Bruce Monadee and Others on behalf of the Ngaluma Injibandi/Western Australia/Auriferous Mining Pty Ltd; Red Bluff Nominees Pty Ltd
[2002] NNTTA 115
•26 June 2002
NATIONAL NATIVE TITLE TRIBUNAL
Bruce Monadee and Others on behalf of the Ngaluma Injibandi/Western Australia/Auriferous Mining Pty Ltd; Red Bluff Nominees Pty Ltd, [2002] NNTTA 115
(26 June 2002)Application No.: WO01/164 (E47/1021)
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -IN THE MATTER of an inquiry into an expedited procedure objection application
Bruce Monadee and Others on behalf of the Ngaluma Injibandi (Native Title Party)
- and -
The State of Western Australia (Government Party)
- and -
Auriferous Mining Pty Ltd, Red Bluff Nominees Pty Ltd (Grantee Party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Deputy President The Hon EM Franklyn QC
Place: Perth
Date: 26 June 2002Catchwords: Native Title – Future Act – expedited procedure objections application to proposed grant of exploration licence – evidence insufficient to support objection on s 237(a) grounds but such that objection on s 237(b) grant upheld – observations on ss 10 and 15 of the Aboriginal Heritage Act 1972 – determination that grant does not attract the expedited procedure.
Legislation: Native Title Act 1993
Aboriginal Heritage Act 1972
Cases: Smith v Western Australia (2001) 108 FCR 442
REASONS FOR FUTURE ACT DETERMINATION – WO01/164
Background
[1] On 30 March 2001, the State of Western Australia (“The State”) gave notice under Section 29 of the Native Title Act 1993 (“the Act”), that it may grant to Auriferous Mining Pty Ltd and Red Bluff Nominees Pty Ltd (“the grantees”) an exploration licence the subject of application 47/1021 (the proposed licence) over 111.86 square kilometres of land situated 61 kilometres easterly of Roebourne, the notice containing the statement that the State considers the grant to be an Act attracting the expedited procedure.
[2] On 23 July 2001, Ruth Monadee and others on behalf of the Ngarluma Indjibarndi people, the native title claimants under application WC99/104 registered 14 July 1999 (“the objectors”), lodged an objection against the inclusion of the said statement in such notice on the grounds that the objectors have connections “through all the country identified on the map which include E47/1021,” which connection includes hunting game, collecting bush tucker and medicines, visiting and looking after sites. It would appear that the “map” referred to is one or both of the maps annexed to the document of acceptance of the objection on the 3 September 2001, and that they are the maps provided to the objector with the said s 29 notice. The objectors contend that exploration activity will scare away bush animals, drilling and costeaning will destroy plants used for bush tucker and medicines and may destroy sites, and that the grant will considerably impact on the objecting community’s conduct and enjoyment of these activities. They further contend that the grant, if made without speaking to the elders, is “against” the objectors’ customary law and beliefs and that artefact scatters left by ancestors exist in the area of the proposed licence which, whilst not recorded sites, are particularly significant because they record the historic activities and movements of the objectors’ ancestors. They complain that the action of driving across country to get to the area of the proposed licence, as well as exploration activity, is likely to destroy those scatters unless they are properly identified, recorded and protected. Those grounds bring into consideration each of paragraphs (a), (b) and (c) of s 237 of the Act.
[3] The parties have each agreed that this objection application can be determined “on the papers” and I am satisfied that the issues for determination can be adequately determined on the documents and other material lodged with or provided to the Tribunal without holding a hearing.
[4] The State and the objectors have each lodged and served statements of contention and other material. The grantees have advised that they rely on the material provided by the State.
