Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd
[2007] NNTTA 15
•1 March 2007
NATIONAL NATIVE TITLE TRIBUNAL
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, [2007] NNTTA 15 (1 March 2007)
Application No: WO04/89
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants – WC00/10 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Faustus Nominees Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Tribunal Member
Place: Perth
Date: 1 March 2007
Catchwords: Native title — future act — proposed grant of exploration licence — expedited procedure objection application — whether acts directly interfere with community or social activities — whether acts interfere with areas or sites of particular significance — whether there is a likelihood of major disturbance to land or waters — an act that attracts expedited procedure.
Legislation:Native Title Act 1993 (Cth), ss 29, 148, 237
Mining Act 1978, s 20, 63, 66(d)
Aboriginal Heritage Act 1972, ss 7(1)(b), 16, 17, 18, 62
Rights inWater and Irrigation Act 1914, s 5C
Cases:Kevin Peter Walley and Others on behalf of the Ngoonuru Wadjari People/Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL, [2002] NNTTA 24, (8 March 2002), DP Sumner
Moses Silver, Ishmael Andrews and Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd, [2002] NNTTA 18, (1 February 2002), Member Sosso
Silver & Ors v Northern Territory & Ors (2002) 169 FLR 1 (1 February 2002), Member Sosso
Champion on behalf of Central West Goldfields People/WA/Vosperton Resources Pty Ltd [2005] NNTTA 1, (1 February 2005), DP Sumner
Mark Lockyer & Ors/State of Western Australia/MineralogyPty Ltd [2006] NNTTA 133 (5 October 2006), Member Sosso
Smithv Western Australia (2001) 108 FCR 442, (19 January 2001), French J
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, [2006] NNTTA 65 (2 June 2006), Deputy President Sumner
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, [2004] NNTTA 31 (7 May 2004), Member O’Dea
Miriuwung Gajerrong Aboriginal Corporation/Western Australia/Seawood Holdings Pty Ltd [2006] NