social activities have been impacted to some extent, at least in the case of Brooking Springs where access was obstructed by gates being locked by the previous owner (see paragraph 18 of Ms Oscar’s affidavit). That being said, nothing in Ms Oscar’s affidavit indicates that there are any current difficulties with access to the area of the pastoral leases within the proposed licence. Indeed, Ms Oscar makes reference to the fact that, apart from Leopold Downs being owned by Bunuba people, the recent determination of native title also involved an agreement with the company who are the current owners of Brooking Springs designed to ensure better access (see paragraph 18).
The evidence presented by Ms Oscar is general in nature. She does make reference to specific areas within the proposed licence which were associated with her mother, such as Two Mile (at 9) and to the Oscar Ranges in the western area of the tenement (at 18), but the other evidence seems to indicate that most of the activities which she describes take place in the vicinity of Brooking Gorge. Part of the tenement falls within the Brooking Gorge Conservation Reserve and she may be referring to those areas, although the map clearly indicates that the Gorge itself and the specific area referred to as Brooking Gorge is some distance from the proposed licence. The Government party has made reference to the impact of pastoral leases and, in my consideration of that matter, I have taken into account the good relations which exist between the Bunuba people and the Brooking Springs pastoral lease holders and the fact that Leopold Downs is Indigenous-owned. However, I note that there are no Aboriginal communities within the proposed area, notwithstanding that Aboriginal people and members of the Bunuba native title party live in close proximity to the area.
Given the proposed exploration programme of the grantee party, the activities that they are permitted to carry out under their licence, and the fact that they have given an indication that they intend to notify and consult with the Bunuba people before they undertake any such activities, it does appear to be unlikely that there will be any significant potential interference with the social and community activities of the native title party by the conduct of the exploration activities of the grantee party.
In the circumstances, I am unable to conclude that the grant of the proposed licence will interfere with the social or community activities of the native title party on the proposed licence.
Interference with sites or areas of particular significance - s 237(b)
The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular significance (that is, more than ordinary) significance to the native title party in accordance with their traditions. DIA documentation indicates that there are six registered sites within the proposed licence. The register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal considers whether there is evidence to support the existence of relevant sites in any particular matter.
The native title party refers to the DIA register extract in setting out the six registered sites within the proposed licence area and notes that the listed sites are not a complete representation of the sites in the proposed licence area. The native title party refers to the strict definition in s 5 of the AHA concerning sites and objects protected by the AHA and asserts that the definition of an area to which the AHA applies is more restrictive than the terms of s 237(b) of the Act. This submission has recently been addressed by me in Geotech International (at [40]) and I adopt the comments I made there with reference to the cases cited.
The native title party contends that it is likely, in the sense that there is a real and not remote chance, that the future act will directly interfere with sites of particular significance within the proposed licence, due to these claims in relation to the six sites:
The native title party has Dreamtime stories connected to the proposed licence. The Bunuba law followed comes from the Dreamtime and there are places within the proposed licence which have great significance to Bunuba People (see paragraph 25 of Ms Oscar’s affidavit);
Oscars Range (Site ID 12700) is described in detail as: having an eastern end, a middle part and a western end; being rich in rock art and cave paintings, including in the proposed licence area, which Ms Oscar saw as recently as August 2012 and the place she taught children about the stories and knowledge of Bunuba occupation; a place where there are powerful forces and Bunuba law requires people to ask permission to visit the country for their wellbeing; and there is an important place called Jawi or Lilly Hole (see paragraph 20, 23, 28 and 33 of Ms Oscar’s affidavit);
Bambururu (Site ID 12736) is regarded as an important site where spirit babies live (see paragraph 27 of Ms Oscar’s affidavit);
Oscar Range (Site ID 15777) contains skeletal remains of Bunuba people in the caves along the Oscar Range and there are numerous important sites (see paragraph 26 of Ms Oscar’s affidavit); and
The native title party refers to the existence of registered sites Langkur Spring (Site ID 12799), Langkur Cave (Site ID 12799) and Kulata (Site ID 12802). These sites are not explained in the affidavit.
The Government party contends that there is insufficient evidence in the material provided by the native title party or the affidavit of Ms Oscar to demonstrate that any of the sites amount to an area of particular significance within the meaning of s 237(b) (see Government party contentions at 63-66).
