Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa

[2008] NNTTA 127

NATIONAL NATIVE TITLE TRIBUNAL

Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa, [2008] NNTTA 127 (5 September 2008)

Application No:        WO07/1013

IN THE MATTER of the Native Title Act1993 (Cth)

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

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

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The State of Western Australia (Government party)

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Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa (grantee party)

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

Tribunal:                   Hon C J Sumner, Deputy President

Place:  Perth
Date:  5 September 2008

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 Act1993 (Cth), ss 29, 31(1)(b), 151(2), 237
  Mining Act 1978 (WA), ss 20(5), 63

Aboriginal Heritage Act1972 (WA)

Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner

Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, NNTT WO05/756, [2007] NNTTA 21 (16 March 2007), The Hon CJ Sumner

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

Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner

Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340

Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso

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 Rod Wahl, State Solicitor’s Office
Government party:         Mr Greg Abbott, Department of Industry and Resources

Representative of the
grantee party:                 Mr Kevin Sibraa

REASONS FOR DETERMINATION

1. On 6 June 2007, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1600 (‘the proposed licence’) to Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.

2. The proposed licence comprises an area of 176.64 square kilometres located 113 kilometres northerly of Fitzroy Crossing in the Shire of Derby-West Kimberly. It is 5.6 per cent overlapped by the Bunuba registered native title claim (WC99/19 – registered from 20 August 1999). No other native title claims overlap the proposed licence.

3. On 3 October 2007, Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants (‘the native title party’) made an expedited procedure objection application to the Tribunal.

4. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the 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.

5. At an adjourned status conference on 2 April 2008, following a number of conferences and two requests to extend direction compliance dates in an attempt to negotiate a heritage protection agreement, the grantee party and the native title party representatives reported that an impasse had been reached regarding the proposed heritage survey budget and the use of an anthropologist to conduct a survey. The parties agreed that the matter should proceed to an inquiry and an additional request to amend directions was made. Three subsequent requests were agreed to allow the native title party sufficient time to gather evidence.

6. The Government party lodged its contentions and evidence on 1 and 2 May 2008, the grantee party on 20 May 2008 and the native party on 30 June 2008.

7. At a listing hearing on 10 July 2008, 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 objection can be adequately determined on the papers (s 151(2) NTA).  On 31 July 2008 a map prepared by the Tribunal’s Geospatial Unit was provided to the parties and is also evidence in this matter.  On 12 August 2008 the Tribunal sought further information from the parties in relation to Aboriginal site surveys which the grantee party asserted had been carried out over the proposed licence area.  Only the Government and native title parties responded (on 18 August 2008).

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 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–[38], [40]-[41].  In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).

Preliminary issue

1. Mapping provided by the Tribunal’s geospatial unit and Government party establishes the 5.6 per cent overlap of the proposed licence with the native title party’s claim area to be comprised of two separate portions, located at the south eastern end of the proposed licence area.

2. Much of the evidence provided by the parties (see for instance the affidavits of Kevin Dann and Paddy Neowarra) relates to the whole of the proposed licence area while the Bunuba registered claim is only over 5.6 per cent of it (i.e. 992.52 hectares of a total area of 17,664.69 hectares according to the Government party’s documentation).  This raises the question of the status of the evidence not specifically concerned with the area of the proposed licence area which is also overlapped by the Bunuba claim.  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 the Tribunal considered a similar situation and held (paras [60]-[74]) 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.

1. These findings when applied to the present case mean that while the evidence which relates to the whole of the proposed licence area 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 the proposed licence (‘the subject area’).

Evidence in relation to the proposed act

1. The underlying land tenure is Leopold Downs indigenous owned pastoral lease 3114/750 (1.6 per cent of the proposed licence area) and Fairfield indigenous owned pastoral lease 3114/748 (4 per cent) both vested in the Bunuba Aboriginal Corporation.  The remainder of the licence is predominately Conservation Park Reserve 46235 vested in the National Parks and Nature Conservation Authority (73.5 per cent overlap), Napier Downs pastoral lease 3114/682 (15.3 per cent overlap) and vacant crown land parcels (totalling 5 per cent overlap).

2. There are no Aboriginal communities within the proposed licence area however Tribunal mapping shows Immintji Aboriginal community located approximately 12 kilometres to the north east of the portions of the proposed licence that are overlapped by the native title party’s claim area (the subject area).

