Banjo Wurrunmurra & Ors on behalf of Bunuba/Western Australia/Michael Ashley Giles
[2011] NNTTA 73
•29 April 2011
NATIONAL NATIVE TITLE TRIBUNAL
Banjo Wurrunmurra & Ors on behalf of Bunuba/Western Australia/Michael Ashley Giles,
[2011] NNTTA 73 (29 April 2011)
Application No: WO10/1175
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Banjo Wurrunmurra & Ors on behalf of Bunuba (WC99/19) (Applicant, native title party)
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The State of Western Australia (Government party)
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Michael Ashley Giles (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 29 April 2011
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151, 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA)
Aboriginal Affairs Planning Authority Act 1972 (WA)
Cases: Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15
Hughes v Western Australia (2003) 182 FLR 362; [2003] NNTTA 69
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd [2005] FCAFC 243, 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others[2008] FCAFC 23; (2008) 167 FCR 340
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30
Representative of the
native title party: Ms Hema Hariharan, Kimberley Land Council
Representatives of the
Government party: Mr Domnhall McCloskey, State Solicitor’s Office Ms Ros Dawson, Department of Mines and Petroleum
Representative of the
grantee party: Mr Michael Ashley Giles
REASONS FOR DETERMINATION
On 19 May 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2006 to Michael Ashley Giles (‘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 E04/2006 comprises an area of 651.4 square kilometres located 20 kilometres northwest of Fitzroy Crossing, within the Shire of Derby-West Kimberley, and overlapping the registered native title claim of the Bunuba People (WC99/19) registered from 20 August 1999) by 12.23%. The overlap is in the south eastern portion and part of the north western portion of the proposed licence.
No other native title claims overlap the proposed licence.
On 20 September 2010, Banjo Wurrunmurra & Ors on behalf of Bunuba (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Directions made by the Hon C J Sumner on 15 December 2010 included the request that the Tribunal be provided with contentions and documents of the Government party by 10 January 2011; of the native title party by 17 January 2011; and of the grantee party by 24 January 2010.
The Government party lodged its Statement of Contentions and evidence on 23 December 2010. I note the contentions refer to the grantee party as “Michael Anthony Giles” rather than “Michael Ashley Giles”, which I take to be a typographical error as in all other respects the contentions refer to the correct proposed licence. Supporting information from the Department of Mines and Petroleum (‘DMP’) was lodged on 20 December 2010.
A Statement of Contentions of the native title party was lodged on 11 January 2011. An unsworn Affidavit of Mr Johnny Bell and a sworn Affidavit of Ms Hema Hariharan, Legal Officer Kimberley Land Council (attesting to the manner of collection of Mr Bell’s evidence), was also lodged on 11 January 2011.
At the Listing Hearing on 3 February 2011 the grantee party advised that they would rely on the contentions of the Government party. At that hearing all parties agreed that the inquiry could be determined ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act).
On 15 March 2011, I was appointed by the Hon C J Sumner as the Member for the purposes of conducting the inquiry.
In relation to accepting the unsworn affidavit of Mr Bell, the Tribunal is not bound by the rules of evidence (s 109(3) of the Act). Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (at [18]-[28]) summarises the Tribunal’s practice with respect to statements not in affidavit form. In that matter, the Tribunal held that it is self evident that evidence relating to the matters in s 237 are essential to the making of a determination, and that the best evidence relating to the matters will generally come from the native title holders themselves. While it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is not contested. In the matter at hand, the unsworn evidence is accompanied by a sworn Affidavit of the Kimberley Land Council (‘KLC’) Legal Officer, outlining the manner in which the unsworn evidence was collected. On the basis of this information, and the principles applied by the Tribunal in previous determinations, I am satisfied that Mr Bell’s statement is admissible and material, accept it, and will deal with it and the documents and evidence provided by Mr Bell and other parties for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Hughes v Western Australia (2003) 182 FLR 362; [2003] NNTTA 69).
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others [2008] FCAFC 23; (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] FCAFC 243, 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
Government party and DMP documents include: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries and historical land tenure; a report and plan from the Department of Indigenous Affairs (‘DIA’) Sites Register; a copy of the tenement application; the proposed endorsements and conditions of grant; and a tengraph Quick Appraisal.
