Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Black Mountain Gold NL
[2009] NNTTA 109
•15 September 2009
NATIONAL NATIVE TITLE TRIBUNAL
Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Black Mountain Gold NL, [2009] NNTTA 109 (15 September 2009)
Application No: WO08/639
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants – (WC99/19) (native title party)
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The State of Western Australia (Government party)
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Black Mountain Gold NL (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 15 September 2009
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, 35, 38, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Cases:Banjo Wurrunmurra and others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Caldera Resources Pty Ltd, NNTT WO07/67 and WO07/68, [2008] NNTTA 157 (21 November 2008), Hon C J Sumner
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa, NNTT WO07/1013, [2008] NNTTA 127 (5 September 2008), Hon C J Sumner
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), Hon C J Sumner
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Representative of the
native title party: Mr Robert Houston, Kimberley Land Council
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party: Mr Nigel Cranley, Intermin Resources Limited
REASONS FOR DETERMINATION
On 9 April 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the NTA’) of its intention to grant exploration licence E04/1712 (‘the proposed licence’) to Black Mountain Gold NL (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 143.81 square kilometres located 89 kilometres northerly of Fitzroy Crossing in the Shire of Derby-West Kimberley. It is 98.7 per cent overlapped by the Bunuba registered native title claim (WC99/19 – registered from 20 August 1999). No other native title claims overlap the proposed licence.
On 8 August 2008, Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants (WC99/19) (‘the native title party’) made an expedited procedure objection application to the Tribunal.
In accordance with standard practice in expedited procedure objection matters, 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 four month 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.
On 28 July 2009, following a number of conferences and multiple requests to extend the time required for compliance with directions in an attempt to negotiate an agreement that might dispose of the objection by consent, and in the absence of any such agreement, I approved a request for additional time to allow native title party compliance for an inquiry.
Contentions and evidence were lodged by the Government party and native title party. Following a further extension of time, the grantee party indicated at a listing hearing on 20 August 2009 that it would rely on the contentions and evidence submitted by the Government party. Parties agreed that this matter could be determined ‘on the papers’ (i.e. without holding a further hearing) and I am satisfied that the objection can be adequately determined in this way (s 151(2) NTA).
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’), I considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from that department that the proposed activities are acceptable.
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 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of 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 State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licence:
Leopold Downs Indigenous Owned Pastoral Lease 3114/750 (92.5 per cent overlap);
Fairfield Indigenous Owned Pastoral Lease 3114/748 (6.2 per cent overlap); and
Reserve 46235 vested in the National Parks and Nature Conservation Authority for a Conservation Park (1.3 per cent overlap).
The entire area of the proposed licence is nationally heritage listed (NHL0106063) under the jurisdiction of the Commonwealth Department of Environment, Water, Heritage and the Arts.
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licence.
Department of Indigenous Affairs (‘DIA’) documentation provided by both the Government party and native title party reveals one site registered under the Aboriginal Heritage Act 1972 (WA) significantly overlapping the proposed licence – Gunbi (Site ID 13656 – permanent register, open access, no restrictions).
Government party documentation indicates one pending mining lease slightly overlapping the proposed licence. There is no current mineral exploration in the area of the proposed licence however previous exploration and mining activity is evidenced between 1953 and 2009.
Two previously granted tenements, E04/1419 (WO05/304) and P04/213 (WO04/349), the latter of which was surrendered in April 2009, were the subject of objections by the native title party. In both cases, agreement was reached and the objections withdrawn.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4). Additional conditions require that the pastoral lessee is notified of the grant of the licence and of certain exploration activities (conditions 5-6).
In addition, the grant of the proposed licence will be subject to a condition requiring permission from the Minister responsible for the Mining Act 1978 prior to commencing exploration activities on Conservation Park 46235 (condition 7).
The grant of the proposed licence will also be subject to conditions restricting mining activities and interference with Geodetic Survey Station WH 5 (condition 8).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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.