The Government party contends that the mere registration of a site under the AHA is not determinative of the fact that it is a site of particular significance under s 237(b). It also submits (at paragraph 67 of its contentions) that an ‘area or site of particular significance must mean an area that stands out in some way from the general background of other sites and the country as a whole’ and not every site identified as significant will qualify (see Cheinmora at page 34). The Government party rejects the suggestion that the area is ‘site rich’ (see paragraph 18-19 of the native title party contentions), suggesting that the term is unhelpful in the circumstances. The Tribunal has addressed these issues frequently, most recently in Emergent, expressing the view that the mere assertion of the fact that there are number of sites in the area does not make it site rich or advance the argument in relation to the question of whether any site is a site of particular significance to the native title party for the purposes of s 237(b).
As has also been said by former Deputy President Sosso, in Lockyer (at [19]):
Identification of whether an area is site rich can only occur if there is evidence of sites and areas registered under the relevant aboriginal heritage legislation of a State or Territory and/or evidence from persons asserting native title identifying such sites and explaining their significance. It would be incorrect to assume that simply because there are numerous sites registered on a heritage register that the Tribunal will make a finding that an area is “site rich”.
As is well established, registration of an Aboriginal site on the DIA Register, in itself, does not mean a site will be of particular significance, and indeed a site can be a site of particular significance without being recorded by the DIA (see Badimia at [67]). What is required for s 237(b) is for a site to be of special or more than ordinary significance to native title claimants (see Cheinmora at page 34-35 per Carr J). There must be evidence with sufficient and specific detail to allow the Tribunal to make the predictive assessment required by s 237(b) (see Heron at [43]).
If any sites were found to constitute a site of particular significance, the Government party submits interference would be unlikely for the following reasons:
(a)The Government party regards Ms Oscar’s concerns in paragraph 31 (concerning degradation to the ecosystem) as merely speculative and contends they could be addressed by the endorsements and conditions of grant;
(b)The Government party regards Ms Oscar’s concerns in paragraph 32 (concerning disturbance of the Unggudu) and paragraph 33 (concerning disturbance of powerful forces) as: speculative and subject to remedy through the endorsements and conditions of grant; subject to an argument that ‘beliefs about disturbing spiritual beings are close to ubiquitous among Aboriginal people’ and the 1998 amendments to s 237 have avoided an approach to expedited procedure applications where disturbance to spiritual beings could potentially result in widespread prevention of the expedited procedure applying (see paragraphs 72(b) Government party contentions); and, in relation to the powerful forces, too general as there isn’t a specific area within the proposed licence to which the concern relates;
(c)The grantee party’s conduct would not exceed activities that have already occurred in relation to prior mineral exploration, the current exploration permit and the pastoral leases covering up to 80.5 per cent o f the proposed licence; and
(d)The operation of the AHA and associated processes, with specific emphasis on s 17 of the AHA protecting Aboriginal sites and s 18 of the AHA regarding consultation with Aboriginal persons.
In relation to the interaction between s 237(b) and the AHA I refer to the presumption of regularity in Walley at [50]-[51], whereby it is presumed the grantee party will act lawfully and the regulatory regime is generally regarded as adequate to ensure that there is not likely to be interference with sites of particular significance (also see Silver at [24]). Each case must be considered individually as the protective regime cannot be said to be completely adequate in all cases (see Maitland Parker at [35]; Butcher Cherel at [81]-[91]). The Tribunal must decide, based on the specific facts and the nature and extent of sites of particular significance, whether the protections of the regulatory regime, by way of the AHA and conditions and endorsements attached to the grant, are sufficient to make it unlikely that there will be interference with sites of particular significance.
I accept that the grantee party intends to act lawfully under the regulatory regime and I note its reiteration of the potential occurrence of an RSHA being put in place. However, the Tribunal has previously found on numerous occasions that the notion of ‘interference’ under s237(b) is of wider application than the activities in s 17 of the AHA (see Young at [57]) and I note the distinctions between s 237(b) and the AHA drawn by the native title party.
