Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Caldera Resources Pty Ltd

[2008] NNTTA 157

NATIONAL NATIVE TITLE TRIBUNAL

Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Caldera Resources Pty Ltd, [2008] NNTTA 157 (21 November 2008)

Application Nos:             WO07/67 and WO07/68

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants (WC99/19) (native title party)

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The State of Western Australia (Government party)

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Caldera Resources Pty Ltd (grantee party)

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

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  21 November 2008

Catchwords:  Native title – future act – 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, 109(3) 151(2), 237

Mining Act 1978 (WA), ss 20(5), 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 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

Billy Oscar, Lionel Jumbarra and Jonny Bell/Western Australia/Bazco Pty Ltd, NNTT WO98/164, [1998] NNTTA 194 (5 August 1998), Kim Wilson

Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea

Cheinmore 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), J Sosso

Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

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

The Miriuwung Gajerrong # 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, NNTT WO04/315 and WO05/48, [2006] NNTTA 74 (13 June 2006), Hon C J Sumner

Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Ward v Western Australia (1996) 69 FCR 208

Representative of the

native title party:            Mr Robert Houston, Kimberley Land Council

Representatives of the     Mr Domhnall McCloskey, State Solicitor’s Office

Government party:         Mr Greg Abbott, Department of Industry and Resources

Representative of the
grantee party:                 Mr Kevin Connell, Austwide Mining Title Management Pty Ltd

REASONS FOR DETERMINATION

1. On 27 September 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E04/1607 and E04/1608 (‘the proposed licences’) to Caldera Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, are ones which can be done without the normal negotiations required by s 31 of the Act).

2. The area, location and extent to which each of the proposed licences is overlapped by the registered native title claim of the Bunuba People (WC99/19 – registered from 20 August 1999) are as follows:

• E04/1607, comprising an area of 71.68 square kilometres located 32 kilometres north-westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley – overlap 37.6 per cent; and

• E04/1608, comprising an area of 214.99 square kilometres located 45 kilometres north-westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley – overlap 20.1 per cent.

No other native title claims overlap the proposed licences.

1. On 25 January 2007, Banjo Wurrunmurra & Others on behalf of Bunuba Native Title Claimants (WC99/19) (‘the native title party’) made expedited procedure objection applications to the Tribunal in respect of the proposed licences (designated WO07/67 in relation to E04/1607 and WO07/68 in relation to E04/1608).

2. 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 lodgment of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

1. At an adjourned status conference on 16 July 2008, following a number of conferences and multiple requests (usually made with the consent of all parties) to extend the time required for compliance with directions in an attempt to negotiate a heritage protection agreement, the grantee party representative reported that agreement was unlikely to be reached. The parties agreed that the matter should proceed to an inquiry, subsequent to which contentions and evidence were provided by each party.

2. I note that it has taken 21 months for this matter to be ready for inquiry.  Obviously this is unacceptable for what is supposed to be an expedited procedure.  There were a number of reasons for the delay including difficulty in the grantee party’s representative being able to contact the grantee party, referral to the non-participating grantee party list and vacation of directions for a period when it appeared that the grantee party was not actively participating in the process, difficulty and delay in the native title representative obtaining instructions from Working Group Meetings on the grantee party’s proposal and delays in the native title party collecting evidence. Despite the existence of these reasons I reaffirm that the Tribunal should take steps to resolve expedited procedure objections as expeditiously as possible, while taking into account the desire of the parties to resolve matters by agreement.  Parties are expected to acknowledge the Tribunal’s obligations in this respect and cooperate with a view to disposing of objections in a timely manner.

3. At a listing hearing on 9 October 2008, the grantee party representative, Mr Kevin Connell expressed concern regarding the submission of unsigned affidavits by the native title party. Mr Robert Houston, representing the native title party, explained that while he had personally gathered the material for the affidavits from the deponents, George Brooking and Selina Middleton, the remote location had hindered the swearing and signing of those affidavits once formalised in writing. Mr Houston advised that steps were being taken to secure the deponents’ signatures and witnessing by a Justice of the Peace. Affidavits affirmed by Mr Brooking were lodged with the Tribunal on 24 October 2008 and those of Ms Selina Middleton lodged on 7 November 2008.