Evidence provided by the native title party
The submissions of the native title party include the affidavit of George Brooking Manjanjirr (‘GB affidavit’) made in the following terms:
‘AFFIDAVIT OF GEORGE BROOKING MANJANJIRR
I, George Broking, Pensioner, of Bungardi Community, on Brooking Springs Pastoral Lease, near Fitzroy Crossing 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 Black Mountain Gold NL, “the grantee party”, have applied for Exploration Licence Number E04/1712, “the exploration licence area”, very well, because I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The exploration licence area falls 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. Fairfield, Mount Eliza, Phils camp, Mount Rose, it’s all Bunuba Country.
5.The area around Mount Broome including the exploration license area is known as Gunbi. We held Law ceremonies there in the early days. We used to have Law ceremonies or Wangga including junba or ceremonial dances, on Galamanda country and falls within the exploration area in the Station days. There are several ceremony grounds there. These are very important places.
6.There is good hunting and fishing in many parts of the exploration licence area. We hunt wawanyi or goanna and wirrayi or hill kangaroo around Black Hills and inside the exploration licence area. This is good milha or bush meat. We find wawanyi all over our country, including inside the exploration licence area. We use jilamana or rifles today but before we hunted wirrayi with jinali or spears.
7.There is a sacred site there, Turtle Hole it is in the exploration license area we hunt waywurru and jangurru turtle (fresh water short and long neck). It’s a good place to go and get turtles. It’s a dreaming place as well. We didn’t have turtles there before the people came down from Mount Broome and went to Richendra Gorge.
One bloke was fishing there, and he reckoned he grabbed the biggest turtle. He was surprised; it’s not a big river. Turtle Hole is what we call that place.
8.We fish for jambinbaru or black bream walngga or eel at Richendra River which is in and around the exploration licence area and any billabong or creek in the exploration licence area. We always go fishing in the Grooden Gorge as well.
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 our old people used to collect garringarri or waterlily roots, from the creek there. The water lilly roots are the same colour as egg yolk and, still today, we roast them in the fire. In the season we collect mandarra gum, we also take wax from bininybalu Spinifex, which we call barrala. We take it to use for medicine, for coughs and colds and it is good for little babies. We grind it up until it is very fine and then you smear it on your chest and temples. 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.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
10.My country, or muay, and the Law we follow come from the Dreamtime, from the ngarranggarni. I know the exploration licence area very well. There are many places in my country, including inside the exploration licence area, which are very important and have great significance in the traditional religion of my community.
11.The old people used to do ceremony up there. They used to tell us stories. Today, we still visit that place to fish and hunt there.
12.There are fossils all through the Mount Broome area, the Leopold Ranges, down into the exploration license area and through to the Fairfield homestead. There are flat rock paintings and hunting artefacts like spear heads all around the Mount Broome area. You can see the paintings from far away. Danny Marr’s grandfather, Bunuba man, has got his finger print up there.
13.There are stories and sites from the Leopold Ranges through to Mount Broome and Mount Elisa including the exploration license area. There is a ngarranggarni or important Dreamtime story from the olden days about 2 dingos that travelled the land. The dingos travelled from Fairfield, they went to the Fairfield homestead, across the exploration license area, Windjana, Mount Bell to Yamarra Gap, where you can still see those to Dingos on that wall today.
14.There are special place stories for Richendra Gorge, Black Hills River and in and around the exploration licence area. These places are important to us. There’s also Living Water around the Leopold Ranges and also in and around the exploration licence area. This area is special to us. We don’t want like people getting to close to that area.
15.All along the Leopold Range you see culloden, dead people, bones and heads- right from the Fitzroy River to Mount Broome. 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.
16.There are a lot of rock paintings and cave paintings in and around Mount Broome and through the Leopold Ranges there. We remember the camps of our old people up and around the Mount Broome area and down into the exploration license area. Old people told us to look after that Country. We don’t want to upset them.
17.We are looking after all the important places in our country. 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.
18.We used to 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. There are also old Law Grounds at Yarranggi or Leopold Downs Homestead, and at Lanmaloowa or Fossil Downs Homestead. We usually swap the locations for our Law business, every Bulurru or Wet Season.
19.Mount Broome is 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 around Mount Broome. There are cave paintings all throughout the Leopold Ranges. Malngarri have to ask somebody to go up there. It is generally a place where people should not go.