A map prepared by the Tribunal’s geospatial services on 10 March 2011 shows that there are no Aboriginal communities within the proposed licence. There are six communities within five kilometres of the south-eastern boundary of the proposed licence, including a community called Junjuwa. There are a further four communities within the wider vicinity of the proposed licence (more than 5 kilometres, but not more than 25 kilometres, away): Muludja, Biridu, Galamanda and Wamali.
DIA documents provided by the Government party and the native title party show that there are 13 Registered Aboriginal Sites and 6 Other Heritage Places (newly lodged/insufficient information or stored data) within the proposed licence: a total of 19 sites in respect of which the DIA hold information.
Government party documents establish the underlying land tenure of the proposed licence to include:
·Exploration Permit PA67 (EP453) 43.3%;
·Conservation Park (CR 43101) 3.0%;
·Stock Route (CR 12475) 2.6%;
·Two historical leases (H 369/429 & H 369/440) 31.0% & 0.1% respectively;
·Pastoral lease (PL 3114/573 – Brooking Springs) 23.4%;
·Pastoral lease (PL 3114/1269 – Quanbun Downs) 38.2%;
·Pastoral lease (PL 3114/930 – Jubilee Downs) 14.6%;
·Pastoral lease (PL 398/822 – Brooking Springs) 16.3%;
·Pastoral lease (PL 398/810 – Gogo) 0.1%;
·Use and benefit of Aboriginal Inhabitants Land (CR 45608) 0.1%;
·Use and benefit of Aboriginal Inhabitants Land (CR 45046) <0.1%;
·Water (CR 5096) 0.4%; and
·Vacant Crown Land 0.1%.
According to the Government party Quick Appraisal, there are 199 dead exploration licences which overlap the proposed licence by between 46.5 percent and <0.1 percent, with the majority overlapping by 0.2 percent. There has been previous exploration activity in the area of the proposed licence since 1968. There are other features noted in the Quick Appraisal including but not limited to: 17 minor roads, 11 major roads, 67 tracks and a number of buildings, fence lines, yards, well/bores, earth dams, major watercourses and spring/soak/rockhole/waterholes.
The grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). According to documents provided by the Government party, these four standard conditions, and the following six other conditions, will regulate the exploration activities on the current proposed licence site:
5.The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the licence; or
· registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water Reserve 5096, Conservation Park 43101, Use and Benefit of Aboriginal Inhabitants Reserves 45046 and 45608 and Fitzroy Townsite.
8.No interference with Geodetic Survey Station EN 14, EN 19, NK7, R321, R334, R334T, NOONKANBAH 3, 63-76, 63T-75T and 85-91 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9.No excavation, excepting shafts, approaching closer to the Great Northern Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the Great Northern Highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below a depth of 15 metres from the natural surface.
Consent to explore on Stock Route Reserve 12475 granted subject to:
10.No exploration activities being carried out on Stock Route Reserve 12475 which restrict the use of the reserve.
According to Government party documentation, the following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach) will be imposed:
1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3.The licensee’s attention is drawn to the existence of a licence for Tourism granted pursuant to section 91 of the Land Administration Act 1997 and which is shown designated as FNA 6784 in TENGRAPH.
Evidence provided by the native title party
The native title party has provided the following documents on 11 January 2011:
·a Statement of Contentions;
·an unsworn Affidavit of Mr Johnny Bell; and
·a sworn Affidavit of Ms Hema Hariharan, Legal Officer Kimberley Land Council (attesting to the manner of collection of Mr Bell’s evidence).
The statement of Mr Bell is as follows:
Statement of Johnny Bell
1.My name is Johnny Bell. I was born on 6 March 1940 at Ellendale Homestead (Nanangali). I do CDEP work and am also a pensioner.
2.I am a native title claimant in the Bunuba Native Title Claim (WC99/19). I am connected to the Bunuba native title claim group through both my mother and father’s side.
3.I know the country where Michael Ashley Giles (“the grantee party”) has applied for exploration licence E04/2006 (“the exploration licence area”) because I live near this area and visit it often.
4.I have been shown maps of the exploration licence area. The map of the exploration licence area is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5.The exploration licence area is on Bunuba country. Bunuba country is the country where Bunuba language was put by ngarranggarni, in the Dreamtime. I know this country like the back of my hand because I have walked all over. It is Bunuba Country all the way from the Leopold Ranges down to Diamond Gorge, Fairfield, Mount Eliza, and Brooking Springs, it’s all Bunuba Country.
