Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Tetra Resources Pty Ltd
[2012] NNTTA 92
•20 August 2012
NATIONAL NATIVE TITLE TRIBUNAL
Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Tetra Resources Pty Ltd, [2012] NNTTA 92 (20 August 2012)
Application No: WO11/116
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 Bunuba (WC99/19) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Tetra Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 20 August 2012
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 act likely to cause major disturbance to land or waters – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), ss 20(5), 63
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:Banjo Wurrunmurra and Others/Western Australia/Monte Justin Ling and Others [2008] NNTTA 127
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99
Joseph Roe and Others/Western Australia/Kimberley Quarry Pty Ltd [2008] NNTTA 118
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others /Western Australia/Derek Noel Ammon [2006] NNTTA 65
Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60
Paddy Neowarra and Others/Wilfred Goonack and Others/Western Australia/Swancove Enterprises Pty Ltd [2007] NNTTA 11
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340
Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia and Another (2001) 108 FCR 442
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Ward and Others v State of Western Australia and Another (1996) 69 FCR 208
Wilfred Goonack and Others/Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA
Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30
Representatives of the Mr Reece O’Brien and Ms Ania Maszkowski, Kimberley Land
native title party: Council
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representatives of the Mr Mark Borman, Terra Assets
grantee party: Mr Leo Pilapil, Tetra Resources
Ms Caitlin Limpitlaw, KHC
REASONS FOR DETERMINATION
On 6 October 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2013 (‘the proposed licence’) to Tetra Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence is situated in the Shire of Derby-West Kimberley. It is 225.63 square kilometres in size and located 83 kilometres north of Fitzroy Crossing. The native title claim of the Bunuba People (WC99/19-registered from 20 August 1999) overlaps 30.87 per cent of the proposed licence. No other registered native title claims or determinations overlap the proposed licence.
On 7 February 2011, an expedited procedure objection application was lodged with the Tribunal by Banjo Wurrunmurra and Others on behalf of Bunuba (‘the native title party’) in relation to E04/2013.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Parties negotiated in relation to a draft heritage agreement for several months and directions were extended a number of times to enable negotiations to continue. During negotiations: the Department of Mines and Petroleum (‘DMP’) provided evidence to the Tribunal and other parties on behalf of the Government party on 29 June 2011; the State Solicitors Office provided the Government party’s statement of contentions on 10 August 2011; and the native title party provided a statement of contentions and supporting evidence including an affidavit of Mr George Brooking (Manjanjirr) on 20 September 2011.
On 24 May 2012, the grantee party requested that the matter proceed to inquiry. On 23 June 2012 I was appointed by the Deputy President John Sosso as the Member for the purpose of conducting the inquiry. Directions were amended, at party’s request, allowing the opportunity for parties to provide any further contentions or evidence for the matter by 2 July 2012.
The State Solicitor’s Office provided the Government Party’s Response to the Objectors’ Statement of Contentions (‘Response’) on 5 July 2012, outside of the compliance date. Taking into account s 109(1) of the Act, I accept the submission and remind parties that documents submitted outside compliance dates may not always be accepted and that it is preferable for reasons to be provided for consideration in such circumstances.
No contentions or evidence were submitted by the grantee party.
On 20 July 2012, the Tribunal circulated a map to parties, prepared by the Tribunal Geospatial Unit for the purpose of the inquiry, and subsequently a further map on 30 July 2012 which identified Aboriginal communities within and near the vicinity of the proposed licence. In both instances, parties were invited to make comment on the map, should they wish to do so. On 24 July 2012, the Government party submitted a document titled Government Party Response to Tribunal Typographical Map, and on 1 August 2012, submitted a document titled Government Party Response to Tribunal’s Amended Typographical Map.
All parties agreed the matter could be determined ‘on the papers’. As such, the inquiry is proceeding to be determined ‘on the papers’ as per s 151 of the Act and I am satisfied that it can be adequately determined in this way.
