Bardi and Jawi Niimidiman Aboriginal Corporation on behalf of its members/Western Australia/Kimberley Quarry Pty Ltd

[2009] NNTTA 153

NATIONAL NATIVE TITLE TRIBUNAL

Bardi and Jawi Niimidiman Aboriginal Corporation on behalf of its members/Western Australia/Kimberley Quarry Pty Ltd, [2009] NNTTA 153 (20 November 2009)

Application No:              WO08/1188

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

Bardi and Jawi Niimidiman Aboriginal Corporation – (WC95/48) (native title party)

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The State of Western Australia (Government party)

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Kimberley Quarry Pty Ltd (grantee party)

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

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  20 November 2009

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237

Mining Act 1978 (WA), s 63

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

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

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

Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner

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

Dann v Western Australia [1979] FCA 332; (1997) 74 FCR 391

Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Daniel O’Dea

Kevin Peter Walley & Ors Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso

Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576

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

Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, (1 February 2002) John Sosso, Member

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

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

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

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

Rosas v Northern Territory (2002) 169 FLR 330 at 359

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

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

Ward v Western Australia (1996) 69 FCR 208

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

Representative of the     

native title party:            Ms Hema Hariharan, Kimberley Land Council

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

Government party:         Mr Greg Abbott, Department of Mines and Petroleum

Representative of the
grantee party:                 Mr Dave Young, Kimberley Quarry Pty Ltd

REASONS FOR DETERMINATION

1. On 27 August 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1749 (‘the tenement’) to Kimberley Quarry Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. The tenement comprises an area of 6.55 square kilometres located 88 kilometres north westerly of Derby in the Shire of Broome.  It is 92.6 per cent overlapped by the Bardi and Jawi Niimidiman Aboriginal Corporation prescribed body corporate (registered from 26 November 2007 following the determination of WC95/48 – Bardi & Jawi People on 30 November 2005).  No other native title claims overlap the tenement.

3. On 24 December 2008, Paul Sampi & Others on behalf of the Bardi Jawi Native Title Claimants (WC95/48) (‘the native title party’) made an expedited procedure objection application to the Tribunal. An amended application was made on 9 January 2009 to insert the Bardi and Jawi Niimidiman Aboriginal Corporation prescribed body corporate as the applicant for the objection application.

4. On 13 January 2009, Deputy President Sumner was appointed as the Member for the purposes of the conduct of the inquiry and on the same day the expedited procedure objection application was accepted by the Tribunal.

5. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

6. On 27 January 2009, the Tribunal convened the first preliminary conference, followed by further conferences, and on 10 June 2009 at an adjourned status conference, in the absence of a resolution by agreement, all parties were aware that the application may proceed to inquiry. Requests were made by the native title party to extend direction compliance dates to further assist parties to negotiate an agreement and to gather affidavit evidence. Over the course of the inquiry eight directions amendments were made which were supported by all parties and approved by the Tribunal. In accordance with the directions amendment approved by Deputy President Sumner on 30 September 2009, the listing hearing was set down for 15 October 2009, however, as agreed, was vacated and all parties advised the Tribunal that the inquiry should be heard ‘on the papers’, that is, without holding a further hearing once the native title party evidence and submissions were received. I am satisfied that the objection can be adequately determined on the papers (s 151(2) the Act).

7. The Government party lodged its evidence and contentions on 28 May 2009 and 11 June 2009. The native title party lodged its evidence and contentions on 6 October 2009. The grantee party is to rely on the evidence and contentions submitted by the Government party.

8. On 8 October 2009, I was appointed by the President of the Tribunal as the Member for the purposes of the conduct of the inquiry.

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’), Deputy President Sumner considered the applicable legal principles as set out in the case law (at 439-449 [7]–[23]). Also considered (at 449-454 [24]–[35]) is the nature of exploration and prospecting licences and conditions to be imposed on the grant. I adopt the findings in Walley for the purposes of this inquiry and note that the Mining Act 1978 (WA) has since been amended and the standard conditions 1-4 to be imposed on exploration and prospecting licences have been strengthened.

