Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart,

[2005] NNTTA 90

NATIONAL NATIVE TITLE TRIBUNAL

Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, [2005] NNTTA 90 (2 December 2005)

Application Nos:       WO04/136 and WO04/137

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants (WC99/19) (Bunuba native title party) (WO04/136)

and

Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants (WC00/10) (Gooniyandi native title party) (WO04/137)

- and -

The State of Western Australia (Government party)

- and -

Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                   Hon C J Sumner, Deputy President

Place:    Perth
Date:     2 December 2005

Catchwords:   Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – act likely to interfere directly with the carrying on of community or social activities – act likely to interfere with sites of particular significance –act does not attract the expedited procedure.

Legislation:  Native Title Act 1993 (Cth), ss 31, 150, 151, 203BB, 203BC, 237

Aboriginal Heritage Act 1972 (WA), s 5, 17, 18

Mining Act 1978 (WA), ss 8, 20(5), 24, 63

Cases:Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, [2004] NNTTA 31 (7 May 2004), D O’Dea

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner

Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67

Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning/Western Australia/John Charles Booth, NNTT WO99/574, [2000] NNTTA 325 (25 September 2000), The Hon E M Franklyn QC

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1

Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 Hon C J Sumner

Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Wilma Freddie/Western Australia /Stephen Grant Povey, NNTT WO99/882, [2001] NNTTA 162 (19 December 2001), Ms Jennifer Stuckey-Clarke

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC

Hearing date:   4 November 2005

Counsel for the
native title party:                 Ms Sonya Kilkenny, Kimberley Land Council

Representative of the
grantee party:  Mr Paul Askins, Geotech International

Representative of the
Government party:               Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DETERMINATION

1. On 24 March 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E04/1417 (‘the proposed licence’) to Bernfried Gunter Wasse, Paul Winston Askins and James Ian Stewart (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. On 19 July 2004 the following registered native title claimants made expedited procedure objection applications to the Tribunal:

• Banjo Wurrunmurra, Adam Andrews, Johnny Marr, Bradley Williams, Rita Dann, Billy Oscar, Isaac Hale and Danny Marr on behalf of the Bunuba native title claimants (‘the Bunuba native title party’) (WC99/19 – registered from 20 August 1999), 77.75% overlap with the proposed licence (WO04/136); and

• Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants (‘the Gooniyandi native title party’) (WC00/10 – registered from 23 April 2001), 1.99% overlap with the proposed licence (WO04/137).

1. The proposed licence comprises an area of 179.8 square kilometres, 13 kilometres northerly of Fitzroy Crossing in the Shire of Derby-West Kimberley.

2. In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions, if the parties consent, allow a four month period from the s 29 closing date for objections for parties to negotiate an agreement over the grant of the tenement, usually by withdrawal of the objection following agreement between the native title and grantee parties about protection of Aboriginal Heritage. No agreement has been reached despite Tribunal mediation assistance pursuant to s 150 of the Act and several amendments to directions made by consent to allow further time for negotiation.

1. The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the Government party. The other parties were content for a determination to be made on the papers and I have decided that I can adequately deal with the matter in that way in accordance with s 151(2) of the Act.

Legal principles

1. 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.’

1. In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [7]-[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[35]). I adopt those findings for the purposes of this inquiry.

Evidence in relation to the proposed act

1. Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:

• Crown Reserves 43100 and 43101 – Geikie Gorge and Brooking Gorge Conservation Park - 24.4%

• Pastoral Leases - Fossil Downs, Brooking Springs, Jubilee Downs and Gogo - 74.4%

• Vacant Crown land – 0.8%

• Road Reserves – less than 0.2%

Two historical leases are also said to overlap the subject area by 12.2%, however these appear to overlay tenure referred to above.

1. Documents provided by the Department of Industry and Resources establish the Aboriginal communities of Darnku, Darlngun, Bungardi, Junjuwa, Muludja, Kurnangki and Mindi Rardi to be situated within ten kilometres south south west of the proposed licence.  Department of Indigenous Affairs (‘DIA’) documentation provided by both the Government party and the native title parties also reveals six registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) overlapping the subject area:

• Site ID: 12457 – artefact scatters in a rockshelter;

• Site ID: 12458 – artefact scatters;

• Site ID: 12700 – paintings and artefact scatters;

• Site ID: 12701 and 12794 – painting;

• Site ID: 14405 – ceremonial site, repository and cache suggestive of a camp (closed access)

1. Department of Industry and Resources Quick Appraisal documentation indicates that, as of 3 November 2005, one active exploration licence and two active mining leases encroach upon the subject area.  Petroleum exploration permit application EP6/98-9 also overlaps the area of the proposed licence by 89.7%.  Further it is also apparent from the number of ‘dead’ mining and exploration titles (active between 1963 and 2005) that the entire vicinity has been subject to exploration and mining activity and that there is continued interest in the area.  Four ‘dead’ and one active exploration licence have been subject to previous objections by either the Bunuba or Gooniyandi native title parties, four of which were resolved by way of a consent determination that the expedited procedure did not apply, and one finalised by objection withdrawal following agreement.  All but one of the exploration licences subject to objections were eventually granted, indicating that negotiations may have occurred and agreement reached in relation to their grant.

2. The grant of the proposed licence will be subject to the standard endorsements and conditions imposed on the grant of all exploration licences in Western Australia. Additional conditions provide for notification to the pastoral lessee of certain exploration activities, a requirement for written consent from the Minister before mining (which includes ‘fossicking, prospecting and exploring for minerals, and mining operations’ as defined in s 8 of the Mining Act 1978 (WA)) may be undertaken in conservation parks and proposed reserve areas, and restrictions on mining activities in the vicinity of the Geodetic Survey Stations.

Bunuba native title party evidence (WO04/136)

1. The Bunuba native title party has lodged the affidavit of George Brooking Manjanjirr, affirmed 7 May 2005 (‘GB affidavit’).  The evidence is uncontested and I find that Mr Brooking has the authority to speak about Bunuba land matters under Bunuba law. 

2. Mr Brooking’s affidavit is made in the following terms:

   Affidavit of George Brooking Manjanjirr

   ‘I, George Brooking, Pensioner, of Bungardi Community, on Brooking Springs Pastoral Lease, near Fitzroy Crossing on the State of Western Australia, affirm:

   1.My name is George Brooking.  My Aboriginal name is Manjanjirr.  I have junggurra skin, or subsection identity.  I was born in the 1930s at Gurrangaja, on Brooking Springs Pastoral Lease.  Brooking Springs Homestead is located near Gurrangaja.  I am also called Banggardi-wanggu which means, “Banggardi-belonging-to” and Manmarul-wanggu which means “Manmaral-belonging-to”.  My mother was an elder sister of the mother of Stanley Holloway, my cousin.  They were two Gooniyan manayi, or sisters.

   2.I am one of the senior people for the Bunuba Combined Native title Determination Application (WAG 6133/98).  Under our Law I have authority to speak about Bunuba land matters.

   3.I know the area where Paul Askins, James Stewart and Bernfried Wasse, “the grantee party”, have applied for Exploration Licence Number E04/1417, “the exploration licence area”, very well, because I have been shown a map of the application area and I have been to this area many times before.  Gurrangaja, where I was born, is located inside the exploration licence area.  Banggardi, where I live at my outstation with my family, is located inside or very close to the southern boundary of the exploration licence area.  The map I was shown is attached to this affidavit and marked “A”.

   INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

   4.The exploration licence area falls partly within Bunuba country.  Bunuba country is the country where Bunuba language was put by ngarranggarni, in the Dreamtime.

   5.I live with my family at ‘Bungardi Block’, my outstation at Banggardi on Bandaralngarri, a segment of the Fitzroy River.  Banggardi is located inside, or very close to, the southern boundary of the exploration licence area.  Banggardi is an old camping place.  We held Law ceremonies there in the early days, but also recently.  In the last few years, we held Law ceremonies there for winauru or young male initiates, from Yiyili or Louisa Downs and Gorgor, or GoGo Station.

   6.We get fish and hunt in many parts of the exploration licence area.  We hunt wanyjirri or river wallabies, along the River country at Banggardi, at Junygiwa in Brooking Gorge inside the exploration licence area, and all over Gurrangaja country, or Brooking Springs Pastoral Lease, also inside the exploration area.  At Junygiwa, we also hunt freshwater crocodile.  During the station days, we would camp at Junygiwa during ‘Holiday Time’.  People from my community would travel from Ganimbirri or Old Mount Oscar Homestead, just inside the exploration licence area, to Junygiwa and live there during ‘Christmas Time’ when the rains come.  Today, we still visit Junygiwa to camp, fish and hunt there.  We fondly remember the camps of our old people there.

   7.We also call the whole Brooking Gorge area Gunyja.  Gunyja is our name for the bamboo which grows there.  We use this bamboo for the shafts of jinali or spears.  Since the early days, our people have cut gunyja for bamboo spears to trade through wirnan or trading networks.  We used to send gunyja as presents to Ngarinyin people and Napier Downs people.

   8.We fish for balga or Barramundi, mulurru or catfish and jambinbaru or black bream at Junygiwa, Bandaralngarri or a segment of the Fitzroy River which crosses through the exploration licence area and any billabong or creek in the exploration licence area.  There’s deep water at Junygiwa, so it’s very good for fishing there.

   9.We hunt for wawanyi or goanna, minaji or porcupine and wirrayi or hill kangaroo at Jungygiwa.  This is good milha or bush meat.  We find wawanyi all over our country, including inside the exploration licence area.  We use jilamana or rifles today but before we hunted wirrayi with jinali or spears.  We visit Brooking Gorge any time to hunt wirrayi.  It is also a good place to hunt bigbigi or bush pigs.  The manager of Brooking Springs Pastoral Lease doesn’t stop us visiting there.

   10.We collect different types of mayi, or bush vegetable foods, on my country, including the exploration licence area.  For example, there is fruit from the mandarra tree, which grows along any little creek or any walibirri or river, including Bandaralngarri, a segment of the Fitzroy River inside the exploration area.  During Barrangga, or the hot season before the Wet Season, we collect gum from the trunks of mandarra trees for chewing.  At Junygiwa, we collect girndi, a sweat, black plum also found in Gooniyandi country inside the eastern end of the exploration island area, and nguju, a white berry which grows on rocky ground in hills.

   INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

   11.My country, or muay, and the Law we follow come from the Dreamtime, from the ngarranggarni.  I know the exploration licence area very well.  There are many places in my country, including inside the exploration licence area, which are very important and have great significance in the traditional religion of my community.

   12.For example, at Jawiy, a place in Brooking Gorge, inside the exploration licence area, there is a ngarranggarni or important Dreamtime story from the olden days.  That place is jumurrirri or ‘off-limits’ for wiyi or women and buga or children.  There are no allowed to go there.  But us men, including me, are looking after Jawiy.  There are a lot of rock paintings there and the water there is a ‘danger one’.  The paintings are of Wanyjina figures, turtles, crocodiles and you can see men’s fingerprints, too.

   13.Us old people are looking after Jawiy and all other important places in our country.  We dawa-ngarri gurama look-out-gida muay nyriingga.  This means, ‘we are the boss men looking out for our country’.  if mining mob are ‘hard blokes’, they must come and see us and might be we will say ‘ngayi’ or ‘No’.  If they are ‘soft blokes’, we might talk with them and make an agreement.

   14.Gurrangaja, or the Brooking Springs Homestead area, is another very important place in my country which is inside the exploration licence area.  A lot of our old people are buried there at different locations in the Gurrangaja area, including my ngubu or father, my gilagi or father’s father and my ngawuji or father’s mother and other people from my family.  Most of these people are buried ngiamungga or south of the Brooking Springs Homestead area, or inside the exploration licence area.  These graves are not marked, but me and my family know where they are.

   15.There’s also a spring-water, or wungurru garawa at Gurrangaja.  That spring has a ngalja or frog, ngarranggarni or Dreaming.  There used to be an old warulu or coolibah tree there too.  That coolibah tree had ngirrinyi ngarranggarni or Fly Dreaming.  It was the jumu or source for ngirrinyi or flies.  When our old people used to fight others, they rubbed that tree to blind their enemies.  After a while, it became hollow inside and fell over.  We burnt it then to clean it up.  But today, there’s another special tree at Gurrangaja: it’s a really long walarri or white gum tree.   It grows at the wungurru garawa or living water there at Gurrangaja.  There’s a ngarranggarni snake, Galaru, living in that tree.  That Galaru came to that tree.

   16.We used to have Law ceremonies or Wangga including junba or ceremonial dances, at Gurrangaja in the Station days.  There are ceremony grounds there.  These are very important places.  When I was a young man, people brought winauru, or young male initiates, from Lanmaloowa or Fossil Downs Homestead, from Yarranggi or Leopold Downs Homestead, and from Ganimbirri or Old Mount Oscar Homestead to Gurrangaja for Law business.  Today, we hold our annual Wangga or Law ceremonies nearby, at Darlnganaya to the south on Bandaralngarri or a segment of the Fitzroy River, but those old Law camps at Gurrangaja are still very important to me and my community.  They are not marked for malngarri or white people, but we all know where they are.  Mining people must not damage these places.  There are also old Law Grounds at Ganimbirri, inside the exploration licences area, Yarranggi or Leopold Downs Homestead, and at Lanmaloowa or Fossil Downs Homestead.  We usually swap rhe location for our Law business, every Bulurru or West Season.

   17.There is another place inside the exploration licence area called Marrala.  This is an important place where our old people used to collect garringarri or waterlily roots, from the creek there.  The water lilly roots are the same colour as egg yolk and, still today, we roast them in the fire.

   18.Another place called Imaniya is located in the exploration licence area.  Malngarri or white people call this place Peter’s Bore.  There is an old ‘Holiday Camp’ at Imaniya, used by people when they stopped working on stations.  A lot of our young people have been through Wangga and Wolungarri Law ceremonies there are Imaniya.  My two grandfathers, Freddy and Tommy, would lead that Law business.  Today, myself, and other old men lead the Law business on our country.

   19.There is also a wungurru garawa or living water at Imaniya.  It’s dry there right now, because we haven’t had much rain this season.  It’s a living water where that ngarranggarni or Dreamtime snake, Galaru, lives.  That snake is a wungurru or ‘everlasting’ snake, properly.  It is not like any other barlanyi, or snakes in general.  Wungurru snakes always live in springs, there are ngarranggarni or Dreamtime snakes.

   20.Bunygu is an important place which includes a river sandbar on Bandaralngarri, or a segment of the Fitzroy River on the northern boundary of the exploration licence area.  It is ngiamungga or southwards from Danggu or the Geikie Gorge area.  That is a place where Gooniyandi country starts and extends eastwards.  Gooniyandi country never crosses over here.

   21.South of Gurrangaja, on Brooking Springs Pastoral Lease and inside the exploration licence area, is a place called Gilinymana-gigig-guraninya.  This is an important ngarranggarni place in my country.  It includes a little creek near the Geikie Gorge Access Road.  There is an important ngarranggarni story for that place about “where the moon, or gilinymana, been get up”.  We must watch this area carefully because it’s sacred ground.