6.Bunuba people hunt, fish and get bush tucker in the exploration licence area. There is a lot of native wildlife in and around this area for Bunbua people to hunt and fish for. There are barramundi and other fish in the creek and in the river as well as goanna (wawanyi), hill kangaroo (wirrayi), turkey, emu, crocodile and turtles. We would go there more often if the pastoralists recognised our rights.
7.I live very close to the exploration licence area and visit it regularly for hunting and fishing.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
8.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 [sic]
9.The Moolumoolu site is in the exploration licence area, between Janjuwa Community and Oscar Ranges. This site is a rock with rare possums. The white man name for this site is Oscar Hill.
10.Within the exploration licence area is the site of One Mile Spring. This site has a goanna cave. There are many more sites in the hills. The exploration licence area is very hilly country.
11.The exploration licence area has the ceremonial sites of the Marula Creek/minygunnu, Langkur Spring and Brooking springs. The Brooking Springs site is a men only site.
12.The Fitzroy River goes through the exploration licence area. This is a site of great mythological significance.
13.Within the exploration licence area is the Oscar Range site, which has paintings and artefacts.
14.Within the exploration licence area is the Bambururu site, which has mythological significance for the Bunuba native title claimants. We also have the Pilyayi site, which is a modified tree, Kulata and the Gunggarabin site which are all important mythological site [sic] for the Aboriginal People in the area.
15.There are many artefact scatters sites throughout the exploration licence area for example the Langkur Cave which has paintings and artefacts.
16.Within the exploration licence area is the mythological site of Maarowia. This site also has artefacts.
17.Within the exploration licence area is the Geikie Gorge Road area which contains burial sites.
18.There are also many other sacred sites and special areas in and around the exploration licence area that I cannot talk about.
MAJOR DISTURBANCE TO LAND OR WATER
19.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.
20.If people enter these sites without permission they will get sick. The only way to get better is to tell a traditional owner what you did. You need to tell boss people who speak for that area and they can smoke you to get rid of the bad spirit that is making you sick. The people you have to ask need to be from the country that you have entered.
21.I don’t want people on the exploration area. The whiteman, gardiya mob should not be allowed to drill holes and explore around our special areas without talking to us.
22.There are many significant places on the exploration area such as creeks and waterholes, as well as the Fitzroy River and animals which are important to us. There are many special places that you cannot touch. Strangers cannot go there without our permission.
23.Strangers need to ask permission before coming on to our country as we have many special places there. They have to ask us first. They must talk to Traditional Owners, so we can understand really what they want to do.
24.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.
I accept that Mr Bell has the authority to speak for country on behalf of the native title party.
The Affidavit of Ms Hariharan is as follows:
Affidavit of Hema Hariharan
1.I am employed as a Legal Officer by the Kimberley Land Council Aboriginal Corporation (“KLC”) and work in the KLC’s Broome office.
2.On 18 November 2010 I attended a Bunuba native title claim group meeting in Fitzroy Crossing. At this meeting I showed maps of the areas, regarding the grantee party’s application for exploration licence E04/2006 (the “exploration licence area”) to the Bunuba native title claimants. The maps I showed the native title claimants is annexed to this affidavit and marked “A”.
3.I was then told the names of the people who could speak for the exploration licence area, and arrangements were made to meet the following day in Janjuwa community for the purposes of taking affidavit information.
4.On 19 November 2010 I travelled with my colleagues Adrian Dodson-Shaw and Douglas Powers to Janjuwa Community. We arrived at approximately 8am and met with members of the native tile [sic] claim group who were nominated to give affidavit information in relation to the exploration licence area. I showed those who were nominated the annexed map of the exploration licence area. Those who were nominated to speak for the area included, but were not limited to Patrick Green, Dylan Andrews, Johnny Bell, and Kevin Dann.
5.There was significant discussion amongst the group regarding the exploration licence area. It was also discussed who from the group would be the most appropriate deponent for the affidavit information. Mr Johnny Bell was nominated to give the affidavit information. I then asked the deponent questions about the exploration licence area in the presence of the rest of the group. I took notes of what the deponents said, which I used to prepare Mr Bell’s affidavit.
I accept that Mr Bell’s statement was prepared by Ms Hariharan from the notes of her discussion with Mr Bell. An explanation as to why the statement of Mr Bell could not be sworn by him would have added further weight, but I acknowledge the general difficulties experienced by parties in matters such as this related to swearing documents.
Community or social activities (s 237(a))
In considering s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (paras [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (para [75]). The Hon C J Sumner has made it clear (para [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (paras [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (paras [85]-[86]).