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others /Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41] (see also Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027; Parker v Western Australia and Others (2008) 167 FCR 340.
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at [588]-[589] where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
Evidence in relation to the proposed act
The Government party has provided documents including: a statement of contentions; tengraph plan with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA); copies of the tenement application; copies of the proposed endorsements and conditions of grant and tengraph quick appraisals.
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
· Indigenous Owned Lease 3114/914 (Millie Windie) at 50.1 per cent;
· Three Pastoral Leases (K571500 – ‘Leopold Downs’; J961644 – ‘Glenroy’; and J961643 – ‘Mt House’) at 30.9, 11.5 and 7.5 per cent respectively;
It appears that the Mt House, Glenroy and Mille Windie leases are not within the claim/proposed licence overlap and it is only the Leopold Downs pastoral lease which is within that overlap portion.
Government party documentation establishes that one dead tenement was previously granted which overlaps the proposed licence. The dead tenement was an exploration licence and was granted in 1996 and surrendered in 1997. The dead tenement overlaps the proposed licence by 0.4 per cent. It is not clear from the available information whether that dead tenement was within the claim/proposed licence boundary. Even if it was wholly within that overlap portion, the encroachment was of a relatively minimal extent.
The quick appraisal document shows that services affected include the Aboriginal community of Munmarul; a survey station (Pittard); a track; some cliffs/rockridges etcetera; some major water courses (including the Adcock river); and a number of minor water courses (including Pandanus Creek and Homestead Creek) and a significant number of spring/soak/rock holes.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no DIA recorded sites within the proposed licence. Tribunal mapping indicates that there is one Aboriginal community, Munmarul, located within the proposed licence (but not within the proposed licence/claim overlap), and four Aboriginal communities located within a 50 kilometre radius of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licences and of certain exploration activities (Conditions 5-6), and that there be no interference with Geodetic Survey Station (Pittard), and mining within 15 metres thereof be confined to below a depth of 15 metres from the natural surface (Condition 7).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Government party contentions (at 5(d)) state that the Government party will place an additional condition regarding placing a Regional Standard Heritage Agreement (RSHA) on the grant of the proposed licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Bunuba, the applicants in Federal Court application no. WAD6133 of 1998 (WC99/19), such request being sent by pre-paid post to reach the Licensee’s address, Level 3, Suite 12, 99-101 Francis Street, Northbridge, WA, 6003 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Bunuba the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups (eg the Goldfields/South West/Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council RSHA) and offered by the Kimberley Land Council.’
It is my understanding that while RSHA’s are endorsed by peak industry groups, they are not offered by the Kimberley Land Council.
Evidence provided by the grantee party
It appears that the grantee party did not attend a number of the conference’s leading up to this objection determination, or did not provide instructions to representatives, and was placed on the non-participatory grantee party list for particular attention. While it is not clear the precise reason for non-participation of the grantee party, it is important that any grantee party should ensure that their representative, should they choose to engage one, is fully briefed on the grantee party interests, has a clear understanding of their role and responsibilities and the extent to which the grantee party requires representation.
In this matter, the grantee party did not provide any submissions or contentions apart from those outlined in the DMP documentation provided to the Tribunal on 29 June 2011. That documentation appears to be an outline of the grantee party’s proposed exploration activities, which indicated that the target mineral for the proposed licence is uranium. The proposed work program included:
Acquisition of airborne magnetic surveys
Re-processing of data and a full geophysical analysis and report
Geological field trips
Soil and rock sampling
Analysis of the samples
Localised geophysical surveys over the prospective target
There appears to be no offer to enter into a RSHA by the grantee party contained in the DMP materials or any other materials provided by the grantee party, although I note the Government party’s intention to impose such a condition, should the native title party request, as outlined above in this determination.
