Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/John Charlton Russel - [2010] NNTTA 90

NATIONAL NATIVE TITLE TRIBUNAL

Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/John Charlton Russel, [2010] NNTTA 90 (30 June 2010)

Applications No: WO09/922, WO09/923, WO09/924, WO09/1016, WO09/1017,
WO09/1018

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection applications

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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John Charlton Russel (grantee party)

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

Tribunal:  Neville MacPherson, Member
Place:  Perth
Date:  30 June 2010

Catch words: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – 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/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), 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/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/Black Mountain Gold NL, WO08/639, [2009] NNTTA 109 (15 September 2009), 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), Member 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 Ms Hema Hariharan, Kimberley Land Council

native title party: Ms Ania Maszkowski, 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 John Russel

REASONS FOR DETERMINATION

On 29 July 2009 and 26 August 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the NTA’) of its intention to grant exploration licences E04/1904, E04/1907, E04/1908 and E04/1905, E04/1906 and E04/1909 respectively (‘the proposed licences’), to John Charlton Russel, and included in the notices 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).
Each of the proposed licences is overlapped by the Bunuba registered native title claim (WC99/19 – registered from 20 August 1999). Details of the area, location and extent of such overlapping are as follows:

E04/1904, comprising an area of 13.06 square kilometres located 82 kilometres north of Fitzroy Crossing in the Shire of Derby-West Kimberley – overlap of 100 per cent;
E04/1905, comprising an area of 9.8 square kilometres located 79 kilometres north-westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley – overlap of 100 per cent;
E04/1906, comprising an area of 13.06 square kilometres located 88 kilometres north-westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley – overlap of 20.5 per cent;
E04/1907, comprising an area of 3.26 square kilometres located 80 kilometres north-westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley – overlap of 100 per cent;
E04/1908, comprising an area of 3.26 square kilometres located 78 kilometres north-westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley – overlap of 100 per cent; and
E04/1909, comprising an area of 13.1 square kilometres located 84 kilometres north-westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley – overlap of 100 per cent.

No other native title claims overlap the proposed licences.

On 30 November 2009, Banjo Wurrunmurra & Others, on behalf of the Bunuba Native Title Claimants (WC99/19), made an expedited procedure objection application to the Tribunal in respect of the proposed licences (designated WO09/922 (E04/1904), WO09/923 (E04/1907) and WO09/924 (E04/1908)).
On 14 December 2009, Banjo Wurrunmurra & Others, on behalf of the Bunuba Native Title Claimants (WC99/19), made a further expedited procedure objection application to the Tribunal in respect of the proposed licences (designated WO09/1016 (E04/1905), WO09/1017 (E04/1906) and WO09/1018 (E04/1909)).
On 14 December 2009, (in respect of WO09/922 to WO09/924), and on 11 January 2010, (in respect of WO09/1016 to WO09/1018), Deputy President Sumner (heretofore referred to as “Hon C J Sumner” and hereinafter in this determination referred to as “Deputy President Sumner”) was appointed as the Member for the purposes of the conduct of the inquiry. 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 27 May 2010, following a number of conferences and 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, the Government party made a request for the Tribunal to proceed to make a determination on the submissions of the parties. The native title party supported the request and the grantee party was duly informed.
Contentions and evidence were lodged by the Government party and native title party. The grantee party is to rely on the contentions and evidence of the Government party. The Government party and the native title party agreed that this matter could be determined ‘on the papers’ (i.e., without holding a further hearing). The grantee party was duly informed. I am satisfied that the objection can be adequately determined in this way (s 151(2) NTA).
On 28 May 2010, I was appointed by Deputy President Sumner as the Member for the purposes of the conduct of the inquiry.