The Government party refers to Reserves for the Use and Benefit of Aborigines, located on the proposed licence (CR 45608 and CR 45046). Aboriginal reserve land attracts certain protections, as per the Aboriginal Affairs Planning Authority Act 1972 (WA) and the Mining Act 1978 (WA). Reserves CR 45608 and CR 45046 overlap the proposed licence by 0.1 % and <0.1 % respectively, therefore the protections afforded in relation to them will have little impact on activity conducted on most of the area (the other 99%). The Government party relies on protections offered by the Mining Act in relation to CR 43101 (Conservation Park), CR 12475 (Stock Route) and CR 5096 (Water). These areas combine to cover a total of 6% of the proposed licence – again, these protections affect only a small portion of the proposed licence. There are 5 pastoral leases covering over 90% of the proposed licence, in respect of which the Government party refers to the protection offered by the Mining Act. In general terms, the Government party also relies on s 63 of the Mining Act and the conditions and endorsements to be imposed on the grant of the proposed licence to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.
In relation to community and social activities at the proposed licence area, Mr Bell states that he knows the proposed licence area as “I live near this area and visit it often” for hunting and fishing (at 3 and 7). Mr Bell indicates that he lives at Janjuwa, which Tribunal mapping shows to be very close (within 1 kilometre) to the border of the proposed licence. He states that ‘Bunuba people hunt, fish and get bush tucker in the exploration licence area’ (at 6). He points to some interruption of social and community activities when he states that ‘We would go there more often if the pastoralists recognised our rights’ (at 6). Mr Bell’s statement offers limited information in relation to community and social activities on the proposed licence.
The native title party contentions also refer to the native title party hunting, collecting traditional foods and products, looking after paintings, burial places and sites of importance, and having ancestors and family buried in the proposed licence area (at 13 and 16). Similar to Mr Bell’s evidence, the contentions provide little detail as to who is involved in these social and community activities or when, where or how frequently they occur.
The Tribunal geospatial services map shows that the proposed licence area contains at least 19 sites of significance, with at least 5 other sites within 5 kilometres of the boundary of the proposed licence. This is confirmed by the DIA register of Aboriginal sites. I understand that the DIA register is not necessarily a record of all of the sites significant to the native title party in any particular area, and that areas may exist, that are not registered, which have significance in relation to the native title party’s social and community activities.
In Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30) (‘Wilma Freddie’), native title party affidavit evidence indicated that access to a proposed licence was regular, but the evidence provided only general information on the current activities of the claim group. The Tribunal found (at [11] & [13]) that the requisite level of interference with social and community activities was unlikely as there was little specific evidence of the activities carried out over the area. In the current matter, Mr Bell’s evidence is also not sufficiently particularised to reach a conclusion that social and community activities will be interfered with by the activities associated with the grant of the proposed licence.
The size of the proposed licence is 651.4 square kilometres and the area of the Bunuba claim is approximately 5,772 square kilometres (according to Tribunal iSpatialView Overlap Analysis). Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108, I find that the size of the proposed licence area in the context of the much larger native title claim makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities. In addition, the overlap of the native title party claim area in this matter is only 12.23% of the proposed licence area.
Hon C J Sumner in Tarlpa (at [121]) makes the point that ‘The Tribunal has determined that the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities may be taken into account when assessing whether the grant of an exploration licence is not likely to directly affect those activities for the purposes of s 237(a) (Walley at [12]).’ In the present matter, there has been previous mining and/or exploration activity on the proposed licence, and a number of pastoral leases over a substantial portion of the proposed licence. In Mr Bell’s own statement, he refers to the interference of pastoral activity with the activities of the native title party.
Taking all of these factors into account, I find that there is not a real chance or risk that exploration activity is likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows 13 registered Aboriginal sites and 6 other heritage places within the proposed licence. According to the Tribunal’s geospatial mapping, there are also five sites within five kilometres of the proposed licence boundary. There may be other sites or areas of particular significance to the native title party over 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 AHA protects all Aboriginal sites, whether on the Register or not.