The evidence of the native title party explains the significance of some of the six registered sites. I note that there may well be more sites that have not yet been recorded as the DIA database does not purport to be a complete record of all Aboriginal sites (see Badimia at [49]) but nonetheless attract protection under cultural heritage legislation.
I am of the view that the registered sites of Bambururu (Site ID 12736), Langkur Spring (Site ID 12799), Langkur Cave (Site ID 12799) and Kulata (Site ID 12802) cannot be categorised as sites of particular significance as specific evidence detailing their significance has not been provided. In relation to Oscar Range (Site ID 12700), Ms Oscar has provided evidence that rock art and paintings are found throughout the Range and specifically inside the proposed licence, of such significance that tourists are taken there and young Bunuba children are taken there to learn of their culture. She describes the art work as indicative of Bunuba occupation and an important part of connection to the country. In relation to Oscar Range (Site ID 15777), Ms Oscar has stated her knowledge that the remains of deceased Bunuba people, in connection with massacres in the area, are found within the caves of the site. Previous Tribunal decisions have held that burial grounds may constitute a site of particular significance (see Kimberley Quarry at [52]). On the basis of the evidence before me I have come to the conclusion that Site ID 12700 and Site ID 15777 in the Oscar Range are sites of particular significance to the native title party. The question that now arises is whether the conduct of exploration activities under the proposed exploration licence are, in the particular circumstances of the matter, likely to involve interference with them.
The actions to be taken by the grantee party to avoid interference to any sites of particular significance are crucial to the assessment under s 237(b). As I explained in Geotech International (at [43]):
...the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided.
The grantee party has filed contentions in which it has indicated that it will comply with the AHA, is aware of the penalties under the AHA, will report any Aboriginal sites identified as required under the AHA and has never been prosecuted under the AHA. The grantee party has not provided any great detail as to how it will address issues which are raised by the existence of sites of particular significance within the area. It recognises that there are six identified sites, two of which, in the Oscar Ranges, I have found to be of particular significance to the native title party. It has indicated that it will adhere to the AHA, which by necessary implication means that it will not interfere with any of those sites and it is aware that, should it do so, it will be subject to penalty. The grantee party has also indicated that it is prepared to enter into an alternative heritage agreement similar to the Pilbara Standard Heritage Agreement. The reason for this is that there is no Regional Standard Heritage Agreement which has been agreed between the Kimberley Land Council and the State Government in relation to the Kimberley area. Such an undertaking by the grantee party is noted but is unlikely to be of much practical value where there is no agreed document.
The Oscar Range site (ID 12700) is located by coordinates, although they are suggested to be unreliable. The Oscar Range site (ID 15777) is a closed site and no information is available as to its location. One can infer that all of the area of the range in the north-western section of the proposed licence area should be treated with considerable caution by the grantee party and the exercise of its activities under the proposed licence. In my opinion in these circumstances, it is likely that without further guidance from the native title party that the miner may, even inadvertently, interfere with some sites of significance in the Oscar Range. These difficulties of course could easily be avoided by consultation between the native title party and the grantee party before any exploration activities take place in the area. Unfortunately in these circumstances, I am not in a position to impose such a condition and it is not clear from the grantee party’s submissions that they intend to behave in that manner (see Allarow at [40]). Consequently, I am of the view that, without there being further consultation with the native title party, it is likely that these sites of particular significance may be interfered with, albeit inadvertently and consequently this limb of s 237(b) has been satisfied by the native title party.
Major disturbance to land and waters - s 237(c)
The Tribunal is required to make an evaluative judgement on whether major disturbance to land or waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]). The Tribunal has always had regard to the overall circumstances of each case, including in particular the locality in which the exploration or prospecting will take place as well as the remedial nature of the regime in place. It will consider if there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration or prospecting activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that prospecting and exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (see Champion at [77] and the cases cited therein).
The native tile party contends that the grant of the proposed licence is likely to involve major disturbance by reference to a range of native title rights held by the native title party including the right to protect sites, care for country, to go out on country, to hunt and fish on country, to gather produce from country, to teach young people about culture and to visit historically significant places. Specifically in her affidavit, Ms Oscar refers to disturbance to the ‘cultural and natural landscape balance of the area’, that the exploration is likely to cause ‘major degradation to a fragile ecosystem’, and that it would be ‘endangering the extensive rock art and cave paintings and other significant sites in the area’ (see paragraph 31). In paragraph 32, Ms Oscar makes reference to springs in the area which were created by powerful beings or ‘Unggudu’ who could be disturbed if the mining companies disturb those springs. Further, she suggests that under Bunuba law permission needs to be asked before people can go on Bunuba country and people who do not comply with that protocol put themselves at risk (see paragraph 33).