[5] The State’s Evidence
[5.1] The State’s uncontested documentary evidence reveals the proposed licence to be situated on Pastoral Lease 3114/558 (CL311/1966), Crown Reserve 12246 and a road. It states without challenge that there is no Aboriginal community within its vicinity. It reveals there to be nine sites recorded on the register of Aboriginal sites in the area of search of which 6 are within the boundaries of the proposed licence. Those six are “Bookingarra Creek” (PO5434), situated on the eastern boundary of the proposed licence less than 1 kilometre south of the northernmost section of its northern boundary: (2) “Rain Dreaming” (PO5028) situated approximately 2¾ kilometres from its western boundary and approximately 1 kilometre of the northernmost section of its northern boundary: (3) “Tdalungang (Granite Hill)” (P00821) (hereafter referred to as “Tdalungang”) situated approximately 6/10 kilometre to the north of its southern boundary: (4) “Sherlock Station” (P00539) situated approximately 2 kilometres from the nearest point on its northern boundary: (5) “Stones Well” (P00547) situated approximately 2/10 kilometre from its eastern boundary and 1½ kilometres from the southernmost section of its northern boundary, and (6) “Goodluck Hills” (P00215) situated approximately 2½ kilometres from its western boundary and 1 kilometre from the southernmost section of its northern boundary. There are current exploration licences abutting the proposed licence, they being E47/988 to the north-west and E47/878 to the east. The Tengraph map identifying adjacent tenements also reveals a further granted tenement, having a common boundary with a substantial part of the northern boundary of the proposed tenement. The nature of that granted tenement is not stated. Current licences E47/824 and E47/760 are in close proximity (approximately ½ kilometre) to the southern boundary of the proposed licence. A substantial part of the northern boundary of the proposed licence is also common with the boundary of exploration licence 47/988, a substantial part of its eastern boundary is common with exploration licence 47/878 and the whole of it’s southern boundary is within approximately ½ a kilometre of the respective northern boundaries of exploration licences 47/824 and 47/760. Also abutting its boundaries are applications for exploration licences 47/976 and 47/1120 and application for mining lease 47/470. On EL47/988 there is an aircraft landing ground (shown on the map adjacent to the word “Sherlock” (which I understand to refer to the Sherlock Station homestead) which landing ground is less than 2 kilometres from the proposed licence area. Approximately 7 kilometres to the north-east of the proposed licence area is another aircraft landing ground on the land of subject of application for exploration licence E47/976. The North-West Coastal Highway runs through the proposed licence area within its northernmost third from the north-east in a south-west direction to its western boundary. Sites “Bookingarra Creek”, “Rain Dreaming”, and “Goodluck Hills” are each to the north of that highway and located between 2/10 and 8/10 (approximately) of a kilometre from it. The map also reveals a number of minor roads and tracks running through and within the boundaries of the proposed licence to wells and other places and shows the location on the proposed licence area of six places, described in the accompanying information as “Well/Bore with windmill”, respectively named “Wild Dog B (abd)”, “Nerrily W”, “Goodluck W”, Opaline W”, “B (abd), and “Lamb W”.
[5.2] The three sites outside the proposed licence area are “Yodda City” (PO0548) to the east, less than ½ kilometre from its northern boundary. “Little Sherlock” (PO0534) to the west, less than 1 kilometre from its eastern and northern boundaries, and “Benmore Well Granites” (PO0620) to the south less than ½ kilometre from the southern boundary.
[5.3] Because I had difficulty in identifying some of the surrounding tenures as shown on the Tengraph map provided by the State I requested that it provide further information. This it did by providing a map covering a larger area with more positive markings together with written information to assist in identification. A copy of that map and information was made available to the parties, the originals also being available for inspection if required. However, in the end I concluded that they did not in any relevant way add to the information provided in the Tengraph map originally provided by the State.
[5.4] The information provided by the State from the register of Aboriginal sites under the Aboriginal Heritage Act 1972 reveals that only “Tdalungang” and “Goodluck Hills” are on the permanent register of sites, the remaining four sites being on the interim register. All six sites are registered as having “open access” with no gender restrictions. Under the heading of “Reliability” only “Goodluck Hills” is registered as “reliable”, the others being registered as “unreliable”. The respective sites types are registered as follows: Bookingarra Creek – “artefact and grinding patches/grooves”: Rain Dreaming: “ceremonial”: Little Sherlock and Tdalungang – “man made structure” “engraving”, “artefact”: Sherlock Station – “engraving”: Stones Well – “artefact”: Goodluck Hills – “ceremonial”, “engraving”, “artefact”.
[6] The objectors rely upon the affidavits of Mr Frank Smith (sworn 11 February 2002), Ms Dora Solomon (sworn 4 December 2001), Ms Pamela McGrath (sworn 31 January 2002) and Mr Cedric Stillman Davies (sworn 31 January 2002).
[7] Mr Frank Smith deposes as follows:
I, Frank Smith of 9 McRae Street, Wickham in the State of Western Australia, mineworker, being duly sworn make oath and say as follows:
1.I am an Ngaluma elder on the Ngaluma and Injibandi native title claim and I am recognised by the Ngaluma and Injibandi people as being able to speak for and make decisions about Ngaluma country in and around Sherlock station.