4. At the listing hearing the parties reported that all contentions and evidence had been lodged and requested that the inquiry be heard ‘on the papers’, that is without holding a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2) NTA).

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] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [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 [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 as described in Walley (at [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, Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act 1978 (WA) which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘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), Hon C J Sumner (‘Maitland Parker’) at [31]-[33], [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).

Preliminary issue

1. Much of the evidence provided by the parties (see for instance the affidavits of Mr Brooking and Ms Middleton) relates to the entire area of the proposed licences while the registered claim of the Bunuba People overlaps only 37.6 per cent of E04/1607 and 20.1 per cent of E04/1608. This raises the question of the status of the evidence not specifically concerned with the area of the proposed licences overlapped by the Bunuba claim. I adopt my findings in The Miriuwung Gajerrong # 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, NNTT WO04/315 and WO05/48, [2006] NNTTA 74 (13 June 2006), Hon C J Sumner (at [60]-[74]), recently summarised in Banjo Wurrunmurra & Others on behalf 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 - WO07/1013’)(at [12]-[14]) as follows.

• The right to negotiate is based on the existence of a registered native title claimant or registered native title body corporate who are defined as native title parties under the Act.

• The existence of a native title party means that an objection to the expedited procedure may be made in relation to the proposal to grant an exploration licence even if there is only a small overlap between the proposed exploration licence area and that of the registered claim or determination.

• However, ‘the land or waters concerned’ in s 237 of the Act is the area of the proposed tenement but only that part of it which is covered by a registered claim or determination of native title.

• While the evidence which relates to the whole area of the proposed licences is not entirely irrelevant it can only be considered insofar as it assists the Tribunal to decide the issues raised by s 237 in the area of overlap between the Bunuba registered claim and proposed licences (‘the subject areas’).

Evidence in relation to the proposed act

1. Government party documentation establishes the following notable underlying land tenure on the proposed licences:

E04/1607

• Brooking Springs pastoral leases 3114/573 and 398/822 (85.3 per cent overlap);

• Stock Route Reserve 12475 (13.0 per cent overlap); and

• Watering Place Reserve 1579 (1.7 per cent overlap).

E04/1608

• Quanbun Downs pastoral lease 3114/1269 (82.1 per cent overlap);

• Brooking Springs pastoral lease 3114/573 (16.2 per cent overlap);

• Repeater Station Site Reserve 39456 (less 0.1 per cent overlap); and

• Road Reserve – Great Northern Highway (less 0.1 per cent overlap).

1. There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licences.

2. Department of Indigenous Affairs (‘DIA’) documentation provided by both the Government party and the native title party reveals four sites registered under the Aboriginal Heritage Act 1972 (WA) overlapping E04/1607 and another three registered sites overlapping E04/1608 as follows:

E04/1607

• Site ID 12736 – Bambururu (mythological, repository/cache – permanent register, closed access, no restrictions), partially overlapping the subject area;

• Site ID 12803 – Oscar Range Cache (lodged for registration, closed access, no restrictions), partially overlapping the subject area.  Both the Bambururu and Oscar Range Cache sites are in a similar location and either comprise an area of 10 square kilometres or have a buffer zone around them to that extent;

• Site ID 13401 – Maarowia (mythological, artefacts/scatter, water source – permanent register, closed access, no restrictions), partially overlapping the subject area; and

• Site ID 13402 – Piiyayi (mythological, modified tree, artefacts/scatter, hunting place, water source – permanent register, closed access, no restrictions), partially overlapping the subject area. Both the Maarowia and Piiyayi sites are in a similar location and either comprise an area of 10 square kilometres or have a buffer zone around them of that extent.

E04/1608

• Site ID 13446 – Quanbun Butte (mythological, skeletal material/burial, man-made structure, massacre, camp – permanent register, open access, no restrictions), approximately 5 kilometres south of the subject area;

• Site ID 13447 – Wuindjumurru Rockhole (artefacts/scatter, grinding patches/grooves, water source – permanent register, open access, no restrictions), approximately 8 kilometres south of the subject area; and

• Site ID 13748 – Pangkalkaykaykran (ceremonial, mythological – permanent register, closed access, access to initiated males only), wholly within the subject area.

1. There is also a site ID 14431 Oscar Range (painting, grinding patches, grooves, permanent register, open access, no restriction) which is on the claim area and abuts the subject area of E04/608 to the north but does not overlap it.