MAJOR DISTURBANCE TO LAND OR WATER
20.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.
21.Malngarri must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. Our old people used to ‘sell’ gunyju or bamboo spear shafts, through wirnan or trading relationships. Some of the people we trade with were and still are strangers in our country. That’s why we are frightened if strangers arrive in our country uninvited. They might get sick or paralysed if they touch any sacred site. That’s why we are frightened to tell malngarri because they have got their own way. We know that malngarri don’t follow our Law. That’s why malngarri have to slow down and come and meet with us.
22.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 marlngarri coming to our country because they just jump in anyway.
23.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’.
24.If blackfellas damage any ngarranggarni or Dreamings in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again. But I can’t remember this happening.
25.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.
26.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.’
The evidence of Mr Brooking is uncontested and I accept it. Mr Brooking says that he is one of the senior people for the Bunuba application and even though he is not one of the persons comprising the applicant and registered native title claimant, I accept that Mr Brooking is a member of the Bunuba claim group and has the necessary authority to speak for country on behalf of Bunuba.
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 [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). 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 451 [26]). The assessment is also contextual, taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
The evidence establishes that exploration activity has occurred in the area of the propose licence and vicinity over the years up to and including 2009. The concerns of the native title party about previous exploration activity are to some extent apparent from two objections lodged in relation to some of the tenements applied for in their claimed country. While it is possible based on the number of titles granted between 1953 and 2006 that some interference with the native title party’s community or social activities may have occurred. There is no evidence to suggest that this has occurred to any appreciable extent.
Mr Brooking deposes that members of the native title party still enjoy access to the area of the proposed licence to hunt, fish and collect bush tucker and bush medicines. The principal issue under s 237(a) is whether the extent of those community or social activities is such that exploration activity is likely to interfere with them. The evidence adduced by the native title party is not specific as to the number of people involved or the frequency of those activities. There are also no established communities within or in the near vicinity of the proposed licence which might help support an inference that the community or social activities are of an intensive nature. Mr Brooking deposes to belong to Bungardi Community on Brooking Springs Pastoral Lease which is located near Fitzroy Crossing, being the nearest major population centre, some 89 kilometres from the proposed licence. I accept that some Bunuba claimants live at and in the vicinity of Fitzroy Crossing (see Banjo Wurrunmurra and others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (‘Banjo Wurrunmurra WO04/136 and WO04/137’) but the distance from and the inaccessibility of the area of the proposed licence means that the level of community or social activities in the present matter was not the same as found to exist in that matter.
The evidence also establishes that Law ceremonies were conducted in the vicinity of the proposed licence where several ceremonial grounds are located. There is no suggestion that ceremonies continue to be conducted on a contemporary basis and therefore I cannot find that community or social activities over the ceremonial grounds are likely to be interfered with pursuant to s 237(a) of the Act. Nonetheless, the ceremonial grounds are considered ‘very important places’ (GB affidavit para 5) and are sites of significance to the native title party pursuant to s 237(b) of the Act and is dealt with below.
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place as significant ground disturbing exploration will only occur at any one time over a small area. The area of the proposed licence overlaps the area of the Bunuba claim to the extent of 141.93 square kilometres. The area of the Bunuba claim is approximately 5,771 square kilometres, much larger than the area of the proposed licence, thus making it less likely that exploration will impact on community and social activities, which I can infer are likely to be carried out over a broader area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso (at [43]-[44])).
Often, given the nature and extend of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely to directly interfere with these activities except in an incidental and insubstantial way. This is such a case.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208, that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions para 14), I adopt my findings in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement, based on the previous words ‘community life’ in s 237(a), is no longer applicable.
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 (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act (‘AHA’) shows one open access site within E04/1712, but this does not mean 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 AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed tenement 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 protection regime based on the AHA is sufficient to ensure that 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 (1 March 2007), Daniel O’Dea (‘Butcher Cherel’) (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.
Mr Brooking deposes that the following sites or areas of particular significance to the Bunuba people exist within or in the vicinity of the proposed licence.