2.I have seen a map, which shows the location of tenement E47/1021 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. The tenement area is located in part on Sherlock Station. This country is Ngaluma country and is part of the Ngaluma Injibandi native title claim.
3.I was raised up on Sherlock station, and then I worked on there as a station hand for a couple of years in the late 1980s. I have been all around the area of the proposed tenement mustering, and I know that country well. My parents lived and worked on Sherlock station for many years, as did my grandfather. When I was a child, I would go out bush with my father and my uncle and they taught me about the country all around Sherlock station.
4.I speak both Ngaluma and Injibandi languages, and I have been through the Law. I have three children, and I teach them about the language and culture. My two eldest children lived with me on Sherlock station for two years when I was working there. I would take them out and show them the country, just as my father and uncle had showed me. All my children are Ngaluma children, and my eldest son, Shannon Smith, has been through the Law.
5.On Wednesday 30th January 2002, myself and other Ngaluma and Injibandi people visited the area of the proposed tenement with Pamela McGrath from the Pilbara Native Title Service. This area is really good country for hunting and collecting bush medicines and bush foods, and it is important for Ngaluma and Injibandi people because this is a place where we can come when we want to get out bush. It is close to Roebourne and Wickham where most of our people live, and we have a good relationship with the managers of Sherlock station. They let us to come here to hunt and fish and camp, no problems. I come out here whenever I can. Last time I was here was last year, and I brought my kids with me.
6.There is a good chance that there area many tools and axes from our old people throughout the area of the proposed tenement. Our ancestors hunted all through this area. It is a good hunting ground, plenty of kangaroos and emus and turkeys, and there is the river and at least one permanent soak that I know of where they can drink. There is a soak at Wild Dog Creek; there is no other water around there, but that soak is there all the time and my old people would have used that soak for drinking too.
7.There are some places around Sherlock station, where there are rock engravings. I know of some in the proposed tenement area at Tdalungang (Granite Hill). My old uncle took me there to show me those things, and he told me they had been there forever. Tdalungang is about a mile long, a big granite hill, and there are plenty of those engravings there. As the traditional owners of this country, Ngaluma people have a responsibility to look after this place for our descendants.
8.There area plenty of important plants and animals in the area of the proposed tenement, ones that Aboriginal people use whenever they can get them. There is one in particular that is good bush tucker, the jutanberi bush, or jima bush is his whiteman’s name. This bush only fruits after the rain. It doesn’t grow all over the place, but only in the area of Sherlock, Croydon, Pyramid and Warrambie stations. I am concerned that this plant will be at risk from any mining or exploration work that happens in the area.
9.There are some places in the area of the proposed tenement that are very important to our people, including a rain talu (increase site), a Law ground and a place we call a wanta talu [near Grid Reference 50K 0571803 7678701 (AGD66)]. This wanta talu is a dangerous place, a place of spirits that people should avoid. If you go there then it will make you go made. That is what wanta means. You will go silly and end up walking around in circles.
10.It is my responsibility as one of the traditional owners of this place to tell people about places like the wanta talu so that they are protected. If we tell someone not to go somewhere, then they should listen to us. If the people from Auriforous Mining and Red Bluff Nominees don’t come and speak to us about this country, then they might come across this place and their spirit will be hurt and we will get the blame.
11.If the mining company comes in here, making roads and digging up the ground, then they are going to damage this area for hunting, especially if they do work near any of the water holes. There are a lot of hunting things here for us, and all of them need to water holes to drink from the trees to give shade and food. If the mining company does drilling work in the area they might take these things away from the animals and it won’t be good to hunt here anymore.
12.I have been informed that if the proposed tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:
a. Reverse circulation drilling in areas of hypersaline groundwater.
b. Diamond (core) drilling.
c. The excavation of up to 1000 tonnes of material.
13.I have read the affidavit by Cedric Stileman Davies dated 4 December 2001 and understand what the above activities involve.
14.I believe that if the mining company starts doing all these things in the proposed tenement area then it will be a big disturbance to the land. The ground and vegetation would be disturbed by them making tracks through the tenement area and the drilling could disturb the sites around the tenement area. The wildlife will be scared away and the presence of the mining company will make our access to this area more difficult.
15.Ngaluma people speak for this country, the country where the proposed tenement is. Other Aboriginal people who are not Ngaluma still need our permission to come here to hunt or fish or cut down trees. They will come and ask us first if they are coming here.
