Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Thomson Aviation Pty Ltd

[2011] NNTTA 38

NATIONAL NATIVE TITLE TRIBUNAL

Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Thomson Aviation Pty Ltd, [2011] NNTTA 38 (8 March 2011)

Application No:        WO10/120

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)

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The State of Western Australia

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Thomson Aviation Pty Ltd

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

Tribunal:  Neville MacPherson, Member
Place:  Melbourne
Date:  8 March 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, 35, 38, 151(2), 237

Mining Act 1978 (WA), s 63

Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Environmental Protection Act 1986 (WA)

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)

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)

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)

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 Wurrunmurrs & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Black Mountain Gold NL, WO08/639, [2009] NNTTA 109 (15 September 2009)

Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Jamie Dean Duffield, Belinda Anne Forrester, Gary John Humphrey, [2010]  NNTTA 89 (30 June 2010)

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)

Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2995) 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)

Paddy Neowarra and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007)

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/Bacame Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003)

Silver v Northern Territory of Australia (2002) 169 FLR 1

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

Walley v Western Australia (2002) 169 FLR 437

Ward v Western Australia (1996) 69 FCR 208

Representatives 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 Kevin Connell, Austwide Mining Title Management Pty Ltd

REASONS FOR DETERMINATION

1. On 7 October, 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E04/1923, E04/1925 and E04/1926 to Thomson Aviation Pty Ltd, 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). On 26 July, 2010, the Tribunal was advised by the Department of Mines and Petroleum (‘DMP’) that applications by Thomson Aviation Pty Ltd for the grant of tenements E04/1923 and E04/1926 were discontinued on 15 July, 2010. Decisions to dismiss the associated Objection Applications were made on 11 August, 2010. Accordingly, no further consideration will be given to E04/1923 or E04/1926 in this determination: E04/1925 is the ‘proposed licence.’

1. The proposed licence is overlapped by the Bunuba registered native title claim (WC99/19 – registered from 20 August 1999) by 93.04 per cent. The proposed licence comprises an area of 241.51 square kilometres and is located 56 kilometres north-west of Fitzroy Crossing, in the Shire of Derby-West Kimberley. No other native title claims overlap the proposed licence.

1. On 4 February, 2010, 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 licence (as well as the other two proposed licences that were subsequently withdrawn).

1. On 15 February, 2010, Deputy President Sumner was appointed as the Tribunal member for the purposes of conducting 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.

1. The statement of contentions and evidence of the Government party were submitted on 10 May, 2010, and 25 May, 2010. Compliance direction dates were extended several times. None of the requests to extend were opposed by other parties. The statement of contentions and evidence of the native title party were received on 1 November, 2010. At the Listing Hearing on 11 November, 2010, the grantee party informed the Tribunal that it would be relying on the statement of contentions and evidence of the Government party.

1. On 19 January, 2011, I was appointed by President Neate as the Member to conduct the inquiry.

1. All parties have agreed that this matter can be determined ‘on the papers’ (i.e., without holding a further hearing). I am satisfied that the objection can be adequately determined in this way (s 151(2) of the Act).

Legal principles

1. Section 237 of the Act provides:

237    Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

1. In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at 439-449, paras [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, paras [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, para [34]) have been strengthened.

2. 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, DMP [formerly Department of Industry and Resources (‘DoIR’)]. Standard condition 4 is also to be read with s 63AA of the Mining Act 1978 (WA) which requires approval by the 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, kept under the Aboriginal Heritage Act 1972 (WA) (‘AHA’); advise whether the proposal intersects the boundary of such registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from them that the proposed activities are acceptable.

3. With respect to issues arising under s 237(b), I also 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) (‘Maitland Parker’), at paras [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court 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). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1.

Evidence in Relation to the Proposed Act

1. The documentation of the Government party establishes the following notable underlying land tenure on the proposed licence:

• Leopold Downs Pastoral Lease K571500 (93 per cent overlap);
• Brooking Springs Pastoral Lease 3114/573 (7 per cent overlap); and
• Global Diamond Exploration Services Pty Ltd Exploration Tenement E04/1936 (5.4 per cent overlap).