Gunbi – located around Mount Broome and the area of the proposed licence where Law ceremonies were conducted and several ceremony grounds are located (GB affidavit para 5). Gunbi is also the name given to the registered site under the AHA which overlaps the proposed licence. The ceremony grounds are ‘not marked for malngarri or white people’ however Mr Brooking says ‘we all know where they are’ (para 18).
In Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), Hon C J Sumner (‘Banjo Wurrunmurra WO05/756’ at [28]-[30]), the Tribunal considered evidence relating to this registered site and a broader area referred to in the evidence of Johnny Marr as Gunbi in the following terms:
‘12. Inside the Exploration Licence Area, is another place called Gunbi. This is an important ngarranggarni place in my country. It includes all the area around and including Mt Broome. There is an important ngarranggarni story for that place about “an old woman who is looking for her husband but he has drowned, she is poking holes all around that area with her stick and makes that gorge”. We must watch this area carefully because it’s a dangerous place and has significant meaning to our people. Even walking in this place in dangerous and is against our law. Going there without permission will make the old woman angry and any digging will destroy this place.’
I adopt the Tribunal’s findings in that matter for the purpose of the present proceedings. The Tribunal found that the Gunbi area as described by Mr Marr which was some 15 kilometres to the north of the Gunbi registered site was a site of particular significance to the native title party. The Tribunal found that the Gunbi area described by Mr Marr was in the vicinity of Mount Broome and extended into the proposed licence areas the subject of that inquiry (E04/1503 and E04/1504).
The northern part of the proposed licence area in the current proceedings is located slightly to the west of E04/1503 and E04/1504 and the evidence given by Mr Marr and Mr Brooking is consistent in describing the general location and significance of the area known as Gunbi such that it covers parts of all three relevant areas.
The proposed licence area extends south from its northern most point for some 25 kilometres and encompasses the registered site known as Gunbi. I am satisfied from the evidence in Banjo Wurrunmurra WO05/756 and the present matter that there is an area described as Gunbi which extends to the south and west of Mount Broome and takes in substantial parts of the proposed licence area. It is in my view an area or site of particular significance to the native title party in accordance with their traditions and also contains specific sites of that kind within it.
Old Law grounds are also located at the Leopold Downs and Fossil Downs homesteads (GB affidavit para 18). Tribunal mapping locates the Leopold Downs and Fossil Downs homesteads as approximately 25 and 80 kilometres respectively from the proposed licence. It is unlikely that these sites will be interferred with by the proposed exploration activity.
Turtle Hole –a ‘sacred site’ located in the area of the proposed licence which is used for hunting waywurru and jangurru (fresh water short and long neck) turtles. It is also described as a dreaming place (GB affidavit para 7).
The presence of fossils throughout the Mount Broome area, Leopold Ranges and in the area of the proposed licence, as well as rock and cave paintings, artefacts such as spear heads and the camps of the old people (GB affidavit paras 12 and 16). Tribunal mapping shows the King Leopold Ranges Conservation Park slightly overlaps the northern portion of the proposed licence. Mount Broome lies within the King Leopold Ranges Conversation Park and its summit is approximately 10 kilometres to the east of the proposed licence.
Ngarranggarni – an ‘important Dreamtime story from the olden days about 2 dingos that travelled the land’ including the area of the proposed licence (GB affidavit para 13).
Living Water – around the Leopold Ranges and area of proposed licence which is ‘special to us’ and ‘we don’t want like people getting to close to that area’. There are also ‘special place stories’ for the areas in and around the proposed licence as well as Richenda Gorge and Black Hills River (GB affidavit para 14). Tribunal mapping shows Richenda Gorge abuts E04/1712 to the east and Black Hills Yard, which I can infer is in close proximity to Black Hills River, lies approximately 5 kilometres west of the proposed licence.
The presence of culloden, dead people, bones and heads along the Leopold Range and Fitzroy River to Mount Broome which are considered very important sites. The remains are of ‘all those who were massacred over many years of fighting’ (GB affidavit para 15). In this case Mr Brooking is describing an area that extends for over 100 kilometres and his evidence is not very specific as to the location of these human remains on the proposed area. Nevertheless, the proposed licence area is encompassed within the general area described by Mr Brooking and the northern part of it covers part of Leopold Range. It is probable, at least, that some of these human remains sites exist within the proposed licence area. I have no doubt that they are sites of particular significance to the native title party.