   22.There is another important place on the exploration licence area, north of Peter’s Bore, called Dindirdin-ngarri.  It is a little billabong where we brought winauru, or young male initiates, for a dinner camp during our Wangga Law ceremonies.  There is an important ngarranggarni or Dreamtime story for that place about dindirjali, a black, bush fowl.

   MAJOR DISTURBANCE TO LAND OR WATER

   23.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 the exploration licence.

   24.Malngarri must ask permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days.  Our old people used to ‘sell’ gunyju or bamboo spear shafts, through wirnan or trading relationships.  Some of the people we trade with were and still are strangers in our country.  That’s why we are frightened if strangers arrive in our country uninvited.  They might get sick or paralysed if they touch any sacred site.  That’s why we are frightened to tell malngarri because they have got their own way.  We know that malngarri don’t follow our Law.  That’s why malngarri have to slow down and come and meet with us.

   25.If stranger-blackfellas come to our country, they don’t muck around because they understand.  They know about blackfella Law.  One malngarri was killed rock climbing on Geikie Gorge, north of the exploration licence area, because he never asked us beforehand.  That’s why we frightened about marlngarri coming to our country because they just jump in anyway.

   26.If malngarri damage a wungurru garawa or living water or a ngarranggarni Dreaming tree, we feel no good.  We feel very sad, like someone close to us has died.  It’s like the same thing for country.  We feel gandayi-yarda yarranggyu muay.  That means: ‘we feel sad for our country’.

   27.If blackfellas damage any ngarranggarni or Dreamings in my country, they would get sick.  We might hold a meeting with him and tell him not to touch that place again.

   28.Malngarri cannot help themselves to our country.  They have got to ask us first. If we say, ‘Ngayi’ or ‘No’, they must leave our country, but if we say, ‘Yuwayi’ or ‘Yes’, they can stay and talk with us.  If they make rarrgi or ‘money’ out of my country, they can maybe give my community a little bit because they are taking something from our country.  If we go digging in malngarri’s country, they will put limba or ‘the police’ onto us.  Blackfellas have no rights then.

   29.If we make an agreement with mining people, we will tell them where they can go on our country.  But they can’t do anything to our ngarranggarni or Dreamings.  If we say ‘Yes’ to drilling, we expect something to come back to us, like help making a road, or getting a motor car, just like if we were trading with partners on wirnan.  This is because we are looking after this country, not strangers.’

Gooniyandi native title party evidence (WO04/137)

1. The Gooniyandi native title party has lodged the affidavit of Stanley Holloway Joowaloorroo, affirmed 16 May 2005 (‘SH affidavit’).  Mr Holloway is one of the persons jointly comprising the applicant for the Gooniyandi native title determination application and deposes to have the authority to speak for Gooniyandi country.  His evidence is also uncontested and I find he has the authority to speak for the registered claimant about the matters raised by the grant of the proposed licence.

2. Mr Holloway’s affidavit is made in the following terms:

   Affidavit of Stanley Holloway Joowaloorroo

   ‘I, Stanley Holloway, Pensioner, for Muludja Community, on GoGo Pastoral Lease, in the State of Western Australia, affirm:

   1.My name is Stanley Holloway.  My Aboriginal name is Joowaloorroo.  I have joonggoorra skin, or subsection identity.  I was born in the 1930s under a yiramba tree at a billabong at Jalnganjoowa, or Old Fossil Downs Homestead, on Fossil Downs Pastoral Lease.  There is an old photograph of me, taken when I was a boy, playing at Jalnganjoowa when my community was holding Wangga Law ceremonies there.

   2.I am a Named Applicant and one of the senior people for the Gooniyandi Combined Native Title Determination Application (WAG 6008/00).  Under our Law I have the authority to speak for Gooniyandi country.

   3.I know the area where Paul Askins, James Stewart and Bernfried Wasse, “the grantee party”, have applied for Exploration Licence Number E04/1417, “the exploration licence area”, very well, because I have been shown a map of the application area and I have been to this area many times before.  Jalnganjoowa, where I was born, is about three kilometres east of the exploration licence area.  The map I was shown is attached to this affidavit and marked “A”.

INTERFERENCE WITH COMMUNITY OF SOCIAL LIFE

4.    The exploration licence area falls partly with Gooniyandi country.  Gooniyandi country is the country where Gooniyandi language was put ngamoo-noonggoo, in the Dreamtime.

5.    Muludja, the community where I live with my family, is about one kilometre ngilanggoo, or east, from the exploration licence area.

6.    With my family, I get lots of different manyi or wild vegetable food, maa or bush meat and gawi, or fish, from my country near Muludja, including the exploration licence area.

7.    We often hunt thirriwi or hill kangaroo, barlanyi or snakes such as joonggoorra or olive python and yilimi or black-headed python and manaji or porcupine from the exploration licence area.  We catch minaji during moonlight time, by looking for its tracks.  We sometimes get thirriwi early in the morning.  Thirriwi like to live in hilly or rocky country.  We don’t get many wawirri or plains kangaroos, here on the exploration licence area: maybe on one or two every now and then.  We catch joonggoorra and yilimi any time of the day.  We also hunt wawanyi or goanna.  That’s our favourite one: man can’t go without that wawanyi.  I’m an old man now, so when we go out hunting, my grandsons do the catching for me. 