2. In particular, standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, 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 and obtain advice from that department that the proposed activities are acceptable.

3. With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), 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).

Contentions of the government party

1. The Government party contends that the tenement will not give rise to any of the issues raised by s 237 (a), (b) and (c) of the Act. The Government party refers to provision s 63 of the Mining Act 1978 (WA) and the deemed conditions which are imposed on the grant of the tenement to contend that the tenement is not likely to interfere directly with the carrying on of community or social activities of the objectors, or, likely to involve major disturbance to land or create rights, the exercise of which is likely to involve major disturbance to the land. Attention is also drawn to the standard conditions in relation to the area as set out in the schedule attached to its contentions.

2. The Government party refers to the protective provisions ss 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (‘the AHA’), which legislates to protect Aboriginal areas or sites. The Government party contends that the enhanced effectiveness of its regulatory regime is due to the increased penalties for breaches of the AHA and its revised Guidelines for Consultation with Indigenous People by Mineral Explorers prepared by the Department of Industry and Resources (see discussion by Deputy President Sumner in Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner at [71].

3. The government party contends there are no Aboriginal communities identified within the area or in the near vicinity of the tenement.

Contentions of the native title party

1. The native title party contends in para 3 of its submission that the grant of the tenement will be a future act attracting the expedited procedure if, and only if, all of the following conditions in subsections (a), (b) and (c) of s 237 of the Act are met. The grant of the tenement is not likely to interfere directly with the carrying on of community or social activities; not likely to interfere directly with areas or sites of significance and 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 and waters concerned.

Evidence of the government party

1. The Government party documentary evidence includes the following:

   ·The Quick Appraisal report establishes the underlying land tenure on the tenement as:

   ₋      Vacant Crown Land (various – 58.5 per cent overlap);

   ₋      Proposed Conservation Park No. PCP/149 (65 per cent overlap);

   ₋      Proposed Marine Park No. PMP/2 (15.2 per cent overlap);

   ₋      Lease No. 3116/10633 (19 per cent overlap);

   ₋      General Lease No. 127584 (6.0 per cent overlap);

   ₋      Road Reserve (Kinney Road – 0.1 per cent overlap).

   ·The Quick Appraisal report does not document historical or current mining activity or record pastoral leases.

   ·Department of Indigenous Affairs (‘DIA’) documentation provided by both the Government party and native title party reveals one site registered under the Aboriginal Heritage Act 1972 (WA) located within the tenement – Nulurud, Dampierland (Site ID 14652 – open access, no restrictions).

   ·The Tengraph plan and topographical map depicts numerous Aboriginal communities located within the vicinity and approximately 5 to 15 kilometres from the tenement area, including the communities of Djunbid, Goonjarian, Gudumul, Maddarr, Buniol, Nyilii and Julgnunn.

   ·The Conditions Extract includes Standard conditions which are imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4).  

2. The standard conditions for the area to be imposed on the grant are 5-11 as follows:

   5.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on the foreshore, seabed and navigable waters.

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

   In respect to the area of land designated PCP 149 (Proposed Conservation Park) in TENGRAPH, hereinafter referred to as the designated area, the following additional conditions shall apply:

   7.Prior to accessing the licence area, the licensee shall consult with the Environmental Officer, DoIR, and ensure that where required all vehicles and equipment entering the designated area are washed down to remove soil and plant propagules and adhering to such conditions specified for the prevention of the spread of soil-borne diseases.