2. Government party documentation indicates that an active petroleum exploration permit EP 453 substantially overlaps the proposed licences. There is currently further petroleum associated activity with minimal encroachment on to E04/1608 and a minor portion overlapping that proposed licence has been identified for future petroleum exploration activity. There is no current mineral exploration or mining activity in the area of the proposed licences however previous exploration activity is evidenced between 1963 and 2005.

3. Four previously granted tenements E04/996 (WO97/278), E04/1157 (WO01/94), E04/1089 (WO98/164), and E04/1202 (WO01/280) which partially overlap one or both of the proposed licences have been the subject of objections by the native title party or its pre-combination applicants. In relation to WO01/280 and WO01/94 agreements were reached and the objections withdrawn. The remaining two objections, WO97/278 and WO98/164, were finalised through determination that the expedited procedure does not apply (by consent in the case of WO97/278).

4. Two exploration licences E04/1456 and E04/1457 applied for by the grantee party in 2004 wholly overlap the proposed licences and have also been the subject of previous objections by the native title party. In these cases, those objections were dismissed following withdrawal of the tenement applications.  

5. The grant of E04/1607 and E04/1608 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 imposed require that the pastoral lessee is notified of the grant of the licences and of certain exploration activities (conditions 5-6).

6. In addition the grant of E04/1607 will be subject to the following conditions:

• Seeking permission from the Minister responsible for the Mining Act 1978 prior to mining on Watering Place Reserve 1579 (condition 7); and

• Consent to mine on Stock Route Reserve 12475 granted subject to no mining operations being carried out on the Reserve which restrict the use of the reserve (condition 8).

1. The grant of E04/1608 will also be subject to conditions restricting mining activities in the vicinity of the Great Northern Highway or any other road, geodetic survey stations, and any telecommunications microwave repeater station (conditions 7, 8, 10 and 11).

2. A further condition requires permission to be sought from the Minister responsible for the Mining Act 1978 prior to mining on Repeater Station Site Reserve 39456 (condition 9).

3. The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their 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.

1. The grantee party provided a Statement of Contentions (‘SC’) dated 6 October 2008 signed by Kevin Connell of Austwide Mining Title Management Pty Ltd on behalf of his clients. The proposed licence area is prospective for the discovery of diamond mineralization. The grantee party sets out its intentions with respect to the protection of Aboriginal heritage, liaison with the native title party and compliance with the mining and environmental regime. The grantee party says that in excess of 90 per cent of all exploration does not result in the discovery of a viable resource and summarises its intentions with respect to ground disturbance and interference with local communities as follows:

   ‘(16)Disturbance of the land will be kept to the bare minimum in the determining of the geological prospectivity of the land the subject of the Licences.

   (17)Exploration upon the Licences will result in minimal impact upon the surface of the land and will not interfere with the local communities.’

Evidence provided by the native title party

1. The submissions of the native title party include the affidavits of George Brooking and Selina Middleton made in the following terms:

E04/1607

‘AFFIDAVIT OF GEORGE BROOKING

I, George Brooking, Pensioner, of Bungardi Community, on Brooking Springs Pastoral Lease, near Fitzroy Crossing, in the State of Western Australia solemnly and sincerely declare and affirm THAT:

1. My name is George Brooking. My Aboriginal name is Manjanjirr. I have junggurra skin, or subsection identity. I was born in the 1930s at Gurrangaja, on Brooking Springs Pastoral Lease. Brooking Springs Homestead is located near Gurrangaja. I am also called Banggardi-wanggu which means ‘Banggardi-belonging-to’ and Manmaral-wanggu which means ‘Manmaral-belonging to’. My mother was an elder sister of the mother of Stanley Holloway, my cousin. They were two Gooniyan manayi, or sisters.
2. I am one of the senior people for the Bunuba Combined Native Title Determination Application (WAG 6133/98). Under our Law I have authority to speak about Bunuba land matters.
3. I know the area where Caldera Resources, ‘the grantee party’, have applied for Exploration Licence E04/1607 very well and I have been shown where this area is on the map. This is part of my country and I worked as a stockman on this country as a young fella. Gurrangaja, where I was born is located close to the exploration tenement area. This is good cattle country. We used to look after the sites on the exploration area when we worked on this country.
4. I am aware of the activities which the grantee party could perform under the terms of the exploration licence, if granted.

