Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa
[2007] NNTTA 21
•16 March 2007
NATIONAL NATIVE TITLE TRIBUNAL
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western
Australia/Monte Ling, Kevin Peter Sibraa, [2007] NNTTA 21 (16 March 2007)
Application No: WO2005/0756
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
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)
- and –
The State of Western Australia (Government party)
- and –
Monte Ling, Kevin Peter Sibraa (grantee party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE
EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 16 March 2007 (Corrigendum dated 13 July 2015)
CORRIGENDUM
Correction to the Future Act Determination made on 16 March 2007 at page 11 on the basis that there is a typographical error – ‘west’ should read ‘east’. Paragraph [27], Line 1 is corrected to read ‘These two sites adjoin each other and are some 10 kilometres to the south east of E04/1504’.
Ms Helen Shurven
Member
13 July 2015
NATIONAL NATIVE TITLE TRIBUNAL
Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, [2007] NNTTA 21 (16 March 2007)
Application No: WO05/756
IN THE MATTER of the Native Title Act 1993 (Cth)
- and –
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)
- and -
The State of Western Australia (Government party)
- and -
Monte Ling, Kevin Peter Sibraa (grantee party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 16 March 2007
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection application – whether acts are likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – whether acts are likely to cause major disturbance to land or waters – expedited procedure not attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 150, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18, 62
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
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
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
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon. C.J. Sumner
Hearing date: 16 February 2007
Counsel for the
native title party: Mr Brendan Renkin, 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
On 13 July 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E04/1503 and E04/1504 (‘the proposed licences’) to Monte Ling and Kevin Peter Sibraa (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure.
The area and location of the proposed licences which adjoin each other are as follows:
· E04/1503 – comprises an area of 13.07 square kilometres and is located 96 kilometres northerly of Fitzroy Crossing in the Shire of Derby-West Kimberley. 100 per cent of the proposed licence is overlapped by the Bunuba native title claim (WC99/19 – registered 20 August 1999);
· E04/1504 – comprises an area of 13.07 square kilometres and is located 94 kilometres northerly of Fitzroy Crossing in the Shire of Derby-West Kimberley. 80.54 per cent of the proposed licence is overlapped by the Bunuba native title claim.
On 14 November 2005, Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants (‘the native title party’) made an expedited procedure objection application to the Tribunal.
In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to 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. Although the parties were engaged in mediation pursuant to s 150 of the Act, the grantee party reported on 29 August 2006 that the terms of the native title party’s Heritage Protection Agreement were not acceptable and requested that the matter proceed to inquiry. Further attempts to settle the matter also failed. With the consent of all parties the directions were amended to enable the native title party additional time to comply.
The Government party lodged its contentions and evidence on 3 May 2006, the grantee party on 8 September 2006 and the native party on 14 February 2007 followed by its evidence in the form of an affidavit on 16 February 2007.
On 16 February 2007, a Listing Hearing was conducted at which parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’, that is, without holding a hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal 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 Standard Conditions (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources. 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].
Evidence in relation to the proposed acts
Government party documentation establishes the underlying land tenure of E04/1503 to be entirely pastoral lease 3114/750, vested in the Bunuba Aboriginal Corporation. Proposed licence E04/1504 is also overlapped by this pastoral lease (80.5 per cent) as well as Reserve 46235 vested in the National Parks and Nature Conservation Authority for a Conservation Park (19.5 per cent).
There are no Aboriginal communities within the vicinity of the proposed licences.
As of 10 February 2006, six ‘dead’ tenements for exploration are recorded within the proposed licences, overlapping between 4.2 per cent and 100 per cent. Three tenements were surrendered between 1997 and 2003, two withdrawn prior to grant and one forfeited in 1973.
The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions imposed relate to:
providing notification to the pastoral lessee, of the grant of the licences and of certain exploration activities (conditions 5–6); and
seeking permission from the Minister for State Development prior to mining on Reserve 24705 (condition 7) (E04/1504 only).
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.
Searches of the DIA Register of Aboriginal Heritage Sites provided by the Government party reveal no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) located within the area of the proposed licences.