   8.Prior to any activity involving disturbance to vegetation and soils including:

   ·      exploration access; and/or

   ·      exploration sampling;

   the licensee preparing a detailed program for each phase of proposed exploration for written approval of the Director, Environment, DoIR. The Director, Environment, DoIR to consult with the Regional/District Manager, Department of Environment and Conservation or other government agency (as relevant) prior to approval. This program to describe the environmental impacts and programs for their management and is to include:

   ·      maps and/or arial photographs showing the proposed locations of all ground activities and disturbances;

   ·      the purpose, specifications and extent of each activity and disturbance;

   ·      descriptions of all vegetation types (in general terms), land forms, and unusual features likely to be disturbed by such proposed disturbances;

   ·      details on proposals that may disturb sensitive terrestrial habitats including any declared rare flora and fauna if applicable;

   ·      procedures to protect the integrity of special ecosystems such as wetland systems, mangal communities and rainforests areas (and/or associated rainforest monitoring sites) if applicable;

   ·      techniques, prescriptions, and timetable for rehabilitation of all proposed disturbances;

   ·      undertaking for corrective measures for failed rehabilitation;

   ·      details of water requirements from within the designated area;

   ·      details of refuse disposal; and

   ·      proposals for instruction and supervision of personnel and contractors in respect to environmental conditions.

   9.Access to and from and the movement of vehicles within the licence area being restricted to ground or seasonal conditions and Draft routes approved under the program or otherwise agreed by the Environment Officer, DoIR.

   10.At agreed intervals, not greater than 12 monthly, the licensee providing a brief report to the Director, Environment, DoIR outlining the progress of the operation and rehabilitation program and the proposed operations and rehabilitation programs for the next 12 months.

   11.Prior to the cessation of the exploration/prospecting activity in the designated area, the licensee notifying the Environmental Officer, DoIR and arranging an inspection as required.

3. The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed:

   1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

   2.The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

   3.The land the subject of this licence may affect a Threatened Ecological Community. The licensee is advised to contact the Department of Environment and Conservation’s Threatened Species and Communities Unit for detailed information on management.

Evidence provided by the native title party

1. The submissions of the native title party include the affidavit of Mr Frank Davey (‘FD affidavit’) made in the following terms:

‘AFFIDAVIT OF FRANK DAVEY

I, Frank Davey, of Gambanan Outstation near One Arm Point via Broome in the State of Western Australia, affirm:

My name is Frank Davey. My Aboriginal name is Dibi. I was born in 1949 on Sunday Island. My buru is the Ardoil region. I have lived and camped all over my Bardi Country including in “the exploration licence area”. I have travelled and conducted ceremony and collected bush tucker all over Bardi country.

1.I am one of the senior people for the Bardi Jawi native title holders. I am the Chairperson for the Niimidiman Bardi Jawi Aboriginal Corporation, which holds the Bardi and Jawi native title on trust for the native title holders.

2.I know the area where Kimberley Quarry Pty Ltd, “the grantee party”, have applied for Exploration Licence Number E04/1749, “the exploration licence area”, very well, because I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A”.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

The exploration licence area falls within Bardi country on an exclusive possession area. Bardi country is the country where Bardi language is spoken. It is Bardi Country all the way from the Ardiyooloon, One Arm Point down to Goodenough Bay. Western boundary to Kelp Creek is all Bardi Country. I know this Country.

3.I had lived and camped all over my Bardi Country. As a young man I always camped with my family the area in and around Deep Water point and the exploration license area.

4.The area around the exploration license is known as Goolboon we held Law ceremonies there in the early days. There are many ceremony grounds there. There are sacred Law ceremonies and songs that happen in that area. These are very important places but they are for men’s business so I can’t talk about it. Bardi people have obligations to care for all the land and waters in Bardi country.

5.There is good fishing in the exploration licence area. In the early days we got a lot of the Hawkes Bill Turtle. But now it is illegal. We fish for girriid, big blue-bone fish, amilj, deep sea mullet, ngarrangg, mud crab, and jalnggoon big rock oysters. There is a lot of different types of aarli fish. We still do it now, today. We fish there all the time. It is our main source of food and we still collect that today.

6.There are many sacred sites there on the exploration licence area. It is an important place. Old people used to go walkabout there, through the Irrgil, Boomerang trees on the exploration licence area. Ceremony runs through that area. I cannot say the stories because it is men’s business. But there are many stories.

7.We collect different types of aarlimay, bush tucker and bush medicines on my country, including in the exploration licence area. There are a lot of bush foods and bush medicines around there, inside the exploration licence area. We still use a lot of bush medicines and eat a lot of bush tucker from in and around the exploration license area. We collect madoorr, which is known as Gubinge and is known as a good source of vitamin C. We use marral red fruits for colds and head colds. We use the bark of those trees for sores. The bush medicines can be used for chest pains, back pains anything to do with cough, headaches and toothaches. We use a lot of bush medicines, different species of trees like the dalwarr, gardenia tree, gamaloom, wild pear tree, iilarr, wild apple tree and the birimbiri ebony wood tree can be used for different things. We use the stumps and the bark. We boil it in water and rub in on sores.

8.We collect aalimay from in and around the exploration license area. Food like dalwarr the gardenia tree, goorralgar, white raisins, jooongoon, orange berry, gamaloom, wild pear, iilarr, wild apple.

INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

9.My country and the Law we follow came from the Dreamtime, from the milmoljunwun 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.

10.The old men used to do ceremony up there. They used to tell stories. The exploration license area holds a men’s law ground. Today, we still visit that place for business.

11.The exploration license area has many sites. The mangrove rafts are there. Old people used the mangrove for making rafts. There are middens in this area from where our old people used to camp, fish and hold ceremony.

12.We have to look after all the important places in our country. We are passing on our stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and they look after it.

13.We used to have Law ceremonies on and around the exploration license area. There are ceremony grounds there. These are very important places. Mining people must not damage these places.

MAJOR DISTURBANCE TO LAND OR WATER

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.Gadiya must ask for permission from traditional owners before coming onto Bardi Country because we have a lot of very special places on that country, from our old-time people and from the early days. The exploration license area is a man’s law ground, and a no go area. Our belief is that something could go wrong with these strangers if they come into our country uninvited. Accidents might happen or they might get sick or paralysed if they touch any sacred site.

16.We have won our Native Title and we have exclusive possession over the exploration license area. I have native title so that we can protect our Country, and that if people want to come on to our country they do it the right way. They must ask permission from the traditional owners, and we want them to sign an Agreement so that we can protect the places and so that they respect our native title rights and interests.

17.If strangers damage a site, artefact or our country, we feel very upset you know. We feel very sad, like someone close to us has died. We have to look after our country.’

1. The Tribunal has held in the past that it is important that a deponent to an affidavit specify whether they are a member of the relevant native title group, the position they hold and on what basis they can speak for the country or such other information to allow the Tribunal to assess what is being deposed as a proper reflection of the traditions of the native title party (Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Daniel O’Dea at [20] (‘Ashburton Minerals Ltd/Ripplesea Pty Ltd’).

2. The evidence of Mr Davey is uncontested and I accept it.  Mr Davey is one of the senior people and Chairperson for the Bardi and Jawi Niimidiman Aboriginal Corporation (prescribed body corporate), which holds the Bardi and Jawi native title on trust for the native title party. I accept that Mr Davey has the necessary authority to speak for country on behalf of the native title party.

Community or social activities (s 237(a))

1. French J in Smithv Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 451 [26] (‘Smith’) refers to the predictive assessment in relation to s 237 subsection (a) and the notion of direct interference which involves an evaluative judgment as to whether the future act is likely to be the proximate cause of the interference. The interference must be substantial and not trivial in its impact on community or social activities (Smith at 451 [26]). The evaluation is contextual and adopts a common sense approach taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]). The relevance and weight to be given to such evidence will depend on the circumstances of the case (Western Australia vSmith (2000) 163 FLR 32, NNTT WO99/511, Hon E M Franklyn QC at 51 [35]; Kevin Peter Walley & Ors Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso, at [14]-[19]; Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, (1 February 2002) John Sosso, at [25]-[32].