8.    Many Gooniyandi people use that exploration licence area to hunt and get manyi.  We use that exploration licence area to teach our young people how to hunt and get manyi.

9.    We get ngarlinyi, or bush honey, from walarri or white gum tress, on the exploration licence area.  Sometimes we also get ‘leaf sugarbag’ from the leaves of birlindi, another type of white gum tree.  In the old days, we’d soak the leaf sugarbag in a coolamon of water. Nowadays, we use a billycan.  When the leaf sugarbag has been soaked, we drink the water like cordial.

10.We get many kinds of manyi, or vegetable foods, on the exploration licence area, such as birriyali, or Conkerberry fruit, girndi, a type of sweet, black berry, and gulamang, a white berry.  On spring-country, we sometimes dig out boornga, a round type of bush potato.

INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

11.My country, or riwi, and the Law we follow come from the Dreamtime, ngamoonoonggoo-nhingi.  I know the exploration licence area very well.  There are many places in my country, including inside the exploration licence area, which are very important and have great significance in our traditional religion.  Under our Law we have to look after these places.  If anything happened to those places something bad could happen to me or my family.  We could get sick or even die.

12.Yawalja, is an important place inside the exploration licence area.  There is a spring and camping place since the time of our old people.  Two creeks flow from the spring: one creek runs boorroonggoo or north to Barndaralngarri, or a segment of the Fitzroy River, and another flowing ngiwawoo or south to Mayalngar or a segment of the Margaret River.  On the rocks nearby, there are paintings, or ngamoo-noonggoo ngarrag-ngarrag, of Waliyarra, a Dreamtime being.  Nobody is allowed to look at hose paintings.  Under our Law, our old people would follow the tracks of any strangers and if they found them, kill them, because they do not belong to our country.  Those paintings at Yawalja are ngarranggarni or dreamings.  Under our Law, properly, nobody can take a photo of those paintings, or renew them up, or damage them.  We just have look after those paintings.

13.Mining companies are not allowed to drill or dig up the ground there at Yawalja.  We have never told malngarri or white people, where that place is.  But one time, some mining mob wirrij, or dug the ground, at Yawalja, several years ago.  Those malngarri never came and asked us before they did this.  They never came to meet my community to ask permission.  This is against our Law.  When this happened it caused biggest upset for me and all Gooniyandi people.  Strangers should always check with senior owners like me before doing anything on my country.

14.Another important place on the exploration licence area is Marlngaya.  Marlngaya has been a camping place for a long, long time.  You can see old ngawaya, or mussel shells, there.  Marlngaya is liyani or west and ngiwawoo or south from Yawalja, on the warlibirri or river, Mayalngar, a segment of the Margaret River.  George Brooking knows this place too.  Our mothers were sisters: his mother Daisy was older than my mother, Lily Dagoodi.  We used to hold joonba or ceremonial dances there at Marlngaya, in the early days.  When Gooniyan people have been live on their own at Marlngaya, Bunuba people used to visit us for corroborees there.  We always visit that place, but recently, the road has not been good.

15.Just north of Lanmaloowa, or Fossil Downs Homestead, is another important Dreaming place for jiwilyoogoo or ducks.  This place is called Gamanybunygayi.  Rocks there are those Dreamtime ducks.  Gamanybunygayi is probably just inside the eastern boundary of the exploration licence area.  Mining people can’t drill or touch that place.  There’s a secret place and a camping place there at Gamanybunygayi.  My old people told me that when I was a young man.

16.Inside the exploration licence area, ngilanggoo or east of Peter’s Bore on Brooking Springs Pastoral Lease, between Bandaralngarri, or a segment of the Fitzroy River, and Mayalngar or a segment of the Margaret River, there is a goorroola nyamani or large billabong.  Since the early days, this has been a big camping place, a joonba place or dance ground, and a ‘talk-talk place’ where Gooniyandi and Bunuba people would meet one another.  This place is an important ngamoo-noonggoo or Dreamtime place.  Recently, the station manager has put a fence up on the track to this billabong, making it difficult to get there.

17.Ganayirri, our name of the Junction Yard area on Mayalngar or a segment of the Margaret River, is located on the southern boundary of the exploration licence area.  It is a special place for me and my community.  Once I found a goordoo or grindstone at Ganayirri.  I keep that goordoo at my home in Muludja Community, to remember our old people who camped at Ganayirri.  I tell my kids not to break it.

MAJOR DISTURBANCE TO LAND OR WATER

18.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 the exploration licence.

19.Malngarri, or white people, should see me and other old people in my community first before doing anything on my country.  They don’t know my country because they are strangers, or gamaloowa.  They should see old people like myself, who are dawa-ngarri.  Dawa-ngarri are what white people call ‘traditional owners’.  In blackfella Law, we are the bosses for our country.  I belong to this country including Mayalngar, or the Margaret River, Ganayrri or the Junction Yard area which is located inside the exploration licence area, right up to Maanjoowa, or Margaret Gorge, east of the exploration licence area.