16.The mining company who wants to come and do work in the area of the proposed tenement should come and see us first, so that if there is something in the area where they want to work, we can tell them about it and together we can make plans to miss it. It is best to come and talk to us first so we can have an agreement and we can tell them where they are not allowed to mine. If they don’t come and talk to us first, then they will make it more difficult for us to protect our country and our heritage properly.
SWORN by the said Deponent ) Frank Smith
At Karratha WA in the said State of )
Western Australia this 11th day of )
February 2002 )
[8] Mrs Dora Solomon deposes as follows:
I, Dora Solomon of 585 Munga Court, Roebourne in the State of Western Australia, pensioner, being duly sworn make oath and say as follows:
1.I am an Injibandi elder on the Ngaluma and Injibandi native title claim and I am recognised by the Ngaluma and Injibandi people as having knowledge about the country around Jikurat-na (Sherlock Station).
2.I have seen a map that shows the location of tenement E47/1021 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. The tenement area is located in the vicinity of Jikurat-na (Sherlock Station). This country is Ngaluma and Injibandi country is part of the Ngaluma and Injibandi native title claim.
3.I speak both Ngaluma and Injibandi languages, and I know the country around the area of the proposed tenement because I lived there for many years. This country is Ngaluma country. I was married to an Ngaluma man, and we lived and worked on Jikurat-na when I was a young women with my first two children. We worked all through this area, and my old husband used to tell me about the country. He told me about water holes, and special places like talu (increase sites) that are very important to this country. My husband is now deceased.
4.On Wednesday 30th January 2002, myself and other Ngaluma and Injibandi people visited the area of the proposed tenement with Pamela McGrath from Pilbara Native Title Service. We went to visit a talu site and showed her some of the other places in that country that should not be disturbed.
5.There is a place in the area of the tenement that is a talu for making rain [located near grid reference 50K 0570052 7685011 (AGD66)]. Really, there are three of them there that I can remember, and all of them make rain. There is the Yirakutji talu, that one brings rain from over the tableland side. One is Kantungarra talu, he brings rain from the seaside. One of them is a real cheeky one for making thunder and lightening. You got to be real careful not to touch these ones. It will rain all day if you do. When you pick up these rocks, you got to put them in a billy can. Never chuck them in the river, cause if you do it will rain and rain and never stop.
6.These rain talu are very important places that need to be properly protected. We would like to have this place fenced off to keep people away. If the people who want to do exploration work in this area come here and disturb this place, then there could be a big trouble for everyone. Lightening gonna hit those fellas.
7.It is the responsibility of myself and other Ngaluma and Injibandi elders to make sure that we look after this country so it will be here for us and our kids to use in the future. If we don’t then they will have nothing. We don’t want that talu place to be destroyed because then it will not be there for our children and our grandchildren.
8.There are lots of birds here, like the Kalaju (wild pigeon). You can hear him singing out to let you know when a stranger is coming, or maybe when an emu is coming to the water. And there are julaulu (Spinifex pigeon). And nyimai, a little bird that belongs in the bush, not by the river. These birds drink water at the soaks and windmills, they don’t go down to the river. They stay in the flats and use the shade of the trees and bushes there. I am worried that the people from the mining company who want to explore this area will damage the trees that the little birds use for shade and making nests. There will be nowhere for them to go if the water is disturbed.
9.There are lots of water points in the area of the tenement that cattle and wildlife use. These need to be protected so that the birds and kangaroos and emus can still use them.
10.There are plenty of bush foods and medicines in this area. Things lime marra-wood, that Bloodwood tree. It’s good if your are feeling sick inside. I’ve got some at home that I use whenever I am feeling crook. You can eat nuts from this tree as well.
11.There is a malanjina place, a Law ground, in this area, near the road going to the station, near Marrapuli (Sherlock River). It is a very important place and should not be disturbed by anybody. The people from the mining company need to come and talk to us so we can show them where that place is. It would be very disrespectful for them to go there without our permission and disturb that place.
12.I have a responsibility to pass my knowledge about our country to our young people. This is how we keep our traditions going. We show our children the country, tell them the stories and teach them how to look after country. They must learn how to care for this country and look after the plants and animals that live there so it will always provide form them and their children. I taught my children how to speak their language, and I continue to teach their children as well. I teach our kids as much as I can about our culture so that they won’t forget it. It is very important to take kids out on their country for them to learn about it. It is very difficult for kids to learn it they never go out and see for themselves the things that we tell them about. I took my little uncle Croydon Hicks out with me when we went to Jikurat-na the other day. He is learning his language and I am teaching him about his country and culture.