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’), the Tribunal 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, DMP, 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), Deputy President 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 licences:

E04/1904

·   Fairfield Indigenous Owned Pastoral Lease 3114/748 (45.1 per cent overlap);
·   Leopold Downs Pastoral Lease K57 1500 (54.9 per cent overlap).
E04/1905
·   Fairfield Indigenous Owned Pastoral Lease 3114/748 (100 per cent overlap).
E04/1906
·   Fairfield Indigenous Owned Pastoral Lease 3114/748 (20.5 per cent overlap);
·   Napier Downs Pastoral Lease 3114/682 (79.5 per cent overlap).
E04/1907
·   Fairfield Indigenous Owned Pastoral Lease 3114/748 (100 per cent overlap).
E04/1908
·   Fairfield Indigenous Owned Pastoral Lease 3114/748 (100 per cent overlap).
E04/1909
·   Fairfield Indigenous Owned Pastoral Lease 3114/748 (100 per cent overlap).

In the Government party documentation, there are no Aboriginal communities identified within the area or in the near vicinity of the proposed licences.
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) (‘AHA’), entirely overlapping the proposed licences E04/1907 (WO09/923) and E04/1908 (WO09/924) – The Tunnel (Site ID 13367 – permanent register, closed access, no restriction).
The map provided by the Tribunal’s geospatial unit, which was circulated to all parties and uncontested, shows the registered site mentioned in para [15] above which overlaps the proposed licences E04/1907 and E04/1908. In addition, the map shows there are numerous DIA registered sites located approximately 5 to 15 kilometres within the vicinity of the proposed licences.
Further, the Tribunal’s geospatial map reveals that there are two Aboriginal communities, Wamali and Galamanda, located within the vicinity of the proposed licences (within approximately 20 kilometres). The map also shows that the proposed licences are located between the King Leopold Ranges Conservation Park, the Devonian Reef Conservation Park and the Windjana Gorge National Park (approximately 10 to 15 kilometres). The Fossil Downs Homestead is located approximately 60 kilometres south east of the proposed licences. The map does not reveal there are major roads or access routes within or surrounding the proposed licences.
Government party documentation indicates there is no current mineral exploration in the area of the proposed licences; however, there are three ‘pending’ exploration licence applications, viz., E04/1917 (overlapping E04/1906), E04/1918 (overlapping E04/1909) and E04/1919 (overlapping E04/1905). Previous exploration activity is evidenced between 1972 and 2006. Two previously granted exploration licences affected, E04/1177 (WO03/896), forfeited in August 2008 and E04/1462 (WO05/206), surrendered in February 2008, were the subject of objection applications by the native title party. In both cases, agreement was reached and the objections withdrawn.
The grant of the proposed licences 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 licences E04/1909 and E04/1906 will be subject to a condition requiring no interference with the use of the Aerial Landing Ground and mining thereon confined to below a depth of 15 metres from the natural surface (condition 7).
In the contentions of the Government party, it is stated that a further condition (“the proposed condition”) will be placed on the grant of the proposed licences:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Bunuba People, the applicants in Federal Court no. WAD 6133/98 (WC99/19), such request being sent by pre-paid post to reach the Licensee’s address, PO Box 514, Derby WA 6728 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Bunuba People the Regional Standard Heritage Agreement endorsed by peak industry groups offered by the Kimberley Land Council.’
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 unsworn affidavit of Kevin Oscar (‘KO affidavit’), accepted as an unsigned witness statement, states:
‘AFFIDAVIT OF KEVIN OSCAR
I, Kevin Oscar, of 236 Henwood Close, Fitzroy Crossing, in the State of Western Australia, affirm:
1.     My name is Kevin Oscar. My Aboriginal name is Indinyu. I have junggurra skin. I was born on 7 June 1957. I grew up all over Leopold Downs, Brooking Springs, Fairfield Downs and Millawindi. All over Bunuba Country. I am Bunuba from my mother’s family and my stepfather. My mother line is from Janju.
2.     I am one of the native title claimants for the Bunuba Native Title Determination Application (WC99/19).
3.     I know the area where John Charlton Russel, “the grantee party”, have applied for Exploration Licence Numbers E04/1904, E04/1907 and E04/1908 in relation to WO09/922-924 and E04/1905, E04/1906 and E04/1909 in relation to WO09/1016-1018 “the Exploration Licence Areas”, very well, it is my Country. I have a block near Mount Benh which is near the Exploration License Areas. The maps I was shown is attached to this affidavit and marked “A”.
4.     All the Exploration License Areas are within the Bunuba native title claim area; they are all located in the same area. They are all located in an area which has great cultural significance for the Bunuba people.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5.     The Exploration Licence Areas 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, Phil’s camp, Mount Rose, its all Bunuba Country.