1. There are two Aboriginal communities situated within the proposed licence (Wamali and Galamanda). There are also two Aboriginal communities situated within 40 kilometres of the boundary of the proposed licence (Munmarul (Milla Windi) and Biridu). There are numerous communities within a 100 kilometre radius of the subject area.

1. DIA documentation provided by both the Government party and native title party reveals four sites registered under the AHA overlapping the proposed licence, E04/1925, as follows:

• Catjuput (Site ID 12491 - Artefacts/scatter, insufficient information, open access, no restriction);
• Little Spring 1 (Site ID 12492 - Artefacts/scatter, insufficient information, open access, no restriction);
• Little Spring 2 (Site ID 12493 -  Artefacts/scatter, insufficient information, open access, no restriction); and
• Little Spring 3 (Site ID 12494 - Artefacts/scatter, insufficient information, open access, no restriction).

1. Tribunal generated iSpatial View analysis confirms that the four registered sites mentioned above overlap the proposed licence, E04/1925. A map prepared by the Tribunal’s Geospatial Services also shows that there are numerous DIA registered sites located within approximately 1 to 20 kilometres of the proposed licence. There are a large number of registered sites in a greater radius from the boundary of the proposed licence (beyond 20 kilometres). The map also shows that the proposed licence is located between the King Leopold Ranges Conservation Park, the Devonian Reef Conservation Park and Brooking Gorge National Park (within, variously, 2 to 30 kilometres). According to the map, there are no major roads or access routes within or surrounding the proposed licence.

1. According to the quick appraisal documentation of the Government party, there has been previous mineral exploration and mining activity in the area between 1969 and 2009. There are sixty four dead tenements which overlap E04/1925 by between less than 0.1 per cent and 60 per cent. Of these, thirty four were surrendered, three were withdrawn, six were forfeited, twelve were cancelled and nine expired. A Tribunal Overlap Analysis Report on the area shows that Future Act Objection Applications were lodged by the native title party in relation to three of these dead tenements (WO05/743, WO08/1014 and WO10/942). Two of these objections were withdrawn due to agreement being reached between the parties and one objection application was not accepted.

2. The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licenses in Western Australia (see Maitland Parker, at para [21] - conditions 1-4). Additional conditions require that the pastoral lessee be notified of the grant of the licence and of certain exploration activities (refer to conditions 5-6).

Two further conditions will be imposed:

·No interference with Geodetic Survey Station C 70 and mining with 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

·No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.

1. In the contentions of the Government party, a further condition (‘the proposed condition’) will also be placed on the grant of the tenement:

   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. WAD 6133/98 (WC99/19), such request being sent by pre-paid post to reach the Licensee’s address c/- Austwide Mining Title Management Pty Ltd, PO Box 1434, Wangara WA 6947 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 endorsed by peak industry groups and offered by the Kimberley Land Council.

2. The imposition of this last condition will not affect or assist the native title party, or the grantee party, as there is no such Regional Standard Heritage Agreement ‘endorsed by peak industry groups and offered by the Kimberley Land Council’ presently in existence.

3. 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 and any Regulations thereunder.

   ·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.

Evidence provided by the native title party

1. The submissions of the native title party include the signed affidavit of Mr Kevin Oscar (‘KO Aff’), affirmed “25 day of 2010” (in error, but likely to be 25 October, 2010) and made in the following terms:

   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.

   2.I am one of the native title claimants for the Bunuba Native Title Determination Application (WC99/19).

   3.I know the area where Thomson Aviation Pty Ltd, the “grantee party”, has applied for Exploration Licence Number E04/1925, the “exploration licence area”, very well, it is my country. I have been shown a map of the exploration licence area. The map I was shown is attached to this affidavit and marked “A”.

   INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

   4.The exploration licence area falls within Bunuba country. Bunuba country is the country where Bunuba language was put by ngarranggarni, in the Dreamtime. It is Bununba (sic) Country all the way from the Leopold Ranges down to Diamond Gorge. Fairfield, Mount Eliza, Phil’s camp, Mount Rose are all Bunuba Country.