Evidence provided by the native title party
The evidence provided by the native title party comprises the affidavit of Mr George Brooking (Manjanjirr) (‘GB Affidavit’) made in the following terms:
‘I, George Brooking, pensioner, of Bungardi Community, on Brooking Springs Pastoral Lease, near Fitzroy Crossing in 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 Manmaral-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 (WC99/19).
3.I know the area where Tetra Resources Limited, “the grantee party”, have applied for Exploration Licence Number E04/2013, “the exploration licence area”, very well, because I have been shown maps of the application area. The maps I was shown are attached to this affidavit and marked “A” and “B”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The exploration licence area falls within Bunuba country. Bunuba country is the country where Bunuba language was put by ngarranggarni, in the Dreamtime. It is Bunuba Country all the way from the Leopold Ranges down to Diamond Gorge. Ord Gap, McKunrick Hill, its all Bunuba Country.
5.There is a station close to the tenement area owned by Bunuba people called Milliwindi station. Bunuba people run cattle on that station.
6.We go out to the tenement area about once a month. My sister, Emily, and my nieces Judith, Sandra and Karen also take their families out there. They often go by themselves with their children, they go camping out there.
7.Old people used to do their Law and ceremony out there. We still take our young people out there for Law ceremony.
8.There is good hunting and fishing in many parts of the exploration licence area. We hunt wawanyi or goanna and wirrayi or hill kangaroo and crocodile [on] the exploration licence area. This is good milha or bush meant. We find wawanyi all over our country, including inside the exploration licence area. We use jinali or spears to hunt the fish and animals. We only hunt there in the dry season because in the wet season we can’t get there.
9.There is good fishing in the tenement area in Ward Gap and Diamond Gorge. We fish there, mainly for Black Bream. Young people also go there to hunt. My sister and nieces go there often. We also fish in Sandy Creek which is just to the south of the tenement area.
10.We collect different types of mayi, bush tucker and bush medicines on my country, including the exploration licence area. Inside the exploration licence area we collect the salty bush plums to eat.
11.We also collect bush medicine from the area. You can get some bush medicines like lemongrass that you boil up and drink. It’s good for your chest. You can put it in a bucket and shower in it as well. It has a strong smell.
12.If the mining companies come here, it will interfere with some of our community life. If they come to do drilling, we won’t be able to camp there anymore and it will affect how we carry out our law and ceremony, we can’t have our ceremonies or teach our young people they way we want to if the explorers are there.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
13.My country, or muay, and the Law we follow come from the Dreamtime, from 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.
14.There is a lot of rock art which is special to us in the tenement area. There are rocks and songlines which run right through the middle of the tenement area from the north to the south that are special to our people. They are Dreaming sites, and they are full of stories. There is a ngarranggarni or important Dreamtime story from the olden days about 2 dogs that travelled the land. The dogs travelled from Fairfield, they went to Fairfield homestead, across the exploration licence area, Windjana, Mount Bell up to the Napier Range. When they reached the Napier Range it wasn’t their language anymore so they had to stop there. They stayed there, and you can see them there in the Napier Rangers at Balalana, they are rock formations. We take young people there and tell them the story.
15.These places are important to us. Our old people lived in the tenement area, and they told us to remember the stories and pass them onto the young people. We don’t want like people getting too close to that area.
16.In the limestone caves at Oscar Ranges you see Culloden, dead people, bones and heads. Very important sites to us. The dead people are all those who were massacred over many years of fighting. There are important sites all through there this area.
17.There are a lot of rock paintings and cave paintings in and around in the middle of the tenement area. There are a lot of special Dreamtime stories but they are sacred, they are just for Bunuba men so I can’t tell you. There are areas where women are not allowed to go, and not allowed to look at. There are women’s areas too, I don’t know about them. Old people told us to look after that Country. We don’t want to upset them.
18.We are looking after all the important places in our country. We keep an eye on the paintings to make sure that nobody damages them.
19.We are passing on these stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and look after it. We dawa-ngarri gurama look-out-gida muay nyiringga. 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.