6.     We travel around the Exploration Licence Areas at least once a month for many reasons, hunting, fishing and camping. When the road is good we go out to the Exploration Licenses Areas more often. When I used to work on the cattle station go home through the Exploration License Areas all the time.
7.     The area around Mount Broome including the Exploration License Area is an old camping place including where the Exploration License Areas are. We held Law ceremonies there in the early days.
8.     There is good hunting and fishing in many parts of the Exploration Licence Areas. There is good hunting and fishing in may parts of the Exploration License Areas. We hunt wawanyi or goanna and wirrayi or hill kangaroo around Black Hills and inside the exploration licence areas. 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.
9.     We also go fishing in the Exploration area, after rains and water holes fill up. We fish for jambinbaru or black bream and eel at Richendra River which is in and around the exploration licence area and any billabong or creek in the exploration licence area. We fish around and the Exploration Licence Area and at any creek, waterhole or billabong, inside the exploration License Area.
10.   Richendra river runs right near the Exploration License Area. Mount Rose is located around the Exploration License Area. Mount Rose and Richendra Gorge are really sacred places. There are many stories for those places; we don’t like people interfering around there. We have Aboriginal names for those places.
11.   We used to go out there a lot, almost every second day jus to be doing cultural things on country when we lived in the area. But I moved away from the area last year. I try to get out there as much as possible now. Usually once a month.
12.   We collect different types of mayi, or bush vegetable foods and bush medicines on my country, including the Exploration Licence Areas. For example, we collect water lilies along the rivers and creeks in that area. They are good eating. You can get some bush medicines like red grass and you boil up and drink. It’s good for your chest. You can put it in a bucket and shower in it as well. We also collect a wax, if you burn it off it smells. It’s good for colds. Kind of like Vicks. You can also smash it up and rub it all over your body. It makes you well.
13.   We collect koongkuberry as well from inside and around the Exploration License Area. 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 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.
14.   In and around the exploration license areas, especially Mount Rose you find the goorl tree. It has a sandalwood type smell. It is used for smoking the house when anyone has passed away.
15.   Another medicine of the goorl tree giri giri it is the sap. You crush it up and use it for sores. To eat it you dip your finger in it and lick it. It doesn’t taste very nice.
16.   Old people used to get bush tobacco from in and around the Exploration License Areas. Like a vine bunch together. To roll it out and dry it, crush it up and chew it. It’s called gilala.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
17.   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.
18.   My country, or muay, and the Law we follow come from the Dreamtime, from the ngarranggarni.
19.   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.
20.   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.
21.   There are many stories for in and around the exploration license areas, it is close to black hills. Men and women conduct ceremonies that way. We can’t tell anyone it is secret. Every year we do the ceremony.
22.   Stories are handed down by culture, so that we can recognise our country. It’s what connects us to that Country, our Country.
23.   There are a lot of rock paintings and cave paintings in and around Mount Broome and through the Leopold Ranges there, which is very close to the Exploration License Areas. We remember the camps of our old people up and around the Mount Broome area and down into the Exploration License Areas. 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. The exploration license areas are all very special to us and the old people, all of it.
24.   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 is 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.
25.   Mount Broome is very important place for us, the whole area is a special place including 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. Strangers have to ask somebody if they want to near those places. It is generally a place where people should not go.
26.   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 from malngarri or white people, but we all know where they are. Mining people must not damage these places. There are also old Law Grounds at Lanmaloowa or Fossil Downs Homestead. We usually swap the locations for our Law business, every Bulurru or wet season.
27.   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 they know how to look after it.
28.   The mining mob must come and see us and we might say no. Or we might talk with them and make an agreement.
MAJOR DISTURBANCE TO LAND OR WATER