In his statement, Mr Bell outlines a number of sites of significance to the native title party, some of which are also listed on the DIA register:
·Oscar Hill (at paragraph 9 of Mr Bell’s statement-most likely DIA register site ID 14402, other heritage place, insufficient information, open access, no restriction);
·One Mile Spring (at 10 – DIA register site ID 12801, other heritage place, stored data, open access, no restriction);
·Brooking Spring – a men only site (at 11 – DIA register site ID 14405, registered site, closed access, male access only);
·Fitzroy River (at 12 – DIA register site ID 12687, registered site, open access no restriction);
·Oscar Range (at 13 – associated with DIA register site IDs 12700 (registered site, open access, no restriction), 15777 (registered site, closed access, no restriction), 12699 (other heritage place, stored data, open access, no restriction) and 12803 (other heritage place, lodged, closed access, no restriction));
·Bambururu (at 14 – DIA register site ID 12736, registered site, closed access, no restriction);
·Pilyayi (at 14 – DIA register site ID 13402, registered site, closed access, no restriction);
·Kulata (at 14 – DIA register site ID 12802, registered site, open access, no restriction);
·Gunggarabin (at 14 – DIA register site ID 13451, registered site, open access, no restriction);
·Langkur Cave (at 15 – DIA register site ID 12800, registered site, open access, no restriction);
·Maarowia (at 16 – DIA register site ID 13401, registered site, closed access, no restriction); and
·Geikie Gorge Road (at 17 – DIA register site ID 13594, registered site, closed access, no restriction).
Some of these sites (13402, 13401, 12803, 12736, 12687, 13594, 13594), as well as sites 706 and 14405, are on or very near to the 12.23% overlap of the native title claim and the proposed licence.
Mr Bell’s evidence is that there are many places, including inside the exploration licence area, which are very important (at 8). Mr Bell goes on to outline that they are variously ceremonial sites (including the men only site of Brooking Springs), sites of mythological significance, sites containing paintings and artefacts, as well as burial sites (at 9-17). He states that ‘There are also many other sacred sites and special areas in and around the exploration licence area that I cannot talk about’ (at 18) and again, (at 22), he outlines there is a river, animals and special places ‘that you cannot touch. Strangers cannot go there without our permission.’
The Government party contentions at paragraph 5(f) indicate that the following condition will be placed 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, c/- PO Box 1043, West Perth WA 6872 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 (e.g. the Goldfields/South West/Ngaanyatjarra/Pilbara/Yamatji Land and Sea Council RSHA) offered by the Kimberly Land Council.
This suggests that, should the KLC wish to adopt the terms of a RSHA, such would be executed in favour of the KLC.
The Government party, and so the grantee party, contend that the Mining Act 1978 and the AHA are sufficient to make interference with sites unlikely.
The areas identified by Mr Bell clearly include registered sites in the DIA documents, which also fall near or within the overlap between the native title claim area and the proposed licence. I am satisfied that these sites and areas are of particular significance to the native title party in accordance with its traditions. I must now consider whether the protective provisions and procedures of the AHA, or any other protective arrangement that may be in place, including the intentions of the grantee party, render it unlikely that there will be interference with any areas or sites of particular significance.
The Government party relies on s 63 of the Mining Act and its regulatory regime in general, including sections of the AHA, to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the RSHA: (Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 at 386-388 [30]-[34]). In the present matter, the grantee party has not provided any evidence as to its intentions in general, or its attitude to an RSHA, apart from its reliance on the Government party contentions.
The evidence of the native title party is compelling in that the proposed licence is situated within a site rich area. Even taking into account that the overlap of the native title party with the proposed licence is only 12.23%, I am not confident in this matter that the regulatory regime will be effective in reducing the likelihood that sites of significance may be interfered with. I make this finding based on the uncontested evidence that the proposed licence contains areas which are of particular significance to the native title party, including areas and sites of such importance that some cannot be entered or disturbed except in accordance with traditional law and custom (as outlined in Mr Bell’s statement at 11, 18, 20-24). The sites which have been stated to exist on the proposed licence area, which may or may not be on the public record, means that there is a real risk of interference with them, despite the protective provisions of the AHA, the regulatory scheme in general, or any positive intentions on the part of the grantee party.
I find that there is likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area unless ongoing negotiations were held between the parties, as envisioned by s 31 of the Act.
Major disturbance to land and waters (s 237(c))
As the evidence relating to s 237(b) of the Act supports a determination that the expedited procedure is not attracted in relation to E04/2006, it is not necessary to consider whether major disturbance to land and waters is likely to occur.
Determination
The determination of the Tribunal is that the grant of exploration licence E04/2006 to Michael Ashley Giles is not an act attracting the expedited procedure.
Helen Shurven
Member
29 April 2011
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