   5.There is a community just north-west of Little Springs and Wamali called Waranimati located within the exploration licence area. I used to stay there all the time before the price of fuel went up. Now I go back on weekends or every couple of days and camp there.

   6.When I visit the community I go hunting and fishing in and around the exploration licence area.

   7.There is good hunting and fishing in many parts of the exploration licence areas. We hunt calamuda (bush turkey), wirrayi (kangaroo), wawanyi (goanna), any bush meat. There are lots of fish in the exploration licence area.

   8.When we go on country we take our kids to teach them about country.

   9.We use jilamana (rifles) and sometimes dogs when we hunt. The old people used to hunt with jinali (spears).

   10.We collect different types of bush vegetable foods and bush medicines on my country, including inside the exploration licence areas. For example, we collect water lilies along the rivers and creeks in that area. They are good eating.

   11.We collect koongkuberry as well from inside and around the exploration licence 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.

   12.Old people used to get bush tobacco from in and around the exploration licence areas.

   INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

   13.I know the exploration licence area very well. There are many places in my country, including inside the exploration licence area, which are very important and have great significance in the traditional religion of my community.

   14.My country, or muay, and the law we follow come from the Dreamtime, from the ngarranggarni.

   15.There is a sacred area near Little Spring, up from the main spring. Strangers are not allowed to go there without permission because it is sacred.

   16.Big Spring Bore, which is located within the exploration licence area, is a special place. We call it Yuramalay. That place is where the snake lives. He keeps the water going there.

   17.There is another place near Little Springs called Moundu-Moundi, which means “white ochre”. The old people used to collect white ochre for their ceremonies from this place.

   18.At Cajuput (sic) Spring, there is a dreamtime story there. Two big stories in that place.

   19.There is a burial site in the east side of the exploration licence area and also at Phil’s yard. We do ceremonies there every couple of years. These sites are important to our people.

   20.These are very important places. They are not marked for malngarri (white people), but we all know where they are. Mining people must not damage these places.

   21.There are many stories in and around the exploration licence area. Stories are handed down by culture, so that we can recognise our country. It’s what connects us to our Country.

   22.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.

   MAJOR DISTURBANCE TO LAND OR WATER

   23.I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.

   24.Strangers 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.

   25.If strangers arrive in our country uninvited, they might get sick or paralysed or have nightmares if they touch any sacred site.

   26.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law.

   27.If malnggari (white people) 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.

   28.Malngarri cannot help themselves to our country. They have got to ask us first. 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 making a road, and helping my community. This is because we are looking after this country, not strangers.

1. The evidence of Mr Oscar is uncontested and I accept it. Mr Oscar is one of the native title claimants. 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))

1. The Tribunal is required to make a predictive assessment as to whether, as a matter of fact, the grant of the tenement, and the 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 chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR, 442 at 449-450, para [23]) (‘Smith’). The notion of direct interference involves an evaluative judgment as to whether the future act is likely to be the proximate cause of the interference. The interference must be substantial, and not trivial, in its impact on community or social activities (Smith, at 451, para [26]). The assessment is also contextual, taking into 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, para [27]).

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, the conditions to be imposed on the exploration licence and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of the community or social activities of the native title party in relation to the area of land concerned. The Government party also relies on s 20(5) of the Mining Act, which relates to conditions and restrictions imposed on exploration activity on pastoral leasehold land.

3. The contentions of the Government party, at paragraph 4, contained a statement that the grant of the proposed tenement was not likely to interfere directly with the carrying on of the community or social activities of the native title party because there were no Aboriginal communities situated on the proposed licence. After examining the Tribunal Geospatial Services map, which revealed that two Aboriginal communities are located on the proposed licence, on 14 February, 2011, I sought a supplementary submission from the Government party in relation to this statement in the Government party contentions. The supplementary submission of the Government party was received on 15 February, 2011, and confirmed that the statement that there were no Aboriginal communities situated on the proposed licence was an inadvertent error.