The grantee party (Messrs Sibraa and Ling) provided an unsworn statement giving details of considerable historical mining activity dating back to 1898; a bulldozed track which runs through and passed the areas of the proposed licences. They contend that ground has already been disturbed by this activity and that low impact exploration will not result in further disturbance. They also say that from early June to late August 2006 no human activity was observed.
The native title party’s contentions include the affidavit of Johnny Marr dated 15 February 2007 made in the following terms:
I, Johnny Marr, of Forrest Street, Broome, in the State of Western Australia, affirm:
1. My name is Johnny Marr. My Aboriginal name is Irrmali. I have jawangari skin, or subsection identity. I was born in the 1930’s at Yarranggi (Old Leopold downs). My gilagi (grandfather, fathers’ father) passed down his knowledge of Bunuba law and culture to me.
2. I am Bunuba senior law person and named applicant for the Bunuba Combined Native Title Determination Application (WAG 6133/98). Under our Law I have the authority to speak about Bunuba land matters.
3. I know the area where the Grantee Party has applied for Exploration Licences Number E04/1503 and E04/1504, “the Exploration Licence Area”, very well, because I have been shown maps of the application area and I have been to this area many times before. We call that area Galamanda. The maps I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4. The Exploration Licence Area falls completely within Bunuba country. Bunuba country is the country where Bunuba language was put by ngarranggarni, in the Dreamtime.
5. We take the young people out on country as often as we can, usually in the school holidays to fish and hunt in many parts of the Exploration Licence Area. We hunt wiriyirri or rock wallabies, along the creeks inside the Exploration Licence Area.
6. We fish for balga or Barramundi, mulurru or catfish and jambinbaru or black bream in billabongs and creeks in the Exploration Licence Area.
7. We hunt for baaniyi or goanna, minaji or porcupine and wirrayi or hill kangaroo. This is good milha or bush meat. We find wawanyi all over country, especially inside the Exploration Licence Area. We collect different types of mayi, or bush vegetable foods, on my country, including in the Exploration Licence Area. For example, there is fruit from the mandarra tree, which grows along any little creek or any walibirri or creeks. During Barrangga, or the hot season before the Wet Season, we collect gum from the trunks of mandarra trees for chewing.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFANCE
8. My country, or muay, and the Law we follow come from the Dreamtime, from the ngarranggarni. I know the Exploration Licence Area very well. There are many places in my country, including inside the Exploration Licence Area, which are very important and have great significance in the traditional religion of my community.
9. Us old people are looking after Jawiy and all other 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’. If mining mob want to come onto our country, we want to talk with them and make an agreement, just like under our Law.
10. We used to have Law ceremonies or Wangga including junba or ceremonial dances, on Galamanda county, which is within the Exploration Area, in the Station days. There are several ceremony grounds there. These are very important places. When I was a young man, people brought winauru, or young male initiates, from Lanmaloowa or Fossil Downs Homestead, and from Yarranggi or Leopold Downs Homestead, and from Ganimbirri or Old Mount Oscar Homestead to Galamanda for Law business. Today, we hold our annual Wangga or Law ceremonies nearby, at Darlnganaya to the south on Bandaralngarri or a segment of the Fitzroy River, but those old Law camps at Galamanda are still very important to me and my community. We usually swap the locations of our Law business, every Bulurru or Wet Season.
11. They are not marked for malngarri or white people, but we all know where they are. Mining people must not damage these places. Under our law people need to ask us to go to these places. We worry for our country and have very important places that we need to look after so they don’t get destroyed. Mining people can’t touch these places as they might get sick.
12. Inside the Exploration Licence Area, is another place called Gunbi. This is an important ngarranggarni place in my country. It includes all the area around and including Mt Broome. There is an important ngarranggarni story for that place about “an old woman who is looking for her husband but he has drowned, she is poking holes all around that area with her stick and makes that gorge”. We must watch this area carefully because it’s a dangerous place and has significant meaning to our people. Even walking in this place in dangerous and is against our law. Going there without permission will make the old woman angry and any digging will destroy this place.