13.I have been informed that if the proposed tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1989:
a. Reverse circulation drilling in areas of hypersaline groundwater.
b. Diamond (core) drilling.
c. The excavation of up to 1000 tonnes of material.
14.I have had the affidavit of Cedric Stileman Davies dated 4 December 2001 read to me and I understand what the above activities involve.
SWORN by the said Deponent ) Dora Solomon
At Roebourne in the said State of )
Western Australia this 31st day of )
January 2002-05-23 )
[9] Whilst Mr Smith’s affidavit evidence speaks of his knowledge of the country the subject of Sherlock Station and “all around Sherlock Station”, having been raised there and having worked there in the late 1980s, it makes no mention and expresses no concern as to the past and present mining activities on or in the vicinity of that station or in the vicinity of the proposed licence evidenced by the current licences abutting and in the close vicinity of the proposed tenement area and elsewhere in the adjacent areas. Nor does it allege any interference by mining or other activity with the activities of hunting, fishing and collection of bush medicines and foods of which he speaks. He describes the country as “really good country” for such hunting and collection and that it is important as a place for people to come when they want to get out bush. However, he provides no evidence to how often or how many of the people engage there in those activities. His only direct reference to any such activity is that the managers of Sherlock Station “let us come here to hunt, fish and camp”, that he comes “out here” whenever he can, and that the last time he was here was “last year” when he brought his children with him. He gives no indication of when that was or how often he comes to the area. It is not suggested by him that any of the activities of which he speaks are only engaged in on the proposed licence area or its vicinity. In support of his statement that the proposed licence area is a place where the people can come when they want to “get out bush,” he states it is close to Roebourne and Wickham where most of the people live and that the people have a good relationship with the Sherlock Station managers. The undisputed evidence is that the proposed licence area is approximately 61 kilometres easterly of Roebourne. Mr Smith does not suggest that the station managers restrict access of the people to any part of the station for the conduct of any of their activities or that the proposed licence area is the only area good for hunting, fishing and collecting food and medicines. It is most improbable, in my opinion, that the people who live in Roebourne and Wickham would restrict or concentrate their hunting, fishing and collecting activities to the proposed licence area, to engage in which they would have to travel 60 odd kilometres, when they have access to the balance of Sherlock Station and, it seems from the reference to Croyden, Pyramid and Warrambie Stations in paragraph 8 of his affidavit, to those stations also, as well as the balance of their land claim area. It is not suggested that any of the objectors live on or in the vicinity of the proposed licence area. It is clear that the visit to the proposed licence area on 30 January 2002 was not one for the purpose of conducting any of these activities but to identify the land with Ms McGrath.
[10] It is of relevance that, to the extent that the said activities are carried out on the Sherlock pastoral lease, they are necessarily subject to some impact by the lease-holder’s activities, at the least with stock, the use and maintenance of minor roads and tracks, the use of vehicles and the inspection and maintenance of wells and fences (referred to in the State’s material) on the proposed licence area. The existence of the North Coast Highway running through the northern portion of the proposed licence area also must have some impact on such activities in that area.
[11] Mrs Solomon gives no evidence of community or social activities of the objectors on or in the vicinity of the proposed licence. She deposes that she lived and worked on “Jikurat-na” (Sherlock Station) as a young woman and that her husband told her of the country including water holes and special places like “talus (increase sites)”. Her only evidence of going specifically to the proposed licence area is of the visit on 30 January 2002 with others and Ms McGrath of the Pilbara Native Legal Service. Her affidavit reveals that the name “Jikurat-na” is that given to Sherlock Station. As to paragraph 12 of her affidavit (sworn 31 January) deposing to the trip to the station with her “little uncle”, it seems probable that the reference to “the other day” is a reference to the visit with Ms McGrath on 30 January 2002. Whether or not that is so, she gives no other evidence of either herself or others visiting the area of the proposed licence in recent times. Her evidence is directed to concern at the possible damage to trees, the habitat of the birds in the area, the water points for use by cattle and wildlife, the continuing availability of bush foods and medicines and the protection of and ensuring respect for places of significance.