[26] The fact that there are two Aboriginal communities situated within the proposed licence leads to an inference that community and social activities of an intensive nature may occur within the area. There are also a number of Aboriginal communities in the vicinity of the proposed licence, with the majority being situated around Fitzroy Crossing, which is located approximately 45 kilometres from the southern boundary. Mr Oscar lives at Fitzroy Crossing. Mr Oscar gives evidence that there is a community north west of Little Spring and Wamali called Waranimati. He says that he “used to stay there all the time...Now I go back on weekends or every couple of days and camp there” (KO Aff, at para 5).

1. Mr Oscar gives evidence that when he visits the community he goes “hunting and fishing in and around the exploration licence area” (KO Aff, at para 6). Mr Oscar gives evidence that “There is good hunting and fishing in many parts of the exploration licence areas” (KO Aff, at para 7). He says “We hunt calamuda (bush turkey), wirrayi (kangaroo), wawanyi (goanna), any bush meat” (KO Aff, at para 7). He also attests that, “There are lots of fish in the exploration licence area” (KO Aff, at para 7). Mr Oscar refers to taking the kids to teach them about country (KO Aff, at para 8) and using jilamana (rifles) and sometimes dogs to hunt (KO Aff, at para 9). Mr Oscar gives evidence that, “We collect different types of bush vegetable foods and bush medicines on my country, including inside the exploration licence areas. For example, we collect water lilies along the rivers and creeks in that area. They are good eating” (KO Aff, at para 10). He refers to collecting koongkuberry from inside and around the exploration licence area (KO Aff, at para 11) and in the right season collecting mandarra gum and taking wax from bininbalu (Spinifex), which is called barrala and used as medicine for coughs and colds. 

2. The evidence adduced by the native title party is not specific as to the number of people involved, or the frequency of the community and social activities. However, as Mr Oscar talks about going hunting and fishing when he visits the Waranimati community, where he uses the pronoun “we” in his evidence (KO Aff, at paras 7-11), I take it that he is referring to the members of the community. Other members of the native title party may undertake the same activities within the proposed licence. Mr Oscar does not identify the locations where the activities he describes are carried out: but given that he refers to these activities in the context of visiting a community located within the subject area, presumably these activities occur in areas close to the community and are likely to be within the proposed licence area.

3. Based on the evidence, I am satisfied that community and social activities are carried out in the proposed licence. The main issue under s 237(a), which I must now assess, is whether the extent of those community or social activities is such that exploration activity is likely to interfere with them.

4. The evidence of the Government party establishes that exploration and mining activity has occurred within and in the vicinity of the proposed licence, over the years, up to and including 2009. Based on the number of titles granted between 1968 and 2007, and the fact that three of these titles overlapped by approximately 50 per cent or more, and a further two titles overlapped by approximately 25 percent, it is possible that exploration and mining activity has already had an impact on the native title party’s community and social activities. On the other hand, the majority of dead tenements overlap by less than 0.5 per cent; it is not likely that these would have had any significant impact. Pastoral leasehold completely overlaps the proposed licence area, and it could be argued that this has also had an impact on the community and social activities of the native title party. There is no evidence to suggest that either of these industries have had an impact on the activities of the native title party to any appreciable extent. The evidence of the native title party establishes that, despite restrictions which may have been caused by these activities, the native title party continues to carry on a broad range of social and community activities in the area.

5. The Tribunal must have regard to the fact that the access of the grantee party 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 native title party’s claim to the extent of 241.51 square kilometres. The area of the native title party’s claim is approximately 5, 770 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; (2995) 196 FLR 250, at 262, para [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacame Pty Ltd, NNTT WO02/369. [2003] NNTTA 62 (9 April 2003), at paras [43]-[44]).

6. The Tribunal has found, on numerous occasions, that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with native title party community or social activities, except in an incidental and insubstantial way. However, each case must be evaluated on its merits, taking account of the particular facts.  