20.We have Law ceremonies on and around the exploration license area. There are ceremony grounds there. These are very important places. They are not marked for malngarri or white people (literally, “red having”), but we all know where they are. Mining people must not damage these places.
21.We still visit these places. Last year on NAIDOC day, we took 4 boys and four girls out there for Law and culture, to teach them about the food and medicine.
22.The limestone caves are very important place for us, the whole area is a special place including in and around the exploration license area. There are old people buried in the rock in and around the area and there are cave paintings all throughout the rocks. Malngarri have to ask somebody to go up there. It is generally a place where people should not go.
23.If exploration companies come here, it will interfere with our special sites. If they drill, they might damage some sites. In the past, companies have come to our country and done damage to sacred sites, and we have only seen the damage after it has happened which is too late. This is why we need to tell them first where they can and can’t go.
MAJOR DISTURBANCE TO LAND WATER
24.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.
25.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 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.
26.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law. That’s why we frightened about malngarri coming to our country because they just jump in anyway.
27.If malngarri damage a site, artefact or living water or a ngarranggarni or Dreaming tree, we feel very upset you know. We feel very sad, like someone close to us has died. It’s like the same thing for country. We feel gandayi-yarda yarranggu muay. That means: ‘we feel sad for our country’.
28.If blackfellas damage any ngarranggarni or Dreaming in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again. But I can’t remember this happening.
29.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 our land. If we go digging in malngarri’s country, they will put limba or ‘the police’ onto us. Blackfella have no rights.
30.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, and helping my community. This is because we are looking after this country, not strangers.
31.We don’t like the explorers coming out to country, but we know that we can’t stop them. We just want to make sure that if they come, they get permission and don’t damage the sites. We are worried because in the past we have had companies coming to take samples from special sites and from the rock places. This is why we don’t want explorers coming by themselves, we want to accompany them.
The evidence of Mr Brooking is uncontested and I accept it. Mr Brooking states that he is one of the ‘senior people’ for the Bunuba native title claim. I accept that Mr Brooking has authority to speak on behalf of the native title party.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of 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 v Western Australia and Another (2001) 108 FCR 442 (‘Smith’) at [23]. The Government Party Response (at 6(g)) suggests that ‘given the limited nature of the rights held by an exploration licence, there is little prospect of access being prevented in any substantial way. An exploration licence does not carry a right to control access to land. At most, the slight risk that the grantee party, exercising its full rights under the proposed tenement, might physically be in the way of a member of the Native Title Party in relation to the small area of land where they are operating on any given day is not substantial enough to constitute interference in the s237(a)NTA sense’. I agree with the contentions of the Government Party in this respect. Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith at [23]. The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’) at [29]-[30], Member Sosso outlined that:
‘The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.’
On the basis of the limited information available to the Tribunal from the grantee party, it appears that their program of works is likely to be of a non-intrusive nature.
The Tribunal’s amended topographical map locates one Aboriginal community within the proposed tenement, although not within the native title party’s overlap area of the proposed licence. There are also a number of other Aboriginal communities located at varying distances to the north-west and south-west of the proposed tenement and one registered site approximately two kilometres north-west of the proposed licence, but also outside of the overlap with the claim area. The Government party states there is no evidence to indicate the grant of the proposed licence is likely to interfere directly with the carrying on of the community or social activities of the native title party, because Mr Brooking does not live in any of these communities, nor does he make reference to any of the communities depicted on the map in his affidavit. Further, the Government party notes that, besides the Munmarul community, all of the Aboriginal communities depicted in the amended map are located a significant distance away from the proposed tenement.
In its contentions, the native title party refer to the following statement by Carr J in Ward and Others v State of Western Australia and Another (1996) 69 FCR 208 (‘Ward’) at [223] in support of the view that the mere existence of the grantee party on the proposed licence in circumstances where there has been no negotiation or consultation between the native title party and the grantee party, is likely to result in direct interference with the carrying on of community or social activities, even in the absence of direct physical interference:
‘[T]he very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds 10 km away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed at the thought of such activities.’