Interference with community and social life

5. The exploration licence area is on Bunuba country.
6. We regularly go camping in the exploration tenement area. I was there last month. There are loads of springs or Biya in this area which are good to camp next to. We get fish and hunt in the exploration area. We hunt Wanyirri or river wallabies, wawanyi or goanna, minaji or porcupine and wirrayi or hill Kangaroo all through this country.
7. There are other types of bush tucker in the area of the exploration tenement area too. There is fruit from the mandarra tree which grows along the creeks and other bush vegetables or mayi such as nguju which is a type of white berry that grows on rocky ground in the hill. In the wet season we also get gum from the trunks of mandarra trees for chewing.
8. The old people used to camp on this country when they travelled from Fitzroy Crossing to Brooking Gorge Station. They would camp next to the Biya or springs.

Interference with sites of particular significance

9. My country, or muay, and the Law we follow comes from the Dreamtime or Ngarranggarni. There are many places inside and around the exploration tenement area which are very important and have great significance to Bunuba people. It is difficult for me to tell you exactly where all these places are just looking at the map. It would better if we could go there and then I could show all the sites that are in the exploration tenement area.
10. I used to look after these places as a young fella working on the station. There are Biya or springs there that are significant to Bunuba people around Yhinangganyarra or Twelve Mile Yard. The old people used to camp around these springs and you can sometime find old artifacts here.
11. Most of the sites on the exploration tenement area are at the base of the Oscar Range. There is a cave in the Oscar Range on or near the northern edge of the exploration tenement area that was used to as a burial site. I can’t say for sure exactly where it is without going there but I know that it is close to the exploration tenement area shown on the map.
12. Us old people are looking after all these important places in our country. We dawa-ngarri gurama look-out-gida muay nyiringga. This means, ‘we are the boss men looking out for our country.’ Anything that moves from those areas that have been left for us to look after will cause troubles amongst our people. We need to be able to show our young people what’s out there. These troubles will affect everyone who lives around the exploration area.

Major disturbance to land or waters

13. 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.
14. Malngarri must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old people and from the early days. Our old people used to trade gunyju or bamboo spear shafts, particularly around the Brooking Gorge area, through wirnan or trading relationships. Some of the people we trade with were and still are strangers in our country. That’s why we are frightened if strangers arrive in our country uninvited. They might get sick or paralysed if they touch any sacred site. That why were are frightened to tell malngarri because they have got their own way. We know that malngarri don’t follow our law. That’s why malngarri have to slow down and come and meet with us.
15. If malngarri damage a wungurru garawan or living water or a ngarranggarni or dreaming tree, we don’t feel good. We feel very sad, like someone close to us has died. We feel gandayi-yarda yarranggu muay. That means ‘we feel sad for our country.’
16. If blackfellas damage any ngarranggarni or dreaming in my country they would get sick. We might hold a meeting with him and tell him not to touch that place again.
17. Malngarri cannot help themselves to our country. They have to ask us first. If we say no they must leave our country but if we say yes they can stay and talke (sic) with us.
18. 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 Ngarranggari or Dreamings. If we say they can drill, we expect something to come back to us, like help making a road, or getting a motor car, just like if we were trading with partners or wirnan. This is because we are looking after this country, not strangers.’

1. The affidavit of Mr Brooking in relation to E04/1608 was provided in substantially similar terms with the exception of paras 10, 11, 12 which read:

   ‘…10. I used to look after these places as a young fella working on the station. There are Biya or springs there that are significant to Bunuba people in the exploration tenement area. The old people used to camp around some of these waterholes and springs or Biya and you can sometime find old artifacts here.

   11. There is also a rock in the tenement area which is significant to the Bunuba people. I can’t remember exactly what the story is about this rock but I could show you were (sic) it is.

   12. The old people told me about a massacre site near Quanban Butte where some of the old people were killed.’

Paragraph 13 of the E04/1608 affidavit is identical with paragraph 12 of the E04/1607 affidavit and the balance of the affidavit is the same and renumbered.

‘AFFIDAVIT OF SELINA MIDDLETON

I, Selina Middleton, CDEP worker, of Junjawa Community, near Fitzroy Crossing, in the State of Western Australia solemnly and sincerely declare and affirm THAT:

1.My name is Selina Middleton. I have Nyaudu skin. My mother was from the Mulangoo tribe around Mornington country and my father was a Gooniyandi man.

2.I am a claimant for the Bunuba Combined Native Title Determination Application (WAG 6133/98). Under our law I have authority to speak about Bunuba land matters.

3.I know the area where Caldera Resources, ‘the grantee party’, have applied for Exploration Licence E04/1607 well and have been shown where this is on a map. I regularly visit this area and have been told a lot of the stories and shown a lot of significant places by the old people.

4.I am aware of the activities which the grantee party could perform under the terms of the exploration licence, if granted.

Interference with community and social life

5.The exploration licence area is on Bunuba country.

6.We regularly go camping in the exploration tenement area. We call this country devil devil country because of the black soil. There are many swimming holes, springs or Biya and visiting places in the exploration tenement area. These are good places to camp and get food.

7.We go there and fish and hunt in the exploration area. We hunt bush turkey, wawanyi or goanna, minaji or porcupine and wirrayi or Kangaroo all through this country. It’s like a supermarket to us.

8.There are other types of bush tucker in the area of the exploration tenement area too. There are berries all up to the range and they are only found in this area. We get other types of bush vegetables and bush fruit here.

Interference with sites of particular significance

9.There are many places inside and around the exploration tenement area which are very important and have great significant to Bunuba people.

10.There are Biya or springs there that are significant to Bunuba people in the exploration tenement area. My grandparents used to work in this country. The old people used to stay in the exploration area around the Biya when they walked from town to Leopold Station. There are lots of old camp sites all through this country and you can sometime find artifacts like old spear heads and grinded stones.

11.Jandamarra used to go all through the tenement area and would retreat and hide in the Oscar Ranges north of the tenement area. He would come down and fight the gardiya and then retreat into the hills.

12.I know there is a place called Garnibiri at the foot of the Oscar Ranges, near the northern edge of the tenement area where a traditional owner was buried in a cave. The remains of this old person needs to stay in the cave and not be disturbed.

13.There is a story about a man who lives in the Oscar Ranges called Jarrada. Women can’t be anywhere near this area by themselves as he will come and take them away and make them his wife. He can track you in the hill country and you cannot get away. The only way you can escape is to go on sand or some other type of ground and he won’t be able to find you.

Major disturbance to land or waters

14.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.

15.Visitors to our country must ask permission before they come onto our country. There are too many special places and important waterholes on the tenement area that we need to look after. If they don’t come and talk to us before they go there, bad things will happen to them and to us.

16.Mining companies need to come and talk to us before they do exploration on the tenement area. They might scare away all the animals and interfere with the Biya and waterholes and go places where they shouldn’t go. If they come and ask us, we will tell them where they can and can’t go.’

1. The affidavit of Ms Middleton in relation to E04/1608 is in similar terms but with the following variations.

• Para 8 where the words ‘such as bush onions, bush oranges and fruit from the mandarra trees’ are inserted at the end of the third sentence after the words ‘and bush fruit tree here.’

• Para 11 where the words in the second sentence ‘He would come down and fight the gardiya and then retreat into the hills’ are deleted.

• Para 11 where the words ‘I know there is a site down near Quanban Butte from around this time where some of the old people were massacred’ are added.

• Para 12 is in the following terms and the subsequent paragraphs renumbered.

  ‘There is a story about a man who lives in the Oscar Ranges called Jarrada.  Women can’t be anywhere near this area by themselves as he will come and taken them away and make them his wife.  He can track you in the hill country and you cannot get away.  The only way you can escape is to go on sand or some other type of ground and he won’t be able to find you.’

1. The evidence of Mr Brooking and Ms Middleton is uncontested and I accept it. Mr Brooking says that he is one of the senior people for the Bunuba application and Ms Middleton that she is a claimant for the native title claim group. Even though neither are one of the persons comprising the applicant and registered native title claimant, I accept that they are members of the Bunuba claim group and have the necessary authority to speak for country on behalf of Bunuba.

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences 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 interferences) (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, ([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 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas 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. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).