20.If strangers come to do something in our country and don’t ask our permission first, we will ngaliny, or ‘sing’ them.  Under our Law, if stranger-blokes, gamaloowa, come to our country, with different language, they have to be very careful.  They night get killed if they do something wrong in our country.  Only malngarri, white people, gamaloowa yooloo naji or ‘those strange men’, started his idea of everyone going everywhere.

21.In our Law, if any strangers damage paintings or special places on our country, they must given us something back, like boomerangs, coolaman or maa, meat.  They have to square the trouble with us, the dawa-ngarri.  Mining people must do the same thing if they want to do things on our country.

22.Mining people can’t enter my country without asking me and my community first.  Mining people don’t know where our secret places area.  They must ask the right people, all the dawa-ngarri, the traditional owners like Jananggoo Butcher Cherel, myself, our sons and our grandchildren, including my gilagi or grand-daughter, Lidiyala Helen Malo, who is the Co-Ordinator for Muludja Community where I live.’

1. I note that Mr Holloway and Mr Brooking depose to have relatives in common (they are said to be cousins) and that Mr Holloway makes reference to both his association with Mr Brooking (para 14, SH affidavit) and with the Bunuba people in general.  Further, each native title parties’ contentions relies upon the others for the purposes of the objection inquiry (para 2, Statement of Contentions of Native Title Party).  It is clear that the two native title parties have close associations and close familial ties and I am prepared to infer that locations and sites mentioned in evidence are of interest to both native title parties.

Community or social activities (s 237(a))

1. For the objections to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title parties.

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and ss 24(3) – 24(7) in relation to reserve land, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.

3. The evidence establishes that there are a number of Aboriginal communities in the vicinity of the proposed licence area, although it appears that the majority are situated around Fitzroy Crossing, which Tribunal mapping reveals to be some seven kilometres south westerly of the subject area.  Mr Brooking deposes to live at ‘Bungardi Block’ (para 5, GB affidavit), which he says is his outstation at Banggardi.  Bungardi community appears to be approximately five kilometres south of the proposed licence.  Mr Holloway deposes to live at Muludja community (para 5, SH affidavit) which is situated approximately one kilometre south easterly of the south easternmost point of the proposed licence area.

4. Both deponents give evidence of regular fishing, hunting, collecting, camping and educative activities in and around the proposed licence area, including throughout the Brooking Springs pastoral lease, at Brooking Gorge, and water courses of all descriptions bisecting the subject area.  While Mr Brooking’s evidence focuses on the Brooking Gorge area and segments of the Fitzroy River and associated creeks, and Mr Holloway’s evidence refers to segments of both the Fitzroy and Margaret Rivers, it is apparent that each claim group is accustomed to visiting the other’s country during foraging expeditions (para 10, GB affidavit).  Further it is evident that while methods of hunting and gathering may have altered over time (for example, at para 9 George Brooking deposes that ‘we use jilamana or rifles today’ rather than jinali or spears) such activities are still regularly practised, and where age limits the extent of activities, such as is the case with Mr Holloway, ‘my grandsons do the catching for me’ (para 7, SH affidavit).  Both deponents talk of hunting wawanyi (goanna) and appear to particularly value that meat, but other meat sources such as kangaroo (various species), bush pig, porcupine and crocodile are also mentioned.  The evidence also establishes that areas in the vicinity of the proposed licence area are used for traditional ceremonies (including initiation) (para 5, GB affidavit).  I find that both native title parties have historically engaged in hunting, fishing, gathering and camping activities on and around the proposed licence area, and those activities continue today.  The activities of the Gooniyandi claimants extend beyond their claim area including to the area of the Bunuba claim and the proposed licence area.

5. I must now assess whether the grant of the proposed licence is likely to interference with the carrying on of the social and community activities evidenced above.  The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title parties’ community or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]).

6. In this case there is historical and current pastoral and mining activity which could have this effect but the native title parties’ evidence establishes that despite restrictions which may have been caused by these activities the native title party still carry on a broad range of social and community activities with a high level of intensity.  The Tribunal must also have regard to the fact that the native title parties’ access to the area would be only limited and temporary while exploration is taking place.  Often, given the nature and extent of the native title parties’ community or social activities, the Tribunal has found that because of its relatively limited nature exploration activity would not directly interfere with these activities except in an incidental and insubstantial way.  However, each case must be evaluated on its merits, taking account of the particular facts.  In my view, despite the factors just referred to, the nature and intensity of the community and social activities are such that there is likely to be direct interference with them by the grant of the proposed licence and exploration activities undertaken.  The evidence of Mr Brooking and Mr Holloway establishes that contemporary activities in the subject area occur regularly throughout the year and at all times of the day (para 7, SH affidavit, paras 6, 9 and 10, GB affidavit).

7. George Brooking deposes that the manager of Brooking Springs pastoral lease ‘doesn’t stop us visiting [Brooking Gorge]’ (para 9, GB affidavit).  Mr Holloway deposes (para 16, SH affidavit) that, in relation to a meeting place for Gooniyandi and Bunuba people, ‘recently, the station manager has put a fence up on the track … making it difficult to get there.’  This is the only reference to access restrictions but the evidence is that the level of activity of hunting fauna and gathering flora has not been restricted by access restrictions imposed by third parties.