29.   I am aware of the activities which the grantee party could do on the Exploration Licence Areas under the Mining Act if they are granted the exploration licences.
30.   Malngarri white people 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. If strangers arrive in our country uninvited, they might get sick or paralysed if they touch any sacred site. 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.
31.   If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law. That’s why we worried about strangers coming to our country because they just jump in anyway.
32.   If malngarri damage a site, artifact 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.
33.   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.
34.   Malngarri cannot help themselves to our country. They have got to ask us first. If we say, or ‘No’, they must leave our country, but if we say, ‘Yes’, they can stay and talk with us. If they make ‘money’ out of my country, they can maybe give my community a little bit because they are taking something from our country our land.
35.   If they dig without asking it is a very bad thing. He might get a bit mad or go no good in the guts, a stomach ache. I know people who went out there without permission. They didn’t last long they ended up being crook, really crook. There are spiders out there that bit you and can make you sick, you can only see him out there. There are death adders too.
36.   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 Oscar is uncontested and I accept it. Mr Oscar is one of the native title claimants and even though he is not one of the named persons comprising the applicant and registered native title claimant, I accept that he has the necessary authority to speak for country 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 [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 and within the vicinity of the proposed licences over the years up to and including 2006. While it is possible, based on the number of titles granted between 1972 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 Oscar states that members of the native title party still enjoy access to the area of the proposed licences 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. However, in relation to paragraphs 6 to 13 of his affidavit, which is relevant to community or social activities, Mr Oscar uses the pronoun ‘we’ and I take that the use of ‘we’ is to refer to his family group, and that other members of the native title party may undertake the same activities within the proposed licences.
There are two established Aboriginal communities within or in the near vicinity of the proposed licences which might help support an inference that the community or social activities are of an intensive nature. However, Mr Oscar says that is now lives in Fitzroy Crossing, having within the past year moved away from the area of the proposed licences (KO affidavit, para 11). Fitzroy Crossing, being the nearest major population centre, is some 80 kilometres south of the proposed licences. Mr Oscar states ‘We used to go out there a lot, almost every second day just (sic) to be doing cultural things on country when we lived in the area.’ ‘I try to get out there as much as possible now. Usually once a month’ (KO affidavit, paras 6 and 11).
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), Deputy President Sumner (‘Banjo Wurrunmurra WO04/136 and WO04/137’), but the distance from, and the inaccessibility of, the area of the proposed licences means that the level of community or social activities in the present matter was not the same as was found to exist in that matter.
The evidence establishes that Law ceremonies were conducted in the vicinity of the proposed licences 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’ (KO affidavit, para 26) 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 licences overlaps the area of the native title party’s claim to the extent of 54.82 square kilometres. The area of the native title party’s claim is approximately 5,771 square kilometres, much larger than the area of the proposed licences, 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), Member John Sosso (now Deputy President 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 the findings of Deputy President Sumner 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 AHA shows one closed access site entirely within proposed licences E04/1907 and E04/1908, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area or within the vicinity of the proposed licences. 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 licences 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), Member 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 Oscar states there are areas and sites of particular significance to the native title party located in and around and through the ‘Exploration Licence Areas’ (KO Affidavit, paras 7, 10, 20, 23, 24, 25, 26). He refers to the area of Mount Broome and the Leopold Ranges – ‘Mount Broome is a very important place for us’ where there are old people buried in the rock’ (KO affidavit, para 25). ‘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’ (KO affidavit, para 20). There are ‘cave paintings in around and through Mount Broome and through the Leopold Ranges there.’ ‘The exploration license areas are all very special to us and the old people, all of it’ (KO affidavit, para 23). Mr Oscar is describing an area along the Leopold Range, including the Mount Broome area which extends for over 100 kilometres and his evidence is not specific as to the location of fossils, human remains, rock and cave paintings and artefacts in relation to the proposed licences. Nevertheless, the area of the proposed licences is located within and near vicinity of the area described by Mr Oscar. I have no doubt that they are sites of particular significance to the native title party and the area mentioned, therefore, maybe relatively site rich. Mount Broome is some 10 to 15 kilometres north easterly of the proposed licences and is located within the King Leopold Ranges Conservation Park.