3. The evidence establishes that some exploration activity has occurred in the proposed licence areas and vicinity over the years although there is little evidence to suggest current activity in the mineral resources sector.  Some current petroleum exploration activity is evidenced and the concerns of the native title party about previous activity are apparent from a number of objections lodged in relation to tenements applied for in their claimed country. While it is possible based on the considerable number of titles granted between 1963 and 2005 that some interference with the native title party’s community or social activities may have occurred, there is no specific evidence to support a finding that there has been any appreciable effect on the native title party’s community or social activities from previous exploration/mining activity.

4. Mr Brooking (paras 6-7 affidavit) and Ms Middleton (paras 6-8 affidavit) depose that members of the native title party still enjoy access to the entire area of the proposed licences. The principle issue under s 237(a) is whether the extent of those community or social activities is such that exploration is likely to interfere with them. There is evidence that members of the native title party camp, hunt, fish and gather in the area of the proposed licences, however, it is not specific as to the number of people involved or frequency of the activities. The evidence is significantly less persuasive than that produced 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), Hon C J Sumner (‘Banjo Wurrunmurra – WO04/136 and WO04/137’) (see discussion at [19]-[23]).

5. Mr Brooking’s evidence that he visited the area ‘last month’ does not suggest intensive community or social activities of the native title party in the subject areas.  He provides no specific evidence of who accompanied him or what he did on this occasion. There are also no established communities within or in the near vicinity of either of the subject areas which might help support an inference that the community or social activities are of intensive nature. Mr Brooking deposes to belong to Bungardi Community on Brooking Springs Pastoral Lease which appears to be approximately 30 kilometres from E04/1607 and 35 kilometres from E04/1608. Ms Middleton deposes to belong to Junjawa Community, near the closest major population centre of Fitzroy Crossing some 32 kilometres from E04/1607 and 45 kilometres from E04/1608. The subject areas are not as remote as the area involved in Banjo Wurrunmurra – WO07/1013 (which was over 100 kilometres from Fitzroy Crossing and less accessible) as the Great Northern Highway runs through the subject area in WO07/68 and within 8 kilometres of the subject area in WO07/67. I accept that some Bunuba claimants live at and in the vicinity of Fitzroy Crossing (see Banjo Wurrunmurra - WO04/136 & WO04/137) and that the Great Northern Highway could provide better access to the subject areas than was the case in Banjo Wurrunmurra – WO07/1013.  However, the evidence provided does not support a finding that the native title party’s community or social activities are likely to be directly interfered with by the grant of the proposed licences and the activities carried out pursuant to it.

6. 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. Government party documentation reveals that the subject areas in these proceedings are 2,696.76 hectares (E04/1607) and 4,323.55 hectares (E04/1608) but community and social activities of the Bunuba People occur over the total area of the proposed licences – a significant area of 7,168.98 hectares (E04/1607) and 21,499.80 hectares (E04/1608). Further, the area of the Bunuba claim is approximately 5,771 square kilometres, much larger than the area of the proposed licences thus making it less likely that exploration on the subject areas will impact on community and social activities, which I can infer are likely to be carried out over a broader area (Cheinmore and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmore’) at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])).

7. Often, given the nature and extent 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 directly to interfere with these activities except in an incidental and insubstantial way. This is such a case.

8. 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 my findings in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner 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 is no longer applicable.

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 risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act shows four closed access sites within E04/1607 and one closed and two open access sites within E04/1608, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licences or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.

1. The Government party relies on ss 5, 17 and 18 of the Aboriginal Heritage Act to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particularly significance.  The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal, recently in (see Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (‘Butcher Cherel’) (at [81]-[91])).  The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.

2. The evidence of Mr Brooking and Ms Middleton establishes the following facts which support a finding that the following sites lie within or in the vicinity of the proposed licences:

• Yhinangganyarra – Twelve Mile Yard within E04/1607, incorporating a number of Biya or springs. Biya are found within both proposed licences where ‘old people used to camp’ and ‘you can sometime find old artifacts here.’ (Affidavit of Mr Brooking para 10 and Ms Middleton para 10). Tribunal mapping locates Twelve Mile Yard approximately 5 kilometres north-westerly of the subject area in relation to E04/1607 and 1-2 kilometres from the north-western tip of the proposed licence area;