Following Ward, s 237(a) of the Act was amended in 1998 to substitute ‘carrying on of the community or social activities’ for ‘community life’. The Tribunal has considered the effect of the amendment on several occasions: see for example Walley at [13]-[21] citing Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1. In Paddy Neowarra and Others /Wilfred /Western Australia/Swancove Enterprises Pty Ltd [2007] NNTTA 11 (31 January 2007) at [22], Deputy President Sumner considered that ‘[i]t is now settled law that the s 237(a) must have some negative consequences for the carrying on of community or social activities. Feelings of distress or concern about the activities are, whether of a spiritual nature or otherwise, not on their own sufficient.’ In Joseph Roe and Others/Western Australia/Kimberley Quarry Pty Ltd [2008] NNTTA 118, Neville MacPherson at [25], the Tribunal concluded that ‘Carr J’s statement is no longer applicable.’ I adopt those findings for the purpose of this determination.
The affidavit of Mr Brooking notes, in relation to community or social activities:
· ‘There is a station close to the tenement area owned by Bunuba people called Milliwindi [Millie Windie] station. Bunuba people run cattle on that station’ (at 5);
· ‘We go out to the tenement area about once a month. My sister, Emily, and my nieces Judith, Sandra and Karen also take their families out there. They often go by themselves with their children, they go camping out there’ (at 6);
· ‘Old people used to do their Law and ceremony out there. We still take our young people out there for Law and ceremony’ (at 7);
· ‘We hunt wawanyi or goanna and wirrayi or hill kangaroo and crocodile [on] the exploration licence area’ (at 8);
· ‘There is good fishing in the tenement area in Ward [possibly Ord] Gap and Diamond [Dimond] Gorge. We fish there, mainly for Black Bream. Young people also go there to hunt. My sister and nieces go there often. We also fish in Sandy Creek which is just to the south of the tenement area’ (at 9);
· ‘We collect different types of mayi, bush tucker and bush medicines on my country, including the exploration licence area. Inside the exploration licence area we collect the salty bush plums to eat’ (at 10);
· ‘We also collect bush medicine from the area’ (at 11)
· ‘If the mining companies come here, it will interfere with some of our community life. If they come to do drilling, we won’t be able to camp there anymore and it will affect how we carry out our law and ceremony, we can’t have our ceremonies or teach our young people they way we want to if the explorers are there’ (at 12); and
· ‘We have Law ceremonies on and around the exploration license area. There are ceremony grounds there ... We still visit these places. Last year on NAIDOC day, we took four boys and four girls out there for Law and culture, to teach them about the food and medicine’ (at 20-21).
I accept that Mr Brooking and his family frequently access the area on and around the proposed licence to carry out community and social activities such as hunting, fishing, teaching Law and culture and gathering bush food and medicine, and other members of the native title party also access the area.
The Government party response contests that there is no, or no compelling, evidence as to the extent to which members of the native title party carry out community or social activities within the proposed tenement area, as asserted in Mr Brooking’s affidavit. The Government party says ‘to the extent that the evidence demonstrates that members of the Native Title Party carry out any community or social activities in the area of the proposed tenement there is not likely to be direct interference with those activities for the following reasons’ (at 6):
‘The exploration activities will likely be low-impact and non-intrusive’, and any ground disturbing activities must be conducted in a way that ‘will not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns’.
The area has been the subject of prior and continuing pastoral activity and prior mineral exploration and it is likely that this has already affected, and will continue to affect, the extent to which community and social activities can be carried out;
The proposed licence is entirely covered by leasehold tenure (although some of which includes Indigenous owned leasehold) which is likely to have extinguished at least any native title rights to control use of and access to the area, and activities will have been co-existent with the pastoral lease and other lawful activities for a significant period of time;
While the exploration activities permitted to the grantee party may mean they intersect with the native title party on occasion, they are not likely to prevent or disrupt the activities of the native title party to any significant extent;
Hunting and mineral exploration activities are inherently capable of coexistence;
Due to the nature of the rights held by an exploration licensee, there is little prospect of interference to the native title party’s ability to access the area of the proposed tenement; and
The Law activities conducted by the native title party will only have the potential to intersect with the exploration activities during the limited period during which Law business is held.