[12.1] Ms Pamela McGrath, a research project officer with the Pilbara Native Title Service, a division of the Yamatji Land and Sea Council (YLSC), deposes to her qualifications as an anthropologist who has been undertaking anthropological and ethnographic research with Aboriginal people throughout the Pilbara since November 2000. She tells of her visit on 31 January 2002 with four members of the objector group “to the area in which the grantees tenement number E47/1021 is located”, that she drove through the tenement area and spent some time at a number of places “including sites of ethnographic and anthropological significance”. Like Mr Smith and Mrs Solomon she does not depose to how she identified the boundaries of the proposed licence area and her evidence is not clear as to whether the places at which she “spent some time” were necessarily on the proposed tenement area or only on “the area in which” it is located. She deposes to the practice of the YLSC to lodge objections in expedited procedure matters but to withdraw them if the grantee agrees to fund and facilitate an Aboriginal heritage survey for the tenement area in question. She gives hearsay evidence of the objectors’ concern as to the damage that might be done to the country and their belief that only an appropriate heritage survey can ensure that damage will not occur. She deposes to searching the register of sites in respect of the proposed licence area but her evidence does not suggest that the result of her search goes beyond the information referred to earlier herein. She speaks of the likelihood that the register of Aboriginal sites will not be an accurate record of all sites of significance and of what she claims are the only circumstances under which sites become registered. It is somewhat surprising that the information provided by traditional owners of land or their representatives is not said to be such a circumstance. Saving cases where the provisions of s 7(1)(b) of the AHA apply, s 15 of that Act requires “any person” (which expression does not exclude a person of Aboriginal decent) to report the existence of any place or thing of which he or she has knowledge and to which the Act applies or might normally be suspected to apply. Having regard to the affidavit evidence of Mr Smith and Mrs Solomon it would seem that s 7(1)(b) has no application to the sites identified by them. In the light of that evidence and the provisions of ss 10 and 15 of the AHA, it seems that the Minister has a duty to take steps to have the sites of which they have given evidence recorded and evaluated.
[12.2] Ms McGrath’s affidavit provides no evidence of community or social activities of the objectors and no direct evidence of any Aboriginal site on the proposed licence area beyond those already on the register. It provides only hearsay evidence of the ethnographic site not on the register referred to in paragraph 13 of her affidavit and that it is considered dangerous, and gives no evidence of its location within the proposed licence area. Paragraph 5 of her affidavit referred to above suggests that, save in respect of places and objects the subject of an Aboriginal heritage survey, the objectors are not, in reality, concerned with the interference referred to in s 237(a) of the Act or the disturbance referred to in s 237(c). As to an Aboriginal heritage survey, not all Aboriginal sites fall under the provisions of s 237(b) whether or not they are registered. That provision relates only to sites of particular significance, in the sense of “special or out of the ordinary significance”, in accordance with their traditions, to the holders of the relevant Native Title.
[13] It was decided in Smith v the West Australian (2001) 108 FCR 442 that the interference referred to in s 237(a) of the Native Title Act 1993 must be substantial in its impact on the relevant community or social activities, that, in determining whether an apprehended interference is “direct”, the Tribunal makes an evaluative judgement to determine whether “the Act” is likely to be a proximate cause of that interference, and that, in assessing the risk of interference, the Tribunal is entitled to have regard to other factors that so affect the communal or social activities that the impact of the proposed act is insubstantial, including restraints imposed on such activities by third parties and external regulation.
[14] Neither the evidence of Mr Smith, Mrs Solomon or Ms McGrath leads to a conclusion that the grant to the proposed tenement is likely to interfere directly with the community or social activities of the holders of Native Title. There is virtually no evidence of such activities on the relevant land. There is no suggestion of any interference therewith, past or present, arising out of the exploration or mining activities on adjacent and nearby land the subject of current mining tenements. Nor is any interference suggested in respect of community or social activities on such adjacent and nearby lands arising out of exploration or mining activities. It is an obvious fact that there is and has been current and past activity arising out of the pastoral lease station activities over at least much of the proposed licence area, evidenced by the nature of the lease, the location of roads, tracks and wells throughout the same and Mrs Solomon’s evidence of cattle on that area. That there is no significant activity on the proposed licence area is also supported by the evidence of Ms McGrath that the objection would in the normal course be withdrawn if the grantee were to agree to fund and facilitate an appropriate heritage survey. The evidence of Mr Cedric Stileman Davies, to which I later refer, provides no evidence in support of the objection based on s 237(a) of the Act. The evidence before the Tribunal is insufficient to lead to a conclusion that the grant of the proposed licence is likely to interfere directly with the activities referred to in s 237(a).