• A burial site known as Garnibiri, located in a cave at the foot of the Oscar Range on or near the northern edge of E04/1607, ‘[t]he remains of this old person needs to stay in the cave and not be disturbed.’ (Affidavit of Ms Middleton para 12 and Mr Brooking para 11);

• Rock within E04/1608 which is significant to the Bunuba People, although Mr Brooking ‘can’t remember exactly what the story is about this rock but I could show you were (sic) it is.’ (Affidavit of Mr Brooking para 11);

• A massacre site near Quanban Butte ‘where some of the old people were massacred’ within E04/1608 (Affidavit of Ms Middleton para 11 and Mr Brooking para 12). Tribunal mapping shows that although the site Quanban Butte lies within the proposed licence, the site itself does not overlap the Bunuba native title claim and is some five kilometres from the southern boundary of it;

• The presence of old artefacts ‘like old spear and grinding stones’ found at former camp sites where the ‘old people used to stay…when they walked from town to Leopold Station’ (Affidavit of Ms Middleton para 10) north of the proposed licences;

• It is said that throughout the area of the proposed licences, Jandarmarra, a member of the Bunuba tribe who once led armed insurrections against European settlement, ‘used to go all through the tenement area and would retreat and hide in the Oscar Ranges north of the tenement area. He would come down and fight the gardiya [non-Aboriginals] and then retreat into the hills.’ (affidavit of Ms Middleton para 11); and

• Jarrada – story about a man who lives in the Oscar Ranges who threatens women and ‘can track you in the hill country and you cannot get away. The only way you can escape is to go on sand or some other type of ground and he won’t be able to find you.’ (Affidavit of Ms Middleton para 12 (WO07/68) and para 13 (WO07/67)).

1. 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 in the general area of the proposed exploration licences, most of which are, given their nature, of particular significance to the native title party. I am satisfied that at least the burial site Garnibiri, the rock within E04/1008, the Quanban Butte massacre site, the areas associated with Jandarmarrar and the area covered by the Jarrada story, are all areas or sites of particular significance to the native title party.

2. I can also safely infer that most of the sites on the Register fall into this category given their characteristics including that five of the seven of them are closed sites.  Of the two which are open sites I consider that the characteristics of Site ID 13446 – Quanban Butte make it likely to be a site of particular significance (it is a mythological and burial area and place at which a massacre occurred).  However, Site ID 12447 confirms it as a site of particular significance – Wuindjmurru or Rockhole probably does not qualify in the absence of evidence from the native title party explaining why it is a special place to them. The mapping evidence also establishes that there are a considerable number or registered sites to the north-west (in the Oscar Range) and south-east of the proposed licence areas.

3. I also have regard to findings of the Tribunal in Banjo Wurrunmurra – WO04/136 and WO04/137 (at [26]-[35]) where the Tribunal found that an area directly to the east of E04/1607 was an area rich in Aboriginal sites; and Billy Oscar, Lionel Jumbarra and Jonny Bell/Western Australia/Bazco Pty Ltd, NNTT WO98/164, [1998] NNTTA 194 (5 August 1998), Kim Wilson which related to exploration licence E04/1089 which overlapped both the north eastern portion of E04/1608 and the entire section of the Bunuba claim area and where the Tribunal found that there were 15 listed Aboriginal sites. In both of these matters the Tribunal found that the expedited procedure was not attracted.

4. The affidavits of Mr Brooking and Ms Middleton evidence concerns about mining companies entering Bunuba claimed land without permission and consultation with traditional owners. Mr Brooking says that ‘Malngarri [non-Aboriginals] must ask for permission before coming onto my country because we have a lot of very special places on my country…’ and that ‘if malngarri damage a wungurru garawan or living water or a ngarranggarni or dreaming tree, we don’t feel good. We feel very sad, like someone close to us has died.’ (paras 14 and 15 (WO07/67) and paras 15 and 16 (WO07/68)). Mr Brooking deposes that the Bunuba People are frightened of strangers entering the country uninvited because ‘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.’ (para 14 (WO07/67) and para 15 (WO07/68)). The evidence is corroboration of the fact that the areas and sites are of particular significance to the native title party in accordance with their traditions.

5. As noted at para [19] above, the subject area and immediate vicinity has been the subject of a number of objections lodged by the Bunuba claim group, both in its existing format and pre-combination of the current claim.  Each of these objections have been resolved either by way of agreement or determination that the expedited procedure should not apply on the basis that interference with sites of particular significance was likely.