Various areas and sites are described by Mr Oscar as ‘sacred’, ‘special’ and ‘important’. The Richendra River and Mount Rose ‘are really sacred places’ located in the area of the proposed licences where there are ‘many stories’ (KO affidavit, para 10). There are also ‘special place stories’ for Richendra Gorge and Black Hills River (KO affidavit, para 24). Tribunal mapping shows Richenda Gorge is located some 5 to 10 kilometres from the proposed licences. ‘Living Water around the Leopold Ranges and also in and around the exploration licence area’ is ‘special to us’ and ‘We don’t want like people getting to close to that area’ (KO affidavit, para 24). Mr Oscar states there are Old Law grounds located at the Fossil Downs homestead and ceremony grounds on and around the exploration area (KO affidavit, paras 7 and 26). ‘These are very important places. They are not marked for malngarri or white people, but we all know where they are’. ‘We usually swap the locations of our Law business, every Bulurru of Wet Season’ (KO affidavit, para 26). The Tribunal mapping locates the Fossil Downs homestead as approximately 60 kilometres from the proposed licences and it is unlikely that this area will be interfered with by the proposed 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 the areas of Mount Broome and the Leopold Ranges and Richenda Gorge, Living Water, sites containing human remains, rock and cave paintings and ceremony grounds, located within the vicinity of the proposed licences are all areas or sites of particular significance to the native title party. In addition, the evidence of the native title party and the Government party in relation to the DIA register shows that one site (ID no 13367, mythological, painting and engraving) is located entirely over the proposed licences E04/1907 (WO09/923) and E04/1908 (WO09/924). Although, Mr Oscar does not specifically refer to the registered site, he describes areas of particular significance to the native title party that is likely to encompass that particular area and site. As there are areas and sites of particular significance to the native title party, within the vicinity of the proposed licences, there is the potential for them to be interfered with by exploration activity. Further, the proposed licences are located within proximity of three conservation parks as mentioned in para [17] and within the vicinity of numerous DIA sites which surround the proposed licences.
I also have regard to the findings of the Tribunal in Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Kevin Peter Sibraa, WO05/756, [2007] NNTTA 21 (16 March 2007) at [24]-[34] (‘Banjo Wurrunmurra WO05/756’), 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), Deputy President Sumner, at [42]-[54] (‘Banjo Wurrunmurra WO07/1013’), and Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Black Mountain Gold NL, WO08/639, [2009] NNTTA 109 (15 September 2009) at [33]-[35]) (‘Banjo Wurrunmurra WO08/639’), where Deputy President Sumner found that areas within the vicinity of the proposed licences contained areas and sites of significance to the native title party. 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 Oscar evidences concerns about mining companies ‘coming onto my country’ (KO affidavit, para 30) without permission and consultation with traditional owners. Mr Oscar 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’ (KO affidavit, paras 30 and 32). Mr Oscar states: ‘We know that malngarri don’t follow our Law (KO affidavit, para 34). ‘That’s why malngarri have to slow down and come and meet with us’ (KO affidavit, para 34). Without placing undue weight on this evidence, it is corroborative 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 licences. In the absence of any 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 in consultation with the native title party. 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 licences 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 the findings made by Deputy President Sumner in other objection inquiries involving the native title party (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 Wurrunmurra WO07/1013 and Banjo Wurrunmurra WO08/639). The evidence in this matter, and the cases referenced above, demonstrate that the area of Fitzroy Crossing itself, and the 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 licences E04/1904, E04/1905, E04/1906, E04/1907, E04/1908 and E04/1909 to John Charlton Russel are not acts attracting the expedited procedure.

Neville MacPherson
Member
30 June 2010