The Government party submits that the native title party’s interpretation of s 237(c) is implausible. They argue that the ordinary meaning of disturbance of land and waters requires a material and physical effect on the land and waters and interfering with the right to conduct religious practices without any material physical effect cannot be used to advance an argument in relation to s 237 (see Goonack at [44] and Regis Resources at [73]). Further, the Government party contends that the grant of the proposed licence is not likely to involve major disturbance or create rights, the exercise of which is likely to involve major disturbance of the land, for the following reasons:
The exercise of rights under the exploration licence will be governed by the State’s Mining, Aboriginal Heritage and Environmental Protection Regimes;
Any disturbance of the land will be mitigated by the rehabilitation requirements; and
The proposed area has been the subject of prior mineral exploration including petroleum exploration.
I agree with the submissions of the Government party that the sort of interferences which are referred to as potentially creating major disturbance by Ms Oscar in her affidavit are not matters which are relevant to this particular limb of s 237. Those sorts of issues in essence have been addressed by reference to the determination in this decision relevant to s 237(b).
In conclusion I find that that the grant of the proposed licence is not likely to involve disturbance of the kind contemplated by s 237(c).
Determination
The determination of the Tribunal is that the grant of exploration licence E04/2200 to Carnegie Exploration Pty Ltd is not an act attracting the expedited procedure.
Daniel O’Dea
Member
19 August 2013
ATTACHMENT A
Affidavit of Ms June Oscar, affirmed 16 May 2013
I, June Oscar, Chief Executive Officer of Marninwarntikura Fitzroy Women’s Resource Centre, Fitzroy Crossing, in the State of Western Australia, affirm:
My name is June Oscar. My Aboriginal name is Thalbagiya.
I was born on 21 April 1962 in Fitzroy Crossing and have lived here most of my life.
My mother, Mona Oscar is a Bunuba elder who was born at the Native Hospital in Derby. My mother does not know her date of birth. My grandmother and great grandmother are also Bunuba. My great grandmother is buried in the Oscar Ranges on the Leopold Downs side in an area where my grandmother took my mother and where my mother took me.
My mother spent most of her life at Leopold Downs station on Bunuba country. She also lived at a place called 2 Mile Bore that is situated within Brooking Springs pastoral lease.
I have learnt the Bunuba language mainly through my mother and grandmother and am now a fluent speaker of the Bunuba language. I have also contributed to the publication of a book called “Thangani Bunuba” which contains stories told by Bunuba elders and have learned about Bunuba traditional law and culture through my mother, grandmother, family members and other senior Bunuba people.
I am one of the senior people for the Bunuba native title application (WAD6133/98). Most of this claim was subject to a Federal Court consent determination of native title on the 12 December 2012.
I was elected the inaugural Chairperson of the Bunuba Dawangarri Aboriginal Corporation (“BDAC”), the Prescribed Body Corporate for the determined area. I am also one of the named Application for the Bunuba #2 native title determination application (WAD94/2012). I have the authority on behalf of Bunuba people to talk about these matters affecting Bunuba country.
I know the area where Carnegie Exploration Pty Ltd “the grantee party”, have applied for Exploration Licence Number E04/2200 (“the tenement area”), very well, because I have been shown a map of the tenement area. The map I was shown is attached to this affidavit and marked “A”.
The tenement area is situated on Brooking Springs (Gurangadja) pastoral station and includes part of Brooking Gorge and the Oscar Range. My family and I know these areas very well. There is a place within the tenement area called 2 Mile Bore that is now abandoned. My mother and her promised husband were sent to look after 2 Mile Bore by my biological father Robert Skuthorpe whose family used to manage Brooking Springs pastoral station back in the 1950s and 60s.