6. Taking into consideration the whole of the evidence I am satisfied that the subject areas and their surrounds are rich in sites.

7. I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in pace, render it unlikely that there will be interference with any 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 Aboriginal Heritage Act 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 Aboriginal Heritage Act 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 Aboriginal Heritage Act 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.

8. The grantee party says it will carry out its work program in compliance ‘with the relevant statues, protocols, codes of practices… conditions of the grant of the Licences and other directions and requirements of Government and other relevant authorities in the exploration of the Licence.’ (SC – para 8) and further contends to have a ‘sound environmental record’ and ‘sound’ working record with Indigenous peoples (SC – paras 14 and 15).

9. The grantee party also indicates the following in its Statement of Contentions:

• Preparedness to enter into a Heritage Protection Agreement with the native title party ‘provided the terms are fair and reasonable’ given ‘The Kimberley Land Council (‘KLC’) has not been prepared to consider amendments to the Heritage Protection Agreement which discriminates against small explorers.’ (para 4);

• Awareness of registered sites within the proposed licences and undertaking to ‘consult with the Objectors and conduct heritage surveys of the area of the Licences as required prior to the commencement of ground disturbing activities’. (para 6); and

• Disturbance to the land ‘will be kept to the bare minimum’ and similarly exploration will result in ‘minimal impact upon the surface of the land and will not interfere with the local communities.’ (paras 16 and 17).

1. Despite the above statements the exploration intentions of the grantee party are not sufficiently clear to determine the type of work that the grantee party intends to conduct over the area of the proposed licences.  In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]). There is no evidence to suggest that the grantee party will not act lawfully and in accordance with the Aboriginal Heritage Act and its Statement of Contentions reveals an awareness of its obligations in this respect.

2. I further observe that the grantee party’s assertion that the majority of exploration ‘does not result in the discovery of a viable resource’. (paras 9 and 11 SC) is of little relevance in the context of this inquiry. The Tribunal must consider only the effect of the proposed future act (i.e. the exploration activity which is likely to be carried out) on the three limbs of s 237, and not enter into speculation over the potential to discover a resource and progress to mining. Further, the grantee party’s contentions that the KLC’s Heritage Protection Agreement discriminates against small explorers is not strictly relevant to the inquiry. The Tribunal is aware from its own experience that some native title parties make changes to their heritage protection agreements to suit the requirements of small explorers. The Tribunal encourages negotiations which might lead to resolution of the objection by consent. However, if no agreement is reached the Tribunal must perform its statutory obligation which is limited to assessing whether the proposed exploration activity is likely to cause the interference or disturbance referred to in s 237 of the Act. The fact that a grantee party was prepared to enter into a heritage agreement is a relevant factor (and has been taken into account in the present matter) as indicating the grantee party’s awareness of the need to avoid interference with sites of particular significance. However, whether an exploration company is small or large, well capitalised or not is not relevant to the Tribunal’s task in determining whether or not the expedited procedure is attracted.

3. Taking all these factors into account, and particularly the nature and extent of the sites of particular significance 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 indicates awareness of registered sites in the proposed licence areas, and 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. In particular the registered sites of Bambururu, Oscar Range Cache, Maarowia and Piiyayi are encompassed within a 10 square kilometre buffer zone which partially overlaps the subject area of E04/1607 but their precise location or extent is unknown. The location of the burial site Garnibiri (within or near E04/1607), the rock within E04/1608 and the areas associated with Jandarmarra and Jarrada are not precisely known and in the latter two cases may extend over a wide area.

4. The evidence in this matter and previous determinations referred to above demonstrate that the area of Fitzroy Crossing itself and areas to the north and east of it and extending to the north-west for over 50 kilometres including areas around Geike Gorge, Brooking Gorge and Oscar Range is an area where there are a considerable number of areas and sites of particular significance to the Bunuba People.  The whole area is site rich (including the areas the subject of these proceedings and those in their near vicinity.

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

1. 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

1. The determination of the Tribunal is that the grant of exploration licences E04/1607 and E04/1608 to Caldera Resources Pty Ltd is not an act attracting the expedited procedure.

Hon C J Sumner
Deputy President
21 November 2008