The Government party also relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63, concerning conditions deemed to affect exploration licences, and s 20(5) relating to exploration activity on pastoral leasehold areas. I note the Tribunal’s previous findings that s 20(5) of the Mining Act does not assist the Government party in relation to a s 237 assessment (see for example Banjo Wurrunmurra and Others /Western Australia/Monte Justin Ling and Others [2008] NNTTA 127 and Walley). In these previous determinations and others, the Tribunal has dealt with the limitations of s 20(5) to prevent interference with community life, and the Tribunal has determined that s 20(5) is of little importance in this regard. As outlined in Walley at [37]:
‘The section is obviously not designed to protect Aboriginal interests. Where a pastoral lessee is an occupier of the land, and the native title party is not, the pastoral lessee could consent to the activities which are otherwise prohibited without consultation with or consent from the native title party. Even in circumstances where the native title party is an occupier, as it may be on an Aboriginal reserve, the warden could permit the otherwise prohibited exploration or interference except within 100 metres of land in actual occupation and on which a home or other substantial building is erected.’
As noted in the Government party submission dated 1 August 2012, in relation to the Tribunal’s topographical map, none of the communities depicted on the map are referred to in Mr Brooking’s affidavit and I agree with the Government party submissions that ‘accordingly, there is no evidence in the affidavit or otherwise before the Tribunal that any of the inhabitants of those communities are members of the objectors/native title party whose community or social activities would be interfered by the grant of the proposed tenement...’.
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way: Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, Deputy President Sumner at [14]. Given the total area of the Bunuba claim is approximately 5,773 square kilometres, I consider that the size of the area of the grantee party’s proposed activities within the proposed licence area, in the context of the much larger native title claim, and the fact that the overlap between the claim area and proposed licence is 30.7 percent, makes it less likely that exploration activity of the nature outlined in the grantee party’s program of works will interfere with the community or social activities described by Mr Brooking.
Mr Brooking also refers to rock art sites and ceremony grounds that Bunuba people still visit and which are used for teaching children about Law and culture. However, Mr Brooking does not give any indication of how frequently these places are visited or where they are located in the proposed licence area. In the absence of more specific evidence about the location of the sites or the frequency with which they are visited by members of the native title party, it is impossible for me to predict the extent to which the activities proposed by the grantee party will directly interfere with the activities associated with those places.
In reaching a conclusion in relation to s 237(a), I have taken into account past and present exploration and pastoral activities that are likely to have affected, and are likely to continue to affect (in respect of the pastoral activities), the community or social activities of the native title party. This is referred to in the Government party Response (at 6(b)). Evidence suggests that exploration activity in the area has not been extensive, and only one exploration licence has been granted since the mid 1990s which is now suspended. Accordingly, the carrying on of the community and social activities described by Mr Brooking is only subject to the lawful activities of the Leopold Downs pastoralists in terms of the claim/proposed licence overlap. While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the grant of the exploration permit and particularly the pastoral lease, will already to some extent have interfered with the native title party’s community and social activities: Tarlpa at [122].
In the circumstances, taking into account the evidence available, I am unable to conclude that there would be interference of the kind contemplated by s 237(a) in this matter.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [21], there are no Registered Sites within the overlap between the claim and the proposed licence area. However, this does not mean that there may not be other sites or areas of particular significance to the native title party 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 intention of the AHA is to protect all Aboriginal sites, whether on the Register or not, but I do take the point, as made in the native title party contentions (at 20-25), that there may be areas of significance for the purposes of s 237(b) of the Act which do not fall under the definition of AHA sites and so would be outside AHA protection. Native title party contentions (at 29) refer to numerous paragraphs of Mr Brooking’s affidavit in support of areas which are of particular significance to the Native Title Party. However, it is not clear whether all of these are on the proposed licence/claim overlap, nor that they are all of particular significance.