7. In 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), (‘Banjo Wurrunmurra WO04/136 and WO04/137’) the Tribunal found that there were a number of Aboriginal communities in the vicinity of the proposed licence area, with the majority being situated around Fitzroy Crossing, which was about seven kilometres south-west of the subject area. The native title party provided evidence in the form of two affidavits from native title claimant members who lived in communities located about one kilometre from the proposed licence. In that matter, both deponents gave evidence of regular fishing, hunting, collecting, camping and educative activities in and around the proposed licence. The evidence was specific as to where the activities occurred, as well as the methods used for hunting and gathering, and how age limited the extent of activities. The deponents also gave evidence that areas in the vicinity of the proposed licence were used for traditional ceremonies. Despite there being historical and current pastoral and mining activity in the subject area, the Tribunal found that the nature and intensity of the community and social activities were such that there was likely to be direct interference with them by the grant of the proposed licence and exploration activities undertaken pursuant to it. In that matter, the evidence of the deponents established that contemporary activities in the subject area occurred regularly throughout the year, and at all times of the day. Evidence was given of how members of the native title party dealt with burdens attached to the carrying on of activities, such as fences on pastoral leasehold land.

8. In comparing the matter at hand with the facts and evidence provided in Banjo Wurrunmurra WO04/136 and WO04/137, here, the evidence clearly establishes that community and social activities occur on the proposed licence area, but it is not specific enough to illustrate that interference with these activities is likely to occur. Details are not provided as to where specifically the activities are carried out, who is involved in the activities, how often they occur (times of day/times of year) or how other practices on the land have impacted on the activities of the native title party. The evidence does not outline how many people live in the communities located in the proposed licence. It may have been more probative, informative, and probably more helpful for the Tribunal, if evidence had been provided by a member of the native title party who resides in one of the communities located within the proposed licence.

9. 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’, I adopt the findings of Deputy President Sumner in Paddy Neowarra 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 para [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.

10. On balance, I find that the grant of the tenement is not likely to directly interfere with the exercise of the community or social activities of the native title party.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (special or more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the AHA shows that there are four registered sites within the proposed licence area. There may be more sites or areas of particular significance to the native title party over the proposed licence, or in the vicinity, because, the Register does not purport to be a record of all Aboriginal sites in Western Australia. 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.

2. The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the 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, recently in Maitland Parker, at paras [31]-[38] and [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), (‘Butcher Cherel’), at paras [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance which might be found to exist.

3. Mr Oscar attests in his affidavit that, “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” (KO Aff, at para 13). He then goes on to talk about five places which are of particular significance to him and the Bunuba people:

   • A sacred site near Little Spring, up from the main spring: Mr Oscar says that, “Strangers are not allowed to go there without permission because it is sacred” (KO Aff, at para 15).
   • Big Spring Bore, which the native title party call Yuramalay: Mr Oscar says that this site “is a special place...That place is where the snake lives. He keeps the water going there” (KO Aff, at para 16).
   • A place near Little Springs called Moundu-Moundi, which means “white ocre”: Mr Oscar says that, “The old people used to collect white ochre for their ceremonies from this place” (KO Aff, at para 17).
   • Catjuput Spring, where there is a dreamtime story: Mr Oscar says that there are “Two big stories in that place” (KO Aff, at para 18).
   • A burial site on the east side of the proposed licence area and also at Phil’s yard: Mr Oscar deposes that the native title party do ceremonies at these places every couple of years (KO Aff, at para 19).

Mr Oscar says that these sites are “not marked for malngarri (white people), but we all know where they are” (KO Aff, at para 20).

1. Sites at Little Spring and Big Spring Bore - Tribunal iSpatial View analysis, coupled with analysis of the Tribunal Geospatial Services map and documents supplied by the Government party and native title party, confirms that there are four DIA registered sites in close proximity (less than 1 kilometre) to Little Spring and Big Spring Bore. The three sites, entitled ‘Little Spring 1’, ‘Little Spring 2’ and ‘Little Spring 3’ in the DIA register, overlap each other and are located in the south west corner of the proposed licence, between Little Spring and Big Spring Bore. Presumably, these three registered sites correlate with the three areas of particular significance that Mr Oscar describes as being close to, or located on, the Springs in his affidavit. Taking into account the registered status of the sites, and also the dreamings and history associated with them, I accept that these areas are sites of particular significance for the native title party.