2. The native title party contends in para 13 and 16 of its submission that the community or social activities of the native title party are a manifestation of their claimed native title rights and interests.  The members of the native title party exercise those rights and interests by conducting Law ceremonies, looking after sites of significance, living, camping, fishing and collecting traditional foods and medicines on the area of their native title claim and the tenement area.  Members of the native title party have ancestors and family who are buried close to the tenement area.

3. Mr Davey uses the pronouns ‘I’ and ‘we’ interchangeably during the course of his affidavit.  ‘We’ sometimes appears to refer to the Bardi people as a whole and sometimes to his family group (FD3).  Specifically, in relation to paragraphs 4 to 8 of his affidavit, which are relevant to community or social activities, I take the use of ‘we’ to refer to his family group, albeit that other Bardi people may undertake the same activities within the same tenement area.

4. Mr Davey attests that the tenement area falls within Bardi country ‘and we have exclusive possession over the exploration licence area’ (FD16).  He states he knows this country and has lived and camped all over Bardi country (FD3).  Mr Davey states that there is good fishing ‘in the exploration licence area’ and he gives names of fish and seafood including girriid, big blue-bone fish, amilj, deep sea mullet, ngarrangg, mud crab and jalnggoon, big rock oysters which he says they catch there (FD5).  He says ‘we fish there all the time’ and ‘It is our main source of food and we still collect that today’ (FD3).  Mr Davey refers to the collection of bush tucker and medicine (FD7) ‘we still use a lot of bush medicines and bush tucker from in and around the exploration licence area’. He gives the names of plants and foods and what they are used for, in particular, as a good source of vitamin c and for medicine for chest pains, back pains, head colds, toothaches and to rub on sores.

5. Mr Davey refers to the area around the tenement where Law ceremonies were held in the early days (FD4). He says there ‘are many ceremony grounds there. There are sacred Law ceremonies and songs that happen in the area. These are very important places but they are for men’s business so I can’t talk about it’ (FD6).

6. The evidence of Mr Davey establishes that members of the native title party, including Mr Davey and his family, still use and enjoy community or social activities in and around the tenement area, in particular, fishing and the use and collection of traditional foods and bush medicines. Later in his affidavit, Mr Davey makes reference to sacred Law grounds within the tenement area and song lines passing through the tenement area (FD4 & FD15). Mr Davey attests that when they visit the tenement area they visit those sites and use the ceremonial grounds for ‘business’ (FD10). I consider that there is a distinction between what needs to be established in order to attract s 237(b) of the Act in relation to sites of particular significance and the actual contemporary use of the area for ceremonial purposes which form a part of the community or social activities of the native title party. In this case, Mr Davey attests to the continuing use of the Law grounds without providing the sort of evidence which would be necessary to satisfy me that the area was a site of particular significance. Notwithstanding that, the evidence of the continuing activities associated with the conduct of ceremonies is a relevant community or social activity for the purposes of making a predictive assessment required of the Tribunal in relation to s 237(a).