[15] It is of some significance that the directions made in this matter on the 14 September 2001 required the objectors to provide a statement of contentions including a statement of the nature and location of sites or areas of particular significance on or adjacent to the proposed licence area, identifying the particular significance of the same.
[16] Mr Smith conjectures (“there is a good chance”) that there are many tools and axes from the objectors ancestors throughout the proposed licence area. That this possibility is expressed as “a good chance” strongly suggests a limited knowledge on the part of Mr Smith of the area the subject of the proposed licence as does his comment in paragraph 6 of his affidavit that “there is the river and at least one permanent soak that I know of where they can drink. There is a soak at Wild Dog Creek”, he going on to state “there is no other water around there”. This last statement apparently is contradicted by Mrs Dora Solomon in her affidavit at paragraph 9 where she deposes that “there are a lot of water points in the area of the tenement”. The objector’s contentions allege both “Tdalungang” and the “Wanta talu” to be sites of particular significance as well as some of the other sites on the proposed licence area registered on the register of Aboriginal sites. However, there is no evidence from Mr Smith or Mrs Solomon, to support that contention in respect of such other sites. That a site is said to be of a particular site type does not of itself mean that it is likely to be of relevant particular significance. In paragraph 7 of his affidavit Mr Smith speaks of knowing of “some” rock engravings around Sherlock Station but, in the tenement area, of his own knowledge, only of engravings at Tdalungang, one of the sites on the register of Aboriginal sites. He does not purport to know of the other registered sites with rock engravings referred to earlier herein. The registration of a site means that its location is capable of identification and, like unregistered places and sites referred to in s 5 of the Aboriginal Heritage Act (AHA), it is entitled to the protection provided by that Act whether or not it is of relevant particular significance. In paragraph 9 of his affidavit Mr Smith speaks of a “Rain talu” (increase site), a “Law ground” and a place called a “Wanta talu”. He gives no location in respect of the first two such sites but, as to the “Wanta talu”, identifies its location as “near grid reference 50K.0571803.7678701 (AGD66)”, which, depending on the degree of nearness, sites it toward the southern and western boundaries of the proposed licence area. There is no other indication given by him, either on the map by which he identified the tenement area or in his affidavit, of the location of any of those sites. He does not depose to their existence and location on the tenement area as being of his own knowledge. Nor does he depose to any knowledge of any of the registered aboriginal sites on the proposed tenement area other than “Tdalungang”, despite the statement in paragraph 1 of his affidavit. However, having regard to his evidence as to the significance of “Tdalungang” and the “Wanta talu” and his uncontested standing as a Ngaluma elder able to speak for the country, I find that the “Wanta talu” of which he speaks exists in the area deposed to and that it and “Tdalungang” are of relevant particular significance within the meaning of s 237(b) of the Act.
[17] The objectors’ contentions assert that “Yirakutji talu” and “Kantungarra talu” are dreaming sites of particular significance, protected under the AHA, stating that they are referred to by Mr Smith in paragraph 7 and Mrs Solomon in paragraphs 5 and 7 of their respective affidavits. Mr Smith’s affidavit makes no reference to either such site or any site described as a “dreaming site” and that contention is not supported by his evidence. Mrs Solomon, in paragraph 5 of her affidavit, deposes to three talus for making rain, all said to be “near grid reference 50K.0570052.7685011 (AGD66)”, identifying only two, one being “Yirakutji talu” and the other “Kantungarra talu”. She does not refer to them as dreaming sites. The location of these sites is not otherwise indicated either on the map by which she identifies the proposed licence area or otherwise. Depending on nearness, the grid reference locates these two sites toward the northern and close to the eastern boundary of the proposed licence area. Mrs Solomon speaks of the dangers of throwing rocks from these talus into the river as that will cause the rain to commence and not stop. There is no river identified in any of the material before the Tribunal in or in the close vicinity of the tenement area to assist further in location identification. The maps produced in evidence show no Topographical features. The objectors’ contentions also allege some particulars as to the significance of those two named talus which are not supported by the evidence of Mrs Solomon save that I accept her evidence, though not so expressed, that they are of mythological and of relevant particular significance. The contentions also allege those same two talus to be of such significance that they are protected under the AHA. Of course all places referred to in section 5 of the AHA, registered or not and whether or not of relevant particular significance, have the protection of that Act. The difficulty in respect of unregistered sites is identifying their locations. Those talus are not mentioned as registered sites or at all in the material lodged with the Tribunal in respect of the register of Aboriginal sites and the significance attributed to them by those contentions is not matched by the evidence of either Mr Smith or Mrs Solomon. The contentions also assert some significances to the sites “Tdalungang”, “Bookingarra Creek”, “Benmore Wells Granites,” “Stones Well” and “Yodda City” which are not matched by the material provided in respect of the register of Aboriginal sites or the evidence of Mr Smith or Mrs Solomon. Neither Mrs Solomon, Mr Smith or Ms McGrath identify the talu site said, in paragraph 4 of Mrs Solomon’s affidavit, to have been visited on 30 January 2002. Nor does Mrs Solomon express knowledge of any of the sites on the proposed licence area registered under the AHA despite the statement in paragraph 1 of her affidavit. However, having regard to her evidence in respect thereof and her unchallenged standing as an “Injibandi” elder recognised also by the Ngaluma as having knowledge of the country, I find that the two talus “Yirakutji” and “Kantungarra” exist in the area deposed to and are of relevant particular significance.