The evidence of Mr Brooking relating to s 237(b) notes the following:
· ‘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’ (at 13);
· ‘There is a lot of rock art which is special to us in the tenement area. There are rocks and songlines which run right through the middle of the tenement area from the north to the south that are special to our people. They are Dreaming sites, and they are full of stories’ (at 14);
· ‘In the limestone caves at Oscar Ranges you see culloden, dead people, bones and heads. Very important sites to us. The dead people are all those who were massacred over many years of fighting. There are important sites all through there this area’ (at 16);
· ‘There are a lot of rock paintings and cave paintings in and around in the middle of the tenement area...There are areas where women are not allowed to go, and not allowed to look at. There are women’s areas too’ (at 17);
· ‘We have Law ceremonies on and around the exploration licence area. There are ceremony grounds there. These are very important places. They are not marked for malngarri or white people (literally, “red having”), but we all know where they are. Mining people must not damage these places’ (at 20); and
· ‘The limestone caves are very important place [sic] for us, the whole area is a special place including in and around the exploration license area. There are old people buried in the rock in around the area and there are cave paintings all throughout the rocks. Malngarri have to ask somebody to go up there. It is generally a place where people should not go’ (at 22).
Mr Brooking’s evidence makes reference to the significance of the limestone caves at Oscar Ranges, which contain skeletal remains. I accept that, on the basis of Mr Brooking’s evidence, the limestone caves may be sites of particular significance. However, Tribunal mapping indicates that the Oscar Ranges are located some 80 kilometres west of the proposed tenement area. As such, I do not find that the activities proposed by the grantee party are likely to interfere with the sites associated with those limestone caves.
The responses provided by the Government party to the Tribunal’s two topographical maps confirm the Tribunal’s observation that some of the areas outlined by Mr Brooking in his affidavit are not on or near to the proposed licence/claim overlap, including: Booking Springs, Diamond [Dimond] Gorge, McKinrick Hill, Ward [Ord] Gap, Fairfield, Windjana, Mount Bell, and Napier Range (at Balalana). The Government party also notes that some areas are ‘perhaps by reason of their nature, not identified with particular specificities in the contentions or affidavit material’ (at 15), which the Government party argues ‘must engender sufficient doubt in the Tribunal as to the accuracy of the information provided by the objectors as to the location of such un-named sites within the proposed tenement’. I agree that without specificities, it is difficult for the Tribunal to make a judgement based on the likelihood of interference of such sites by activities of the grantee party. Should the Native Title Party wish to keep the location of sites confidential, then there are mechanisms and processes available for them to do so through the objection determination process.
Mr Brooking states that there is rock art in and around the middle of the tenement area. Mr Brooking also refers to the existence of ‘ceremony grounds’ on the proposed licence, but notes that these sites are not marked for ‘malngarri or white people’. The Native Title Party contentions suggest that the proposed licence is in an area which is ‘site rich’ (at 19), and suggests that the sites Mr Brooking identifies have not been located precisely because they are ‘confidential to the Native Title Party and so have not been registered with the DIA’ (at 19). However, the process of registering such sites with the DIA is a different process from providing evidence to the Tribunal for the purposes of such an objection application. The Tribunal has held on previous occasions that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b): see for example Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (4 May 2010), Neville MacPherson at [39]; Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 at [43].