7. The Bardi Jawi native title determined area consists of some 3,407 square kilometres.  The total area of the proposed tenement is 6.55 square kilometres.  It has been said in the past that in circumstances where the tenement area is a tiny proportion of the native title determination area, it might well be inferred that the native title party will be able to carry out many of the activities that are described in their evidence, in other parts of that claim area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso at [43]-[44]). In this case, the proposed tenement area is situated on or near the coast and intrudes into the intertidal zone at the base of a small peninsula protruding into Cygnet Bay, known as Deep Water Point. The location of the proposed tenement at the base of this peninsula and straddling the inter-tidal zone gives credence to Mr Davey’s description of the nature and intensity of the activities which take place on the proposed tenement. As has been said, when conducting the predictive assessment with which the Tribunal has been charged, it is necessary to evaluate the circumstances contextually and to use common sense (see Smith at 451-452 [27]). In my view the geographical location of the proposed tenement area, in conjunction with the described activities, suggests that the portability of the activities described by Mr Davey is far less likely to be possible than when dealing with a proposed tenement area which is surrounded by country which is largely indistinguishable from it. The tenement area contains the registered site 14652, identified as Nulurud, Dampierland. Within about 5 kilometres there are a number of other sites, which are identified later in this determination, scattered along the coast between Deep Water Point, Cunningham Point and Amatangoora Point which is at the northern end of Goodenough Bay. The tenement area is also identified as being only 29 kilometres away from One Arm Point, the major community within the region. The geographical location of the proposed tenement area, the proximity of a major community, and the uncontested evidence of Mr Davey about the activities currently carried out within the tenement area, satisfy me, that, while it may well be possible to carry out many of the activities that he describes in his evidence in other coastal areas of the native title party’s determined claim area, the activities that they carry out in this area are significant. In these circumstances, given the nature of the activities which might be undertaken by the grantee party, it may well be, in the absence of evidence to the contrary, that the grant of the tenement is likely to interfere with the carrying out of those community or social activities.

8. The grantee party has not provided any evidence of what it intends to do in relation to the exploration activities it will carry out within the tenement area.  In the absence of evidence of the grantee party’s intentions, the question of direct interference must be assessed by reference to the relevant aspects of the government party’s regulatory regime under the Mining Act 1978 (WA) including provisions of s 63 and the conditions to be imposed on exploration licences (Walley) at [9].

9. 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), Daniel O’Dea (‘Butcher Cherel’) at [32] and [59]-[60] the Tribunal accepted, that in the face of detailed evidence and submissions relating to the intention of the parties, both in terms of the nature of the exploration activity it intended to conduct and the manner in which it intended to interact with the native title party, the likelihood of interference might be markedly reduced. 

10. In this case, as no such submissions have been provided, the grantee party specifically relies on the submissions of the government party.  In making the predictive and contextual assessment as to the likelihood of interference with the community or social activities, I must assume that the grantee party will fully utilise its statutory prerogatives in circumstances where the tenement is granted.

11. In my view, the present case exhibits factors which lead me to consider that the proposed exploration activity is likely to directly interfere with the community or social activities of the native title party. The native title party’s members live in a number of locations and communities within close proximity to the tenement area which is frequently visited. It is an area that, because of its location, is a productive area for fishing and foraging. It is an area where the native title party conducts ‘business’. The tenement area has no previous exploration, mining or pastoral activity (FD4). Importantly, the grantee party has provided no evidence of how it might address the possibility of interference with these activities. Consequently, I find that community or social activities of the native title party are likely to be interfered with pursuant to s 237(a) of the Act.

12. With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208, that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions para 14), as I and other members of the Tribunal have said repeatedly in the past, 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) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement, based on the previous words ‘community life’ in s 237(a), is no longer applicable.

Sites of particular significance (s 237(b))

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 AHA shows one open access site within E04/1749, 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 tenement 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 AHA protects all Aboriginal sites, whether on the Register or not.

2. The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel 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.

3. The affidavit evidence of Mr Davey attests to the fact that the following are areas of importance and significance within or in the vicinity of the tenement:

   ·‘My country and the Law we follow came from the Dreamtime, from the milmoljunwun. I know the exploration licence area well. There are many places in my country, including inside the exploration area, which are very important and have great significance in the traditional religion of my community.’ (FD9)

   ·‘The exploration license area holds a men’s law ground. Today, we still visit that place for business.’ (FD10)

   ·‘The exploration license has many sites. The mangrove rafts are there. There are middens in this area from where our old people used to camp, fish and hold ceremony.’ (FD11)

   ·‘There are ceremony grounds there. These are very important places. Mining people must not damage these places.’ (FD13)