2. Catjuput Spring - Tribunal mapping, as well as the Aboriginal Heritage Inquiry System Register of Aboriginal Sites, confirms that there is a DIA registered site named ‘Catjuput’ located within the proposed licence. Presumably, this correlates with the site ‘Cajuput (sic) Spring’ mentioned in Mr Oscar’s affidavit. I accept that this is a site of particular significance to the native title party.

3. Burial Sites - Graves and cemeteries are places of great importance in most cultures and it is of great importance to protect and preserve them. Mr Oscar is not specific in his description of the location of the burial sites except for saying, “There is a burial site in the east side of the exploration licence area and also at Phil’s yard.” This wording suggests that there are two separate burial sites - one located at an area on the east side of the proposed licence area, and another located at Phil’s Yard. The Tribunal map shows Phil’s Camp Yard to be located less than three kilometres from the northern boundary of the proposed licence. Having regard to the status of these sites as burial grounds, and Mr Oscar’s evidence stating that, “These sites are important to our people”, and that the native title party do ceremonies there every couple of years, I accept that these sites are of particular significance to the native title party. Based on the affidavit evidence, and the close proximity of Phil’s Yard to the proposed licence area, I find it likely that at least one of these burial sites is located within the proposed licence. The burial site that Mr Oscar refers to, that I presume to be located within the proposed licence area, does not appear to be registered with the DIA.

4. The Tribunal map shows that there are a large number of sites within a 20 kilometre radius of the proposed licence. This leads me to the conclusion that the proposed licence is located in an area that is site rich.

5. I must now consider whether the protective provisions and procedures of the AHA, and any other protective arrangements that may be relevant, 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 para [41], and cases cited therein). In Butcher Cherel, at paras [81]-[91], various determinations in which the protective provisions of the AHA were considered in light of the intentions of the grantee party were canvassed by the Tribunal. In that matter, the Tribunal found that 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.

6. In this case, the grantee party has not provided evidence or contentions but has sought to rely on the evidence and contentions of the Government party. No evidence has been submitted as to the grantee party’s exploration intentions or the type of work that is likely to be conducted on the proposed licence. In the absence of contrary evidence, the Tribunal may assume that the grantee party will fully exercise the rights conferred by the proposed licence and also that they will act lawfully in exercising those rights (Silver v Northern Territory & Ors).

1. The area of the proposed licence appears to include five sites of particular significance to the native title party. One of these sites has not been registered, nor has its location been specifically identified (the burial site). The grantee party has not indicated that it intends to consult with the native title party before commencing work. I am concerned that the grantee party should be made aware of the location of the burial sites before gaining access to/commencing exploration activity on the proposed licence. Whilst I have no reason to believe that the grantee will not comply with the AHA and avoid areas of particular significance to the native title party, in my view, this is a case where compliance with the AHA is not sufficient to make it unlikely that there will be interference with areas or sites of particular significance to the native title party.

2. Given the nature and extent of the sites which have been identified, and that the area of the proposed licence appears to be 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. Even though the grantee party is now on notice that a site, additional to the registered sites, may exist in the proposed licence, the exact location of that site is unknown and unless there is close liaison between the native title party and grantee party, through negotiation and agreement, I find that there is a real risk of interference with it.

3. My findings in relation to s 237(b) are consistent with my findings in Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants/Western Australia/Jamie Dean Duffield, Belinda Anne Forrester, Gary John Humphrey, [2010] NNTTA 89 (30 June 2010), and also the findings in other objection inquiries involving the native title party (Banjo Wurranmurra WO04/136 and WO04/137; 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); 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 & 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) and Banjo Wurrunmurrs & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Black Mountain Gold NL, WO08/639, [2009] NNTTA 109 (15 September 2009)). The evidence in this matter, and the cases cited above, demonstrate that Fitzroy Crossing and the areas around it, in a radius of up to 100 kilometres, are areas where there are a considerable number of sites of particular significance to the native title party.

Major disturbance to land and waters (s 237(c))

1. No findings in relation to this arm of s 237 are necessary, as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).

Determination

1. The determination of the Tribunal is that grant of exploration licence E04/1925 to Thomson Aviation Pty Ltd is not an act attracting the expedited procedure.

Neville Macpherson
Member