MAJOR DISTURBANCE TO LAND OR WATER
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. If malngarri damage a wungurru garawa or living water or a ngarranggarni or Dreaming tree, we feel no good. We feel very sad, like someone close to us has died. It’s like the same thing for our country. We feel gandayi-yarda yarranggu muay. That means: ‘we feel sad for our country’.
15. If people damage ngarranggarni or Dreamings in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again.
16. Malngarri cannot just go out on our country. They have got to ask us first. If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our ngarranggarni or Dreamings.
The evidence of Mr Marr is uncontested and I accept it. I accept that Mr Marr is one of the persons named as part of the Bunuba native title party and is a senior law person. I accept he has authority to speak on behalf of the Bunuba native title party.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken pursuant to it are likely to (in the sense of there being a real risk) interfere with the community or social activities of the native title party (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])).
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 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]).
The evidence established that considerable mining and exploration activity has occurred in the 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. The uncontested evidence of Mr Marr establishes (paras 5-7 of affidavit) that the native title party still enjoys access to the area. 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 of Mr Marr establishes that the native title party hunt, fish and gather in the area of the proposed licences. However the information on the frequency of these visits or numbers of persons involved in these activities is limited. There are no established communities within or near the proposed licence areas which might help support an inference that the community or social activities are of a frequent or intensive nature. The nearest major population centre is Fitzroy Crossing some 94 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 licences 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 Marr lives) are a considerable distance from the subject area.
The Tribunal must also have regard to the fact that access to the area would be limited to the area in which exploration is taking place and temporary. While the total area of the proposed licences will be of a significant size (96 and 94 square kilometres respectively) intensive ground disturbing exploration will only occur at any one time over a small area. Further, the area of the Bunuba claim is 5,772.59 square kilometres, much larger than the proposed licence areas thus making it less likely that exploration on the licence areas will impact on community and social activities, which I can infer are likely to be carried out over a broader area than that of the proposed licences (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])).
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 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 licences and the activities carried out pursuant to it.
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))
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 licences, but this does not mean there may not be other sites or areas of particular significance 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.
The evidence of Mr Marr at paragraphs 10 and 12 is not contested. It establishes the following facts.
There are several old ceremony grounds on Galamanda country which is within the area of the proposed licences, and which are important places to him and the Bunuba native title party. The nature of these places as old Law grounds to which initiates were taken, combined with Mr Marr’s evidence of their importance, support a finding that they are of particular significance to the native title party in accordance with their traditions.
Currently annual Law ceremonies are carried out at Darlnganaya to the south of the proposed licence area on Bandaralngarri (Fitzroy River). While this place is said to be ‘nearby’ to the proposed licence area, Fitzroy River is in fact some 100 kilometres to the south and east of them. I have no doubt that this site and others at which ceremonies and Law business are conducted are of particular significance to the native title party in accordance with their traditions. However, given the distance of this site and others from the proposed licence area the sites on the Fitzroy River are unlikely to be interfered with by the proposed exploration activity. Mr Marr also says locations for Law businesses are usually swapped each year but despite this the evidence does not support a finding that Law business is currently carried out on the proposed licence area or anywhere in the vicinity which could be interfered with by the proposed exploration. However, the fact that the locations for Law businesses are swapped from time to time supports Mr Marr’s testimony that historically there were a number of ceremonial or Law places in and around the proposed licence area.
There is another site or area called Gunbi which is also of particular significance to the native title party. Mr Marr says it includes ‘all the area around and including Mt Broome’. The summit of Mt Broome is a kilometre or so from the eastern edge of proposed licence area E04/1504.
The map produced by the Tribunal’s Geospatial Section and provided to parties shows the following sites on the Register, some distance away from the proposed licence area.
Site ID 13655 (No KO1507) – Wagiwa which as a mythological site and water source on the Permanent Register, with closed access and no gender restriction.
Site ID 13657 (No KO1509) – Ganinyi Djallalong Yinggow which has the same characteristics as the Wagiwa site.
These two sites adjoin each other and are some 10 kilometres to the south west of E04/1504. Although there is no specific evidence from the native title party I think, given their nature, it is likely these sites are of particular significance to them. Given their distance from the proposed licence area and the fact that their location is known it is unlikely that they will be interfered with by the proposed exploration activity.