8. In relation to the native title parties’ evidence that the grant of the proposed licence is likely to cause spiritual and emotional distress, and thereby interfere directly with the carrying on of social and community activities, the Tribunal accepts Mr Holloway’s evidence (para 11, SH affidavit) relating to the responsibility of claimants to look after significant places and that failure to do so properly will lead to fear of misfortune, illness or death.  Similarly, Mr Brooking’s evidence (para 26, GB affidavit) indicates that the community suffers if areas of significance are damaged: ‘we feel very sad, like someone close to us has died’.  However, the Tribunal has dealt with similar situations in other determinations (Walley  v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at [12]): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’ I adopt Deputy President Franklyn’s findings for the purposes of these inquiries and have not had regard to this aspect of the evidence. The evidence of actual physical activities is sufficient to uphold the objection without taking account of the fears which are provoked by the grant or feelings of sadness which would arise from exploration activities on the land but which do not translate into interference with the community or social activities of the native title parties.

Sites of particular significance (s 237(b))

1. The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title parties in accordance with their traditions.  There are six sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title parties over the area of the proposed licence or in the vicinity.  The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.  The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.

2. The Government party relies on ss 5, 17 and 18 of the Aboriginal Heritage Act to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particularly significance.  The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal (I adopt the findings in Walley at [50]-[51]). The Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]) found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely but still to be decided on particular facts (see Wilma Freddie/Western Australia /Stephen Grant Povey, NNTT WO99/882, [2001] NNTTA 162 (19 December 2001), Ms Jennifer Stuckey-Clarke at [49]). More recently in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [70]-[71], I found that the combined effect of the Government party's revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) which is sent out to each grantee of an exploration or prospecting licence and increase in penalties under the Aboriginal Heritage Act was to enhance the effectiveness of the regulatory regime for the protection of Aboriginal sites.  I adopt those findings for the purpose of these inquiries.  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.

1. Mr Brooking deposes that the following sites or areas of particular significance to the Bunuba people exist within or in the vicinity of the proposed licence:

• Jawiy – located in Brooking Gorge, within the proposed licence area, and associated with an ‘important Dreamtime story from the olden days’ and rock paintings.  Mr Brooking deposes that this area is ‘off limits’ to women and children (para 12, GB affidavit);

• Gurrangaja – located in the Brooking Springs Homestead area, within the proposed licence area, which was an important area for Law ceremonies, attracting male initiates from as far a field as the homesteads associated with Fossil Downs, Leopold Downs and Old Mount Oscar (para 16, GB affidavit).  George Brooking also deposes that there are burial grounds at Gurrangaja, (para 14 - ‘most of these people are buried … south of the Brooking Springs Homestead area’) and Frog and Fly Dreamings associated with the area;

• Marrala – an important place inside the exploration area from where old people used to source waterlily roots from the creek (para 17, SH affidavit).  No specifics as to the location of this area are provided although Tribunal mapping shows a Marrala burial site about three kilometres south of the subject area;

• Imaniya – also known as Peter’s Bore and another location for Law ceremonies as well as a ‘Holiday Camp’ for those people who have ceased to work on stations.  Mr Brooking also deposes that it is the location of the Dreamtime snake, Galuru.  According to Tribunal mapping, Peter’s Bore is no more than one kilometre south of the proposed licence area;

• Bunygu – a river sandbar in the Fitzroy River on the northern boundary of the proposed licence, just south of Geikie Gorge.  Mr Brooking deposes that this area also marks the commencement of Gooniyandi country to the east.

• Gilinymana-gigig-guraninya – incorporating a creek near the Geikie Gorge access road which appears to be immediately east of Brooking Springs Homestead, and considered by Bunuba people to be ‘sacred ground’ (para 21, GB affidavit);

• Dindirdin-ngarri – a billabong north of Peter’s Bore where male initiates were taken for ‘dinner camp’.  This billabong is also associated with an important Dreamtime story about a black bush fowl (para 22, GB affidavit).  Tribunal mapping shows a waterhole north of Peter’s Bore and inside the proposed licence area, which may be this site.

1. Whilst the location of each site is not identified precisely in all cases it is apparent that the north western portion of the proposed licence area (Brooking Gorge Conservation Park) and the central south eastern portion where the Fitzroy River crosses through the proposed licence contain a number of sites considered of significance to the Bunuba people.  The location of sites registered with the DIA correspond with the sites mentioned above and the evidence also establishes a number of sites in addition to those registered.