[18.1] In paragraph 9 of his affidavit Mr Smith refers to a “Law ground” in the area of the proposed licence but gives no indication of its location or particular significance. In paragraph 11 of her affidavit Mrs Solomon refers to a law ground in “this area near the road going to the station, near Marrapull “(Sherlock River)”, which is not otherwise identified. Nor is its particular significance identified. There is nothing in the material provided to the Tribunal other than Mrs Solomon’s reference there to, to indicate that the Sherlock River traverses or is within the boundaries of the proposed licence.
[19] The question then arises as to whether the grant of the proposed licence is likely to interfere with relevant areas or sites (s 237(b) of the Act). Despite the assertion in their contentions, the objectors produce no evidence of any such site or place of relevant particular significance on the proposed licence area or in its near vicinity other than those of the Wanta Talu, Tdalungang, Yirakitji and Kantungarra. Having regard to the evidence of Mr Smith and Mrs Solomon as elders and in particular of their knowledge of the relevant land, that they were taught about the country and their responsibility to teach young people, one would expect them to have knowledge of places “of particular significance in accordance with their traditions to the holders of the Native Title.” That between them they express no knowledge of any of the registered sites other than “Tdalungang” leads to the conclusion that the remainder of the registered sites are not of relevant particular significance.
[20] I now refer to the sites (other than Tdalungang) which I have found are sites of relevant particular significance. Their respective locations have been only imprecisely indicated as being “near” to a point on the proposed licence area indicated by grid references. The degree of nearness is not specified and they might well be difficult to locate. There is no evidence from the grantees as to their intentions in the conduct of their exploration activities which would ensure their identification and protection from interference, with or without the assistance of the objectors. One can only conjecture as to the period that may elapse before they are precisely located and identified, whether or not on the Aboriginal sites register. Ms McGrath testifies that if the grantees agree to fund and facilitate an Aboriginal heritage survey of the proposed licence area the objection would, in the normal course, be withdrawn. S 237(b) is only concerned with sites of particular significance in the sense of special or out of the ordinary significance in accordance with their traditions to the holders of native title. That, it seems to me, does not encompass all sites, places and objects which might be the subject of an Aboriginal heritage survey. There is of course no legal obligation the grantee to fund any such survey. Nevertheless, as the location of those sites of relevant particular significance are only imprecisely identified they may not adequately or at all be identified by the grantee. It may also be some considerable period of time before they are specifically identified and located by the Minister pursuant to his obligation under s 10 of the Act or by any other agency. Consequently, it is impossible to conclude that the grant of the proposed licence under the expedited procedure provisions of 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 of the native title in relation to the land the subject of the proposed licence (s 237(b)).
[21] Having so found, it is not necessary that I refer to the affidavit of Mr Davies, a geologist and employee of the YLSC, as to his experience and opinions as to the mining activities which may be permitted and the effects thereof, were the proposed licence to be now granted or to make any finding on the evidence in respect of s 237(c) of the Act.
Determination
It is the determination of the Tribunal that the grant of exploration licence 47/1021 is not an Act which attracts the expedited procedure.
The Hon EM Franklyn QC
Deputy President
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