10.There is a water trough at 2 Mile Bore that was used for cattle that would be mustered along the old stock route to the south of the tenement area. The job of my mother and her promised husband was to ensure that there was enough water in the trough for the cattle.
11.There is also a walking track that my grandmother and mother used to follow from Leopold Downs pastoral station through the middle of the northern part of the tenement area right down to “old” Bungardi which is situated in the mining exploration tenement E04/2218.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
12.Brooking Springs pastoral lease is in Bunuba Country. There are a number of Aboriginal communities in and around Brooking Springs where Bunuba people live. Those communities include Bungardi, Junjuwa, Darlngunaya and Burawa/Old Mission. There were also a number of Bunuba communities that were originally proposed to be located at Brooking Springs pastoral lease including Galamanda, Biridu and Wamali. These proposed excisions were later relocated to Leopold Downs (Yaranggi) pastoral lease that is now held by Bunuba Aboriginal Corporation.
13.There are a number of springs and creeks all through the tenement area as well as places Bunuba people call living areas where Bunuba people used to live. During the dry season Bunuba people will acess these places as often as possible to hunt, camp and collect bush tucker and medicine. There is good hunting in many parts of the tenement area. Bunuba people mainly hunt wawanyi or goanna. We find wawanyi all over our country, including inside the tenement area. We only hunt there in the dry season because in the wet season it is too difficult to access.
14.I know that the Brooking family who live at Bungardi regularly go out to Brooking Gorge (Guinyja) in the tenement area to hunt wawanyi and fish mainly for black bream (walngga). They would also collect bush tucker and medicines. I know this to be the case because we have an agreement with the Brooking Springs pastoralist. Other Bunuba families who want to visit Brooking Gorge including inside the tenement area will contact George Brooking first as part of the agreement. I know that this happens because when those families return they will share what they have caught and tell us where they went. I remember people telling me this at the end of the last dry season.
15.There is also pandanus (yarrari) nut found in the tenement area where we crack and eat the seed and it tastes like a peanut and there is also a fruit that grows there we call mandagalgal. I understand that mandgalgal is the only type of plant species that naturally occurs in the Oscar Range reef system.
16.Bunuba people also use Spinifex wax (barrala) that is found throughout the tenement area to treat colds and flus. The barrala is collected from a special type of Spinifex (bininybal). The barrala is grounded up by using a grinding rock like a mortar and pestle and then is applied to any part of the body. For babies we put it on their fontanelle to ward off colds and flus. It can also be rubbed on the chest and acts like Vicks vapour rub. It is also used to “smoke babies”. The wax can also be heated and becomes pliable and acts like a glue to fasten axe and spear heads to the wooden handle.
17.Other food and plant sources that are found in the tenement area include native honey or sugar bag (nhaa) and konkerberry (biriyali) which is a small aubergine coloured fruit and has a beautiful sweet taste. The dried wood and roots of the biriyali tree is used in smoking ceremonies.
18.Bunuba people have had difficulties in the past accessing the tenement area because the previous holder of the Brooking Springs pastoral lease prevented access and at times locked the gates. However, last year as part of the mediation for the Bunuba Consent Determination an agreement was reached with the new holders of Brooking Springs pastoral lease which will pave the way for a better relationship. I was directly involved in those negotiations as a member of the Bunuba negotiating team.
19.Since mid-way through last year we have been seeking to secure a loan through the Indigenous Land Corporation and other sources in order to purchase Brooking Springs pastoral station on behalf of Bunuba people. The reason we are seeking to buy Brooking Springs pastoral station is because it is of particular significance to Bunuba people in terms of its cultural, economic and natural values, but also to ensure that Bunuba people never have to worry again about being denied access to this part of their country. In the meantime the agreement with the new lease holders will create a good relationship and help ensure that Bunuba people can access the tenement area to hunt wallaby, camp and collect bush tucker and medicines and so continue to enjoy this important part of our community life.
20.I last went out to the western part of the tenement area in August last year. There is rock art and cave paintings throughout the Oscar Range including in the tenement area. Last year I went there with my mother and a number of young Bunuba people and an archaeologist. There were two reasons for the trip: to identify the different type of rock art and secondly to show and teach our young people their culture. All these places are “living areas” for Bunuba people and evidence of our prior occupation is truly visible. This inter-generational knowledge transfer is critical to the ongoing maintenance of Bunuba cultural, country, knowledge and community life.