2. In relation to Gooniyandi native title party evidence, Mr Holloway provides information in relation to the following sites:

• Yawalja – said to be a spring with two creeks flowing from it, a camping area, and the location of Dreamtime paintings (para 12, SH affidavit).  Mr Holloway describes the area as being between the Fitzroy and Margaret Rivers, which would place it in the eastern portion of the proposed licence.  Mr Holloway expresses concern about this area, which has been previously damaged by miners – ‘when this happened it caused biggest upset for me and all Gooniyandi people’;

• Marlngaya – this camping place and corroboree ground is said to be west and south of Yawala, on the Margaret River which would place it on the southern boundary of the proposed licence.  Mr Holloway deposes that Marlngaya is also known by George Brooking and other Bunuba people (para 14, SH affidavit);

• Gamanybunygayi – ‘another important Dreaming place’ for ducks, and a secret place and a camping site, ‘probably just inside the eastern boundary of the exploration licence area’ (para 15, SH affidavit).  Mr Holloway states that ‘mining people can’t drill or touch that place’;

• goorroola nyamani (large billabong) – a ‘talk-talk place’ for Gooniyandi and Bunuba people to meet, a big camping site and dance ground and ‘an important ngamoo-noonggoo or Dreamtime place’ (para 16, SH affidavit).  I infer from the location description provided by Mr Holloway that this place may be close to or even part of Marlngaya;

• Ganayirri – the Junction Yard area on the Margaret River, which again would place it on the southern boundary of the subject area, possibly close by Marlngaya (para 17, SH affidavit).  Mr Holloway deposes that this site is a ‘special place for me and my community’ and that he has found a grindstone there.

1. From the descriptions provided the majority of the abovementioned sites are in the southern and eastern portion of the tenement area, which is bisected by the Gooniyandi native title claim.  DIA sites information supports this finding.

2. The evidence provided by both native title parties in relation to sites is uncontested and I accept that it establishes the existence of a number of sites in the area, most of which are of particular significance to the native title parties.  I note that the portion of the Gooniyandi native title claim overlapping the proposed licence is small (less than 2.00%, and possibly even less again if the underlying active mining lease M04/283 is to be excised from the area granted), however, it is clear that registered sites occupy this portion of affected land, and the general area of significance to the Gooniyandi people stretches west, beyond the official boundaries of the claim area, to the Geikie Gorge/Fitzroy River region, as stated in George Brooking’s affidavit (para 20).

3. The affidavits of Mr Brooking and Mr Holloway evidence concerns about mining companies entering Bunuba and Gooniyandi claimed land without permission and consultation with the traditional owners.  Mr Holloway says that ‘if anything happened to those places something bad could happen to me or my family’ and speaks of the time when miners disturbed the ground at the area known at Yawalja: ‘those malngarri [white men] never came and asked us before they did this.  They never came to meet my community to ask permission.  This is against our Law. …. Strangers should always check with senior owners like me being doing anything on my country.’ (para 13, SH affidavit).  Mr Brooking deposes that Bunuba people are frightened of strangers entering the country uninvited because ‘malngarri [white men] … have got their own way.  We know that malngarri don’t follow our Law. That’s why malngarri have to slow down and come and meet with us’ (para 24, GB affidavit).  The evidence is corroboration of the fact that the sites are of particular significance to the native title parties in accordance with their traditions.  I am satisfied that the area is relatively rich in Aboriginal sites.

4. I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act make it unlikely that there will be interference with any areas or sites of particular significance. The grantee party has not submitted evidence on its own behalf but stated during the Listing Hearing of 4 November 2005, that it had tried to reach an agreement over heritage protection, including participation in Tribunal assisted mediation pursuant to s 150 of the Act, but had ultimately failed to do so. Mr Paul Askins, representing the grantee party, further elaborated that the grantee was willing to sign an agreement to protect Aboriginal Heritage, but was not prepared to execute one in the form proposed by the representative for the native title parties. I am satisfied that the grantee party is aware of its responsibilities under the Aboriginal Heritage Act.  However, the grantee party has provided no indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).

5. Taking all these factors into account and particularly the nature and extent of the sites of particular significance which have been identified and that the area of the tenement is site rich I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act between the parties take place and agreement is reached about the doing of the future act, or in the absence of agreement the issues relating to the effect of the grant on the registered native title rights and interests are fully explored by way of arbitral inquiry (ss 35, 38). The risk of interference can be exemplified by the numerous burial sites (para 14, GB affidavit) which are undoubtedly sites of particular significance to the Bunuba native title party. Unless there is close liaison between the native title parties and grantee party through negotiations and agreement there is a real risk of interference with them.

6. My findings in relation to ss 237(a) and (b) are consistent with those made in two other objection inquiries by different Tribunal members in the Kimberley region namely:

• Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/ Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Mr Daniel O’Dea (the exploration licences were 104 kilometres south west of Halls Creek and involved the Gooniyandi claimants); and

• Scotty Birrell, Packer Brockman, May Butcher, Edna Skeen, Frank Sampi, Nancy Lee and Pauline Manning/Western Australia/John Charles Booth, NNTT WO99/574, [2000] NNTTA 325 (25 September 2000), The Hon E M Franklyn QC (the prospecting licence was 24 kilometres east of Halls Creek).

Major disturbance (s 237(c))

1. In view of my findings above, it is not necessary for me to examine the evidence in relation to this section, nor to make a finding as to whether the act is likely to involve major disturbance to land and waters.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E04/1417 to Bernfried Gunter Wasse, Paul Winston Askins and James Ian Stewart, is not an act attracting the expedited procedure.

Hon C J Sumner
Deputy President
2 December 2005