I do note that it appears the Leopold Ranges run through the proposed licence (as noted by the Government party in their responses to the Tribunal’s mapping), and that the DMP quick appraisal document states there are numerous breakaway/rock ridge areas on the proposed licence. However, without some further particularities on where these ridges are (for example, do they are run east-west or north-south or some other direction, and their approximate length, etc) it is difficult to say with any certainty that the area does form part of the proposed licence/claim overlap which is in the jurisdiction of this Tribunal. I make this statement also in the context of Mr Brooking’s evidence in his affidavit which includes speaking about ’good fishing in the tenement area in Ward [Ord] Gap and Diamond [Dimond] Gorge’ when in fact these areas are approx 10-20km south of the proposed licence area.
I note it appears that places of significance appear to relate to limestone caves in or around the exploration licence area and it appears that, based on the grantee party’s proposed exploration activities as outlined in the materials provided by DMP, the exploration work will not be of the type that would be likely to interfere with these areas. In the present matter, while I accept these sites are significant to the native title party, I do not consider that the evidence before me discloses a sufficient basis to reach a conclusion regarding the particular significance of these sites or the likelihood of interference. Accordingly, I am unable to find that there is a sufficient connection between these sites and the proposed exploration activities of the grantee party to justify a determination that negotiations under s 31 are required in this case. The Government party response addresses the issues in relation to sites of particular significance (at 12) and states that ‘The grantee party is now aware of the existence of such sites through the evidence in this enquiry and its legal obligations in respect of that site’. Although it is not clear which particular site[s] the Government party is referring to here, it is clear that the grantee party is on notice that there may be sites of significance, or of particular significance, or which fall under the AHA, within this proposed licence/claim overlap, and within the wider proposed licence area, which they need to pay attention to within the context of the regulatory regime.
Taking all of these factors into account, I find that there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on 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 concerns of the native title party (see Little at [41]-[57]).
There is limited support in the native title party contentions in relation to s 237(c) of the Act. The native title party submits (at 35) that within the proposed licence there are sites that are so significant to the local Aboriginal community that, in accordance with traditional law and culture, unauthorised persons may not be present at them. The native title party contends that this feature of the area places a burden on the local Aboriginal community to look after their country and that the grant of the proposed licence in these circumstances will cause a major disturbance. Mr Brooking notes in this respect that Bunuba people are ‘frightened if strangers arrive in our country uninvited’ (at 25) and states that ‘[i]f malngarri [white people] damage a site, artefact or living water or a ngarranggarni or Dreaming tree, we feel very upset ... We feel very sad, like someone close to us has died’ (at 27).
However, it is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters: Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113 (‘Rosas’) at [84]. To that extent, I agree with the Government party’s response (at 14) that s 237(c) relates to significant, direct physical disturbance of land or waters. I do note (at 16(c)) of the Government party’s response, that possible previous mining activities in the proposed licence area is suggested, although there is no evidence as to that mining activity, only to limited previous exploration activity and the current pastoral activity, as referred to earlier in this determination.
While it is open for the Tribunal to consider evidence regarding the impact of the proposed act on the customs and traditions of the native title party, that evidence must be directed towards the issue of major disturbance and may not simply repeat contentions raised under s 237(a) or s 237(b): Rosas at [86]. Cultural concerns about unauthorised access cannot on their own form the basis of a finding of major disturbance: Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72 (‘Geotech’) at [44].
In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:
· Most of the proposed licence/claim overlap area covers a pastoral lease where disturbance has already and will continue to be carried out;
· The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4);
· The Government party will impose an RSHA condition should the Native Title Party request;
· The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);
· There is no firm evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters; and
· There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.
I note that Government party documentation indicates that a National Heritage Listing affects the entire area of the proposed licence. No party has sought to make an issue of the National Heritage Listing and there is nothing before me to suggest that the National Heritage Listing has any significant effect on the likelihood that the proposed licence will involve, or create rights that will involve, a major disturbance to any land or waters concerned. The Tribunal has previously found that a National Heritage Listing will not, by itself, be determinative of whether major disturbance will be likely: Geotech at [44].
Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2013 to Tetra Resources Pty Ltd, is an act attracting the expedited procedure.
Helen Shurven
Member
20 August 2012
0
15
0