21.The Bunuba Rangers, who are employed by the Department of Environment and Conservation, regularly go out to Brooking Gorge in the tenement area during the dry season to undertake cultural mapping with senior traditional owners like my mother. As the Chairperson of BDAC, I am aware of and involved in these projects that are carried out by the Bunuba Rangers.
22.As well as cultural mapping in the tenement area there are also proposed activities to map the flora and fauna. There are different specifies of plants such as Spinifex in the tenement area that are used as bush medicine by the Bunuba people that need to be preserved as well as endangered species such as a certain type of wallaby (wirirru). The Bunuba Rangers as well as BDAC are currently pursuing funding opportunities in order to implement plans to use appropriate methodologies that combine Bunuba traditional knowledge with western scientific expertise to care for country and manage the fragile ecosystems. As BDAC Chairperson I have been directly involved in preparing these funding applications.
23.We see the Oscar Range as having an eastern end (Ganimbiri), a middle part (Biyayi) and a western end (Mowanbini). In all those parts there are springs which have Bunuba names. Each part of Oscar Range including the tenement area is rich in rock art and cave paintings (Ialani) and is also an area where Bunuba people obtain a living through tourism. For example Jimmy “Dillon” Andrews, a Bunuba person, regularly takes tourists to the Oscar Range including the tenement area during the dry season. There is a place called Jawi or Lilly Hole that is also an important site for us. There is a painting at the top of a tall, sheer cliff at Jawi where Dillon takes his tourists.
24.We have fought very hard and endured many hardships so that Bunuba people can continue to access this part of our country which has been difficult in the past and if exploration companies undertake activities in the tenement area without talking to us first they will cause considerable distress to Bunuba people as well as causing a major interference with this part of our community and social life.
AREAS OR SITES OF PARTICULAR SIGNIFICANCE
25.The ownership of country, or muay, and the Law we follow come from the Dreamtime, from the ngarranggarni. There are many places in Bunuba country, including inside the tenement area, which have great significance to Bunuba people.
26.In the caves along the Oscar Range including in the tenement area there are skeletal remains of Bunuba people. The dead Bunuba people are all those who were massacred over many years of fighting. There are important sites all through this area.
27.There is also an important site in the tenement area called Bamburrurru. Bamburrurru is an site where spirit babies live. If a Bunuba woman goes to that place then there is a chance that she will fall pregnant as a spirit baby will choose her to be born to.
28.When I went to the Oscar Range in the western part of the tenement area to show our young people the rock art and cave paintings I tried to make them understand that this is not just a place but sites where there are stories and knowledge of Bunuba occupation and use that has been passed down through countless generations of Bunuba people. It is important that Bunuba children see that they are part of a bigger story and they have an ongoing connection to Bunuba country. It is also important to teach our young people their obligations and responsibilities to care for our country and protect these special places.
29.The best way to protect these places under our law and white law is to have an agreement with companies who want to explore the area.
MAJOR DISTURBANCE TO LAND OR WATER
30.I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.
31.If exploration companies undertake activities in the tenement area without talking to Bunuba people first they will cause a major disturbance to the whole cultural and natural landscape balance of the area. Their exploration would cause a major degradation to the fragile ecosystem including creeks and springs in the tenement area that we are trying to manage through systematic mapping of its cultural and environmental values as well as endangering the extensive rock art and cave paintings and other significant sites in the area.
32.The springs in the tenement area are sacred to Bunuba people because they were created by powerful beings called Unggudu. If mining exploration companies disturb those springs then they not only place themselves at risk from Unggudu but also place Bunuba people at risk.
33.Under our law anyone who is not Bunuba needs to ask permission before they can go out to our country because we have the responsibility for the safety and wellbeing of any visitors to Bunuba country. If visitors do not follow this protocol they can place themselves at risk of becoming unwell. There are powerful forces at work in the area where there are rock art and cave paintings in the tenement area and it is for the safety of visitors that we require this protocol to be followed.
June Oscar
AFFIRMED at Fitzroy Crossing in the State of Western Australia on the 16th day of May 2013 before [Justice of the Peace # 8271].
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