Mount Broome – ‘a very important place for us’ where there are old people buried in the rock’ (GB affidavit para 19). Mount Broome itself is some 10 kilometres to the east of the north eastern edge of the proposed licence area. In my view it is unlikely that the Mount Broome area itself will be interfered with by the exploration activity.
The evidence provided by the native title party in relation to sites is uncontested and I accept that it establishes the existence of a number of sites of particular significance to the native title party. I am satisfied that Gunbi, the ceremony grounds, the areas associated with Dreamtime stories, Mount Broome, Living Water, Turtle Hole and sites containing human remains, are all areas or sites of particular significance to the native title party. Some of these sites are within the proposed licence area and there is the potential for them to be interfered with by exploration activity.
I also have regard to the findings of the Tribunal in Banjo Wurrunmurra WO05/756 at [24]-[34] and Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa, NNTT WO07/1013, [2008] NNTTA 127 (5 September 2008), Hon C J Sumner at [42]-[54] (‘Banjo Wurrunmurra WO07/1013’) where I found that areas directly to the east and north-west of the proposed licence contained areas and sites of significance to the Bunuba people. In each case the Tribunal found the expedited procedure did not apply on the basis that it was likely that exploration would interfere with an area of particular significance to the native title party.
The affidavit of Mr Brooking evidences concerns about mining companies entering Bunuba land without permission and consultation with traditional owners. Mr Brooking says that ‘Malngarri [non-Aboriginals] must ask for permission before coming onto my country because we have got a lot of very special places on my country’ and that ‘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.’ (GB affidavit paras 21 and 23). Mr Brooking deposes that the Bunuba people are frightened of strangers entering the country uninvited because ‘they [malngarri] 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.’ (GB affidavit para 21). This evidence is corroboration of the fact that the areas and sites are of particular significance to the native title party in accordance with their traditions. I am satisfied that the area is relatively rich in Aboriginal sites.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA and any other protective arrangement that may be in place render it unlikely that there will be interference with the areas or sites of particular significance. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein). In Butcher Cherel (at [81]-[91]), Member O’Dea canvassed various determinations in which the protective provisions of the AHA were considered in light of the intentions of the grantee party, in particular matters, which I adopt for the purpose of this determination. In that matter the Tribunal found the AHA regime was likely to be effective because of the extensive evidence of the intentions of the grantee party, including its intention to conduct a heritage survey. It is a matter of fact based on consideration of the evidence in each case whether the regulatory regime under the AHA will make interference with an area or site of particular significance unlikely, taking account of what the grantee party intends to do including in relation to the scope of exploration activities, site protection and consultation with the native title party. In this case the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the proposed licence. In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
The grantee party has also not provided any evidence of its intentions with respect to the protection of Aboriginal sites or consultation with the native title party about them. However, I have no reason to believe that the grantee party will not comply with the AHA.
In my view this is a case where compliance with the AHA is not sufficient to make it unlikely that there will be no interference with a site of particular significance to the native title party.
Given the nature and extent of the sites which have been identified and that the area of the proposed licence is site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38). While the grantee party is now on notice that other sites may exist, the exact location and extent of many of those sites is unknown and unless there is close liaison between the native title party and grantee party through negotiation and agreement, I find there is a real risk of interference with them.
My findings in relation to s 237(b) are consistent with my findings made in other objection inquiries involving the Bunuba people (Banjo Wurrunmurra WO04/136 and WO04/137; Banjo Wurrunmurra WO05/756; Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Caldera Resources Pty Ltd, NNTT WO07/67 and WO07/68, [2008] NNTTA 157 (21 November 2008); Banjo WurrunmurraWO07/1013). The evidence in this matter and cases referenced above demonstrate that the area of Fitzroy Crossing itself and areas to the north and east of it and extending to the north-west for over 100 kilometres are areas where there are a considerable number of areas and sites of particular significance to the native title party.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1712 to Black Mountain Gold NL is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
15 September 2009
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