   ·‘Gadiya must ask for permission from traditional owners before coming onto Bardi Country because we have a lot of very special places on that country, from our old-time people and from the early days. The exploration licence area is a man’s law ground, and a no go area. Our belief is that something could go wrong with these strangers if they come into our land uninvited. Accidents might happen or they might get sick or paralysed if they touch any sacred site.’ (FD15)

   Mr Davey further attests that:

   ·‘We have won our Native Title and we have exclusive possession over the exploration licence area. I have native title so that we can protect our Country, and that if people want to come on to our country they do it the right way. They must ask permission from the traditional owners, and we want them to sign an Agreement so that we can protect the places and so that they respect our native title rights and interests.’ (FD16)

   ·‘If strangers damage a site, artefact or our country, we feel very upset you know. We feel very sad, like someone close to us has died. We have to look after our country.’ (FD17)

1. The evidence provided by the native title party in relation to sites is uncontested and I am satisfied that there are likely to be sites of significance to the native title party in accordance with their traditional laws and customs within the tenement area.  However, the affidavit evidence of Mr Davey does not refer to any particular site or provide any basis for assuming that any site is of particular significance to the native title party other than by the mere assertion that the site is very important.

2. From the Tribunal map, which was circulated to all parties on 22 October 2009, it is uncontested and confirms the registered site ID No. 14652 as located within the tenement area and within determined lands of the native title party. The Tribunal map also depicts other DIA sites which are not documented in the Government party’s documentary material, including the following:

   ·14657 – Garamal, Dampierland;

   ·14654 – Wa:ra, Cunnington Point;

   ·14655 – Bidjingan, Dampierland;

   ·14650 – Gulbun, Deep Water Point.

The DIA sites are located within approximately 3 to 10 kilometres of the tenement area. These sites, while noted may be sufficiently located beyond the tenement area to ensure that interference with them is unlikely.

1. The Tribunal has frequently found in the Kimberley that there are tenement areas the subject of the purported application of the expedited procedure where the native title party has specifically located and explained the particular significance of site in that area to the native title holding group (see (Ashburton Minerals Ltd/Ripplesea Pty Ltd) at [32]-[42] and 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 at [27]-[30]).

2. In contrast, in this matter, there is a complete lack of specificity in relation to both the location of the site and the nature of its significance to the native title party. The native title party is required to provide sufficient detail and specificity in order to allow the Tribunal to make the predictive assessment in accordance with s 237(b) of the Act. In this matter there is insufficient evidence to establish that there are sites of particular significance within the area of the proposed tenement. That being the case, it is not necessary for me to proceed to consider the question of presumption of regularity and I find that in accordance with s 237(b) that it is not likely that any sites of particular significance will be interfered with.

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

1. In relation to the third limb of s 237 of the Act an evaluative judgment is required on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it). This is from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1979] FCA 332; (1997) 74 FCR 391).

2. The affidavit evidence of Mr Davey in FD15 expresses concern that the ‘exploration licence area is a man’s law ground, and a no go area.’ The belief is that something ‘could go wrong with these strangers if they come into our country uninvited. Accidents may happen or they might get sick or paralysed if they touch any sacred site.’ Mr Davey states that if sites are damaged there is sadness for the native title party (FD17). I accept that the presence of strangers on the subject area may be upsetting to the native title party. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural concerns about unauthorised access, in terms of the native title party’s traditional laws and customs, alone, cannot form the basis of the finding of major disturbance. There must be some physical disturbance over and above that which it has been judged will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that could be pointed to will be the exploration activities to be conducted by the grantee party. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party in relation to their offence at the grantee party entering the land without speaking to them, is not sufficient to establish that major disturbance is likely to occur. I find that it is unlikely that there will be major disturbance to land or waters in this case.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E04/1749 to Kimberley Quarry Pty Ltd is not an act attracting the expedited procedure.

Daniel O’Dea
Member
20 November 2009