3. Government party documentation shows there is no current exploration or mining activity in the area of the proposed licence however some previous exploration activity has occurred:

• one exploration licence (E04/718 to Pancontinental) granted in 1991 and surrendered in 1997 overlapping at 5.6 per cent of the total proposed licence area but only over one of the portions of the subject area;

• two exploration licences (E04/1042 and E04/1043 to RGC) granted in 1996 and surrendered in 1997 overlapping respectively at 69.3 and 27.7 per cent of the total proposed licence area.   E04/1043 includes most of both portions of the subject area;

• two exploration licences held for no more than a year and surrendered in 2005 overlapping at 1.9 per cent each of the proposed licence area; and

• some other exploration over the proposed licence area, some including the subject area dating back to the 1960s.

1. One pending exploration licence E04/1599, applied for by the grantee party, overlaps the proposed licence area at 3.7 per cent but does not overlap the subject area.  EO4/1599 also covers a larger portion of the Bunuba claim than the proposed licence and was the subject of objection application WO06/616 lodged by the native title party on 17 November 2006.  In that matter the parties reached the same impasse as occurred in the present proceedings (see para [5] above) and directions were amended to proceed to an inquiry.  On 13 June 2008, prior to complying with the amended directions, the native title party withdrew its objection application WO06/616. The withdrawal advice from the native title party representative was as follows:

   ‘In relation to E04/1599, due to the remoteness of the area and our lack of resources and time to conduct a field trip, it was difficult to obtain evidence in support of our contentions. I would therefore like to withdraw our objection in relation to E04/1599. However I am still hopeful of negotiating an agreement with the grantee in relation to other tenements that are in the RTN process and arranging heritage clearances to occur under the terms of this agreement.’

2. In the matter of 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), The Hon CJ Sumner (‘WO05/756’) the Tribunal determined that the expedited procedure was not attracted in relation to adjoining exploration licences E04/1503 and E04/1504, applied for by the grantee party, located approximately 5 and 8 kilometres respectively southeast of the eastern most portion of the subject area. This determination was made on the basis that it was likely that exploration would interfere with an area of particular significance to the native title party. The Tribunal has no record of a s 31(1)(b) agreement (‘State Deed’) having been lodged with the Tribunal relating to these matters.

3. I have recited the above facts in relation to other exploration licences sought by the grantee party as they are in the vicinity of the proposed licence area and may be relevant to the present proceedings in the following way:

• the level of prior exploration activity is not of such intensity as to make it likely to have interfered with the native title party’s community or social activities;

• exploration licences E04/1503 and E04/1504 (WO05/756) are not a great distance from the area of particular significance identified by the native title party in these proceedings; and

• the reasons for withdrawal of the objection relating to an adjacent exploration licence application was for reasons of lack of resources to collect evidence and not because agreement had been reached with the grantee party.

These issues are dealt with further below.

1. These facts must be viewed bearing in mind that a determination in the current proceedings must be made on the basis of the facts and law relevant to them.  No automatic inference that the expedited procedure is or is not attracted can be drawn from either the determination that the expedited procedure was not attracted in one matter or that an expedited procedure objection was withdrawn in another.

2. The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4).  Additional conditions imposed relate to:

• providing notification to the pastoral lessee, of the grant of the licence and of certain exploration activities (conditions 5–6);

• seeking permission from the Minister responsible for the Mining Act 1978 prior to mining on Road Reserve 10773 (condition 7);

• no interference with Geodetic Survey Station H 72 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 8);

• consent to mine on Stock Route Reserve 17206 granted subject to no mining operations being carried out on the Reserve which restrict the use of the Reserve (condition 9);

• consent to mine on Conservation Park Reserve 46235 granted subject to Department of Environment and Conservation restrictions and approval requirements including cleaning of vehicles, machinery and equipment, access and movement of vehicles and personnel, written notification and approval of proposed activities, rehabilitation, inspections, pollutants, camps, work bases, fuelling depots, domestic animals, traps or firearms (conditions 10-20)

1. 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, the Conservation and Land Management Act 1984 (WA) and any regulations thereunder, the Bush Fires Act 1954 (WA) and any regulations thereunder and the Wildlife Conservation Act 1950 (WA) and any regulations thereunder (excepting 46 a, b, c, d, g, i, l and o insofar as non-compliance occurs as an unavoidable incident or reasonable consequence in the performance of the approved exploration program)

1. Searches of the DIA Register of Aboriginal Heritage Sites provided by the Government party reveal no registered Aboriginal sites under the Aboriginal Heritage Act1972 (WA) located within the area of the proposed licence.

2. Two of the persons comprising the grantee party (Messrs Sibraa and Ling) provided a Statement of Contentions by email which included a topographical map showing bulldozed tracks over or in the vicinity of the proposed licence area, a copy of its proposed works programme and some other information considered in more detail below.

3. The proposed works programme details the grantee party’s intentions to conduct the exploration in three stages.  Stage 1 is described as having “minimal ground disturbance”, being to establish vehicle access on existing tracks or to use motorcycles or helicopters if that is not possible, in order to undertake sample collection, rock chipping, mapping and metal detecting over a twelve month period.  Stream sediment samples and soil samples on existing alluvial workings of 5 kilogram lots will be taken for assay.  Geological mapping will be carried out on any mineralised areas and over areas previously sampled by Pancontinental and Western Mining.

1. Stage 2 is also described as having “minimal ground disturbance”, including more detailed rock chipping, soil sampling and mapping over targeted areas to outline the extent of mineralisation.

2. At stage 3 “mechanised equipment will need to be used to dig costeans and drilling rigs will also be required.  At this stage … Heritage Surveys will be required before any mechanised equipment or major ground disturbances are undertaken.  Consultation with the Bunuba People or the KLC will also need to be addressed before going into this stage.”  The proposed works programme contains the following summary.

   ‘In the first two stages of this program, the ground disturbance is minimal and if any Aboriginal Sites are located by visual means, then the Bunuba People and the KLC will be notified immediately and no ground disturbance will be made on these areas until they have been assessed.

   All of our Work Programmes will be carried out in compliance of the West Australian Mining Act and the rights of the Native Title Claimants.’

3. The native title party’s submissions include the affidavits of Kevin Dann and Paddy Neowarra dated 25 June 2008  made in the following terms:

   ‘AFFIDAVIT OF KEVIN DANN

   I, Kevin Dann of 4 Barnett Way, Derby, CDEP worker, solemnly and sincerely declare and affirm THAT:

   1.   My name is Kevin Dann. I was born in Derby on 26 March 1960 and went to school and grew up in Derby.

   2.   I am a native title holder for the Wanjina Wunggurr Willinggin Native Title Determination (WC99/l 1) and a native title claimant in the Bunuba Native Title Claim (WC99/19).

   3.   My mother is Bunuba and my father is Ngarinyin. My father spoke for Unggumi country through his stepfather which includes the tenement area. My father’s stepfather was the last Unggumi person.

   4.   I know the country which includes the exploration tenement. The old people took me out and told me about this country. They taught me about this country and showed me significant places.

   5.   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

   6.   The exploration area is a shared area between Ngarinyin and Unggumi. As there are no Unggumi people left, I now speak for this area.

   7.   We go to the exploration area regularly to hunt and camp. In the exploration area we hunt Goannas (Gnarla), Kangaroo (Yalli), Crocodile (Kuya Kuya), turkeys (Alanbanit). In the wet we go fishing there and get Black Bream (Amana) and catfish.

   8.   You can also get other bush tucker and bush medicine from this area. You can get all kinds of bush medicine from the trees, the leaves, the grass and the bark. We sometimes get the sap from the tree (Kayunjun) and chew it.

   9.   We still go there to make spears and show the young people how to make spears and tools. You can get a special kind of rock there, called Kimboo, which is very hard and good to make spears and tools with.

   Interference with sites of particular significance

   10.    The area of the exploration tenement is a very significant place. It is called Wungamil Land. This area is mixed country where the old people used to meet and make spears and tools. We used the rocks to make the spearheads and bamboo to make the spear. There is the memory of old people in some of those spears. We need to leave the old spearheads where they are.

   11.    We also take young people to this area to make spears and teach them about this area. I took my son Lane there earlier this year to show him the exploration area. It is difficult because the old people are all getting old and can’t get to this place any more. We need to teach the young people about this area so we can keep the stories and our culture alive.

   12.    There is other mixed country around Mt Broome where we also used to meet and conduct ceremonies. All of this mixed country is very important.

   13.    Wungamil land is a special area that only traditional owners can go to. You need permission to get there. There are places that people cannot go to because they are too important. That is why they need to come and talk to us before they go there. If someone went there without talking to the right people it could stir up big trouble.

   Major disturbance to land or waters

   14.    I think it is important that the mining company takes us out and shows us where they want to go. It is difficult for the old people to look at a map and to know exactly where they want to go. If we go on a clearance we can tell them where they can go.

   15.    If they don’t come and talk to us I am worried that they will disturb this area and that bad things may happen.’

‘AFFIDAVIT OF PADDY NEOWARRA

I, Paddy Neowarra of Pensioner Quarters, Mowanjum, solemnly and sincerely declare and affirm THAT:

1.   My name is Paddy Neowarra. I was born around 1930 out in the bush near Pantijan Station.

2.   I am a named applicant for the Wanjina Wunggurr Willinggin Native Title Determination (WC99/11) and the chairperson of the Willinggin Aboriginal corporation.

3.   My parents are both Ngarinyin. They told me that. My mother was Judy Muru from Brrewanggundu country and my father was Taylor Manunggu from Galarungarri Country.

4.   My father’s country is up between the Moran River and the Mitchell River and my mother’s country is in the middle between the Roe River and the Moran River.

5.   My Wunggurr is Nyawarra, the black stone at the bottom of Galarungarri country That’s where my name comes from. I can’t go to that place as it is dangerous for me and everyone.

6.   We stayed at Pantijan for a while and then moved North West of the Moran River around Prap Prap and Mitchell Station. This is where I grew up.

7.   I know the country that includes the exploration tenement very well.

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

Interference with community and social life

9.   The exploration area is a shared area between Ngarinyin and Unggumi. Kevin Dann speaks for this area.

10.    Kevin Dann and Robin go to the exploration area all the time to hunt and camp. We go hunting there too and hunt Goannas (Gnarla) Kangaroo (Yalli), Crocodile (Kuya Kuya), turkeys (Alanbanit). In the wet we go fishing there and get Black Bream (Amana) and catfish.

11.    I went out there two years ago and stayed on a block out there with family and other people from town. We went hunting and showed some of the young people how to make spears and tools. I know that people have been up there this year.

Interference with sites of particular significance

12.    The area of the exploration tenement is a very significant place. This area is where the old people used to make spears and tools, all along the river there and is called Wungamil land. If you have a look around there you would find spear heads and other tools. This is a shared area between Ngarinyin and Unggumi.

13.    Wungamil land is a special area that only traditional owners can go to. If someone went there without talking to the right people they might get sick, bad things would happen and this would be bad for them and for us. For example people might have a helicopter accident. It is dangerous if people don’t know about country.

14.    We take young people to Wungamil to make spears and teach them about this area. There are probably burial grounds there although I would need to go on the land and look to see where they are.

Major disturbance to land or waters

15.    It is important that people come and talk to us before they go to the exploration area. I am worried that bad things will happen if they don’t. There are old spear heads and other tools throughout this country and they need to stay there.

16.    The mining company needs to go on a clearance and tell us where they want to go. We will tell them where they can and can’t go. It is important that they do this on this country.’

1. The evidence of Mr Dann and Mr Neowarra is uncontested by the parties and I accept it.  I take Mr Dann’s assertion that he is a native title claimant to mean that he is a member of the native title claim group even though he is not one of the persons comprising the applicant and registered native title claimant.  In the absence of any evidence to the contrary I accept that as a member of the claim group he has the necessary authority to speak for country on behalf of Bunuba.  However, much of Mr Dann’s evidence is not directly relevant because it relates to areas of the proposed licence which are not covered by the Bunuba claim.  He also says (para 6) that the exploration area ‘is a shared area between Ngarinyin and Unggumi’.  This statement is consistent with the fact that the Bunuba claim does not cover most of the proposed licence area.  For the reasons already given I have relied on Mr Dann’s evidence insofar as it can be related to the subject area.

2. The evidence of Mr Neowarra is in a different category.  He is a native title holder for the Wanjina/Wunggurr-Willingin Native Title Determination Area 1, located approximately 10-15 kilometres to the north of the subject area.  Mr Neowarra’s authority to speak for the subject area is more problematic.  The area of his country described in  his affidavit (paras 3-6) is well to the north of the proposed licence area.  Mitchell River, Moran River and Pantijan are respectively over 196 kilometres, 170 kilometres and 90 kilometres approximately to the north of the proposed licence area.  His evidence also confirms that the proposed licence area is shared between Ngarinyin and Unggumi (para 9).  He makes no specific reference to Bunuba country and is not a member of the Bunuba claim group.  However, this does not make Mr Neowarra’s evidence irrelevant even if less weight should be given to it compared to the evidence of Mr Dann.

3. Applying the principles enunciated by the Tribunal on the question of authority to speak for a native title claim group (see for example Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso at [16]-[21]) I can accept that there is no impediment to receiving Mr Neowarra’s evidence of the native title party’s community or social activities as these are something in which he participates (affidavit para 10). However, it is important to note that the inquiry is not about whether the Wanjina/Wunggurr-Wilinggin people’s community or social activities are interfered with unless they are also Bunuba (as is Mr Dann). The Wanjina/Wunggurr-Willinggin and Ngarinyin people are not native title parties in these proceedings. With respect to Mr Neowarra’s evidence on sites of particular significance, I cannot assume that he has any special knowledge or authority to speak for the subject area as he provides no evidence of this and on the face of it is talking about country over which he neither holds native title nor is a member of the relevant native title party group. However, despite these limitations, Mr Neowarra’s evidence on areas or sites of significance can be accepted and given some weight as corroborative of that given by Mr Dann. Both attest to Mr Dann’s authority to speak for the area of the proposed licence (including the subject area), and refer to it as a “shared area” or “mixed country” enjoyed by members of the native title party claim group and other Aboriginal people. I can accept that Mr Neowarra is a senior person in the Wanjina/Wunggurr-Willinggin native title holding group and can safely infer that he would have some knowledge of important places on the proposed licence area and the subject area which is not a great distance from the Wanjina/Wunggurr-Willinggin determination area.

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450, ([23])). Direct interference involves an evaluative judgement 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 Act1978 (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 parties 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]).

1. The evidence establishes that some exploration activity has occurred in various parts of the whole licence area over the years.  However the nature and extent of this activity, which is not of a large scale, does not suggest that it will have interfered with the native title party’s community or social activities to an appreciable extent.

2. The evidence of Mr Dann (paras 7-9 and 11), and Mr Neowarra (paras 10, 11 and 14) establishes that members of the native title party, including Mr Dann and his son (as well as members of other Aboriginal groups), still enjoy access to the whole of the proposed licence area.

3. For the reasons already stated the Tribunal is not concerned with the whole of the proposed licence area.  Although the evidence of Messrs Dann and Neowarra does not specifically relate to the subject area, in the absence of evidence to the contrary, I accept that at least some of the activities deposed to occur on it.

4. The principal 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. In this case the evidence is that the native title party hunt, camp, fish, gather and teach young people aspects of traditional knowledge in the whole of the area of the proposed licence. There is some reference to the frequency of the visits and the persons involved (Affidavit of Mr Dann at para 11, Affidavit of Mr Neowarra at paras 10-11), however there are no established communities within the area of the proposed licence nor reference to members of the native title party living at the neighbouring Immintji Aboriginal community, which might help support an inference that the community or social activities are of an intensive nature. The nearest major population centre is Fitzroy Crossing some 113 kilometres from the proposed licence area which is just near the southern edge of the Bunuba claim area. I accept that some Bunuba claimants live at and in the vicinity of Fitzroy Crossing (see Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (‘Banjo Wurrunmurra’) but the distance from and the inaccessibility of the area of the proposed licence means that the level of community or social activities was not the same as found to exist in that matter.  Other major population centres such as Derby and Broome (where Mr Dann lives) are a considerable distance from the subject area.

5. The Tribunal must also have regard to the fact that the grantee party’s access to the area would be limited to the area in which exploration is taking place and temporary (significant ground disturbing exploration will only occur at any one time over a small area).  From Government party documentation, the subject area in these proceedings is 997.26 hectares but community and social activities of the Bunuba People (and others) occur over the total area of the proposed licence – a significant area of 17,664.69 hectares.  Further, the area of the Bunuba claim is approximately 5,771 square kilometres, much larger than the proposed licence area thus making it less likely that exploration on the subject area will impact on community and social activities, which I can infer are likely to be carried out over a broader area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) 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])).

6. 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.  My finding, based upon the evidence provided, is that given the nature and extent of the community and social activities they are not likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.

7. With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at p 223) 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 interferance 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.  There are no sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the immediate 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 areas or sites in particular matters.  The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.

2. The evidence of Mr Dann and Mr Neowarra establishes the following facts which support a finding in relation to the total area of the proposed licence that it is an area of particular significance in accordance with the native title party’s traditions and containing restricted sites, also of particular significance to the native title party.

• The area of the proposed licence is called Wungamil land “a special area that only traditional owners can go to. You need permission to get there” (Affidavit of Mr Dann para 13 and Mr Neowarra para 13)

• Within Wungamil land there are “places that people cannot go to because they are too important…. If someone went there without talking to the right people it could stir up big trouble.” (Affidavit of Mr Dann para 13 and Mr Neowarra para 13)

• The area of the proposed licence contains spearheads made by old people, some in particular located “all along the river there” containing “the memory of old people in some of those spears. We need to leave the old spearheads where they are” and “they need to stay there” (Affidavit of Mr Dann para 10 and Mr Neowarra paras 12 and 15).

1. This evidence relates to the whole of the proposed licence area but I am required to consider whether there is an area or site of particular significance to the native title party (i.e. Bunuba) within the subject area.  Although the evidence is somewhat general and not entirely satisfactory I have on balance decided that the subject area is encompassed by the evidence of Mr Dann and Mr Neowarra.  In making this finding I have taken into account that the evidence refers to ‘the area of the exploration tenement’ (i.e. is not limited geographically in any way) and that this is not disputed by the other parties.  Second, the fact that there is a specific Aboriginal name for the area tends to emphasise its importance.  Third, although the Lennard River proper runs through the proposed licence area well to the west of the subject area, Broome Creek which is a well identified tributary of the Lennard River runs through the lower part of the subject area and it is, therefore, reasonable to infer that the reference to the old people making spears and tools also relates to the subject area.  Fourth, although the evidence of Mr Dann and Mr Neowarra describe the total proposed licence area as Ngarinyin and Unggumi shared country, Mr Dann is a member of the Bunuba claim group, the subject area is covered by the registered Bunuba claim and there is reference to ‘mixed country’ around Mt Broome (the summit of which is approximately 10 kilometres to the east of the eastern extremities of the subject area).  Although the proposed licence area is said to be a shared area between Ngarinyin and Unggumi there are no Unggumi people and Mr Dann who is also of Bunuba descent speaks for the whole area.  Fifth, Broome Creek also partially runs through E04/1503 and at its closest point is approximately 5 kilometres from the summit of Mt Broome.  In WO05/756 the Tribunal found that the area around Mt Broome including at least part of E04/1503 was an area of particular significance to the Bunuba people.

2. 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 place, render it unlikely that there will be interference with any areas or sites of particular significance.  The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal, recently in 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 for example Banjo Wurrunmurra at [26]–[35].)

3. It follows from the predictive assessment approach which must be followed to determine what is likely to happen that the intentions of the grantee are relevant (Maitland Parker at [41] and cases cited therein).  In 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) (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.

4. The grantee party says it will carry out its work program in compliance with the Mining Act and the rights of the native title party.  There is no evidence to suggest that the grantee party will not act lawfully and in accordance with the Aboriginal Heritage Act.  

5. The grantee party makes the following points (Statement of Contentions – 20 May 2008):

• No sites of significance are documented on the proposed licence area and that past surveys have been conducted by the native title party with previous explorers ‘over the entire tenement area’ have not led to registration of any sites.

• The last known site survey was done on behalf of RGC Exploration in 1997 but they have been unable to obtain copies.  The native title party has advised the grantee party that copies if they had them would be confidential.

• In 1997 RGC had vehicular access to the area for work including reconnaissance rock sampling, orientation stream sediment sampling, first pass drainage sampling, re-sampling of some areas soil sampling over an area near Mt Broome and upgrading existing tracks.  A full account of ‘work done by RGC Exploration at Richenda’ was in Report M7627 (Warland 1996).

• The cost of another survey could exceed $50,000 and is unreasonable and unnecessary as its work programme is very similar to work already conducted in the same area since the introduction of the Native Title Act.

• Extensive exploration of the area was done by Western Mining in 1973 and by Pancontinental Mining in 1995 and 1996.

• In relation to the subject area there is a bulldozed track running from near the junction of Broome Creek and Lennard River through E04/1599 and past pending E04/1503 and E04/1504.  The topographical map tendered by the grantee party shows this track to be a short distance to the south of the boundary of the subject area and there is no evidence of existing tracks in either portion of it.  The grantee party refers to other roads which could enable access to parts of the proposed licence area as a whole but this evidence is not relevant to the subject area.

1. In the light of these contentions and the potential significance of site surveys which may previously have been conducted the Tribunal requested information from the parties about any previous site surveys and the areas previously explored.  The Government party responded in a way which establishes that the Pancontinental exploration covered one of the portions of the subject area and the RGC exploration was over most of both portions of the subject area.  There was also some exploration over the subject area by CRA in 1981-1985 and 1988-1989.  However, the Government party information notes (contrary to the contentions of the grantee party) that the Warland 1996 report relates to an area well south of the proposed licence area.  The previous exploration activity consisted mainly of mapping and stream sediment sampling.

2. The native title party responded to the Government party’s evidence by pointing out that it referred to geological survey reports not heritage survey reports.  With respect to heritage surveys the native title party said it was concerned about the methodology of previous surveys and the survey results.  No evidence was provided about any previous surveys.  The grantee party did not respond to the Tribunal’s invitation to provide further information.

3. In summary the evidence establishes that:

• previous exploration of a low level kind was carried out over the subject area; and:

• site/Aboriginal heritage surveys may have been carried out on the subject area but there is no evidence of the nature of these surveys or the results of them.  The Tribunal is aware that different methodologies are used for site surveys which may not specifically identify the location of sites.

1. I now turn to the grantee party’s intention.  It is apparent from the grantee party’s proposed works programme that exploration may eventually (Stage 3) comprise of ground disturbing activities using drilling rigs and costeans.  I can also infer given the apparent lack of existing tracks in the subject area that some tracks may also need to be made to facilitate the use of heavy equipment.  The grantee party says that when this stage is reached permission will be required from DoIR, the Bunuba people will need to be consulted and Aboriginal heritage surveys carried out.  On the basis of these commitments it may have been open to the Tribunal to have found that interference with the area or sites of particular significance was unlikely from Stage 3 exploration.  However, no such commitments are made with respect to Stage 1 or 2 exploration.  The grantee party relies on the fact that the subject area has been previously explored and the subject of site surveys.  These factors do not lead necessarily to a finding that there is unlikely to be interference with special areas or sites from the current proposed exploration.  Although less intrusive than Stage 3, there is no doubt that some ground disturbing activity will take place under Stage 1 and 2.  Rock chipping and stream sampling could constitute interference with an area or site of particular significance.  Stream sediment samples in 5 kilo lots have the capacity to interfere with the spearhead sites located along Broome Creek.  Although the use of motor cycles and helicopters will not cause the sort of disturbance to the ground as Stage 3 exploration, there is still the capacity for interference with an area or site to be caused by them.

2. The grantee party has not committed itself to a site survey for Stage 1 and 2 exploration and the tenor of its contention is that one is not necessary.  During these stages it says that if any Aboriginal sites are located by visual means, then the native title party and the KLC would be notified and no ground disturbance carried out until they had been assessed.  It is not clear to the Tribunal how any of the persons comprising the grantee party have the necessary knowledge or expertise to assess whether a particular part of the country is of special significance to the native title party.  The Tribunal is aware from its own experience that topographical or other features of the land can be very important culturally to Aboriginal people when to the European eye they may be no significance or not even be noticed.

1. In the light, particularly of the grantee party’s intentions relating to Stage 1 and Stage 2 exploration, I am of the view that this is the type of case where the normal negotiations mandated by the Act should take place to avoid the likelihood of interference with the identified area and sites of particular significance.

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 licence E04/1600 to Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa is not an act attracting the expedited procedure.

Hon C J Sumner

Deputy President

5 September 2008