The other site shown on the Tribunal’s Geospatial map of potentially more relevance is:
Site ID 13656 – Gunbi which is described as a camp and water source is on the Permanent Register, with open access and no gender restrictions. It does not have a large buffer zone around it.
Although this Gunbi site is on the Register of Aboriginal sites, its area does not coincide with the evidence of the Gunbi area as deposed to by Mr Marr which is some 15 kilometres further to the north. The fact that it is a site of open access and without gender restriction also tends to suggest that the registered site area is not coterminous with the area referred to by Mr Marr. From the Tribunal’s experience in dealing with evidence in right to negotiate inquiries I can be confident that if the place, referred to by Mr Marr as Gunbi, had been reported for inclusion on the Register it would have been designated as a closed area and possibly with gender restrictions. This follows from the nature of the story associated with it and the fact that it is a dangerous place for the native title party. According to Mr Marr (whose evidence is uncontested) the ngarranggarni (dreaming) story for the Gunbi place/area refers to ‘that gorge’. It is unfortunate that the evidence is not more specific in this respect. Richenda Gorge is shown to be within the Gunbi registered site area and could be the gorge referred to by Mr Marr. However, given that Mr Marr’s evidence relates to the area around Mt Broome (some 15 kilometres to the north of the registered site) and which clearly includes some of the area of the proposed licences, I am satisfied on balance that the gorge referred to is adjacent to Mt Broome (the summit of which is only less than a kilometre from the eastern edge of E04/1504). The Geospatial map shows the height of Mt Broome to be 936 metres and a number of contours lines descending from it, including some into the proposed licence area, suggesting the existence of a gorge or gorges within the subject area.
If the Gunbi site as registered was the limit of the area referred to by Mr Marr then it is unlikely that the site would be interfered with by exploration activity on the proposed licence area some 10-15 kilometres to the north of it. However, I am satisfied from Mr Marr’s uncontested evidence that there is an area of particular significance to the native title party in the vicinity of Mt Broome which extends into the proposed licence areas.
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 Government party relies on ss 5, 17 and 18 of the Aboriginal Heritage Act to contend that the grants of the proposed licences are unlikely to interfere with areas or sites of particular significance, that is, the old ceremonial grounds and Gunbi area as described by Mr Marr. 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].)
The grantee party has not provided an indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will 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. The fact that there were negotiations (albeit ultimately unsuccessful) about a heritage agreement to protect sites suggests that the grantee party is aware of and will comply with the Aboriginal Heritage Act. It is also true that the fact that the grantee party is now aware of the existence of the old ceremonial sites and the Gunbi area associated with the ngarranggarni story means it will not be able to rely on the defence of s 62 of the Aboriginal Heritage Act if charged with an offence of interfering with a site.
However, even taking these factors into account, 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 sites and area of particular significance. There is no doubt that the area around Mt Broome to which Mr Marr refers is of special importance to the native title party. The dreaming story about the creation of the landscape and the native title party’s responsibility to ensure that permission is properly given before entering the area is consistent with the Tribunal’s knowledge of similar situations. For instance, the facts bear some similarly to those considered in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon. C.J. Sumner (at [18]) where there were hills associated with a dreaming story, constituting an area of particular importance, the exact parameters of which were not specifically defined. In a recent determination the Tribunal (Member Dan O’Dea) canvassed various determinations in which the Tribunal has considered the protective provisions of the Aboriginal Heritage Act (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 at [81]-[91]). As Member O’Dea says (at [91]) the decision must be made after ‘a careful balancing of the evidence’. He found that although there were sites of particular significance in the area of the tenement the Aboriginal Heritage Act was likely to be effective in preventing interference with them because of the extensive evidence of the intentions of the grantee party. The cases, including those referred to by him, confirm that the protective regime, based on the Aboriginal Heritage Act, will normally be sufficient to make interference unlikely but each case must be considered on its own facts, taking into account the nature of any sites, whether the area is ‘site rich’, whether there is an area of particular significance and the nature of such an area and the intentions of the grantee party.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licences E04/1503 and E04/1504 to Kevin Peter Sibraa and Monte Ling are not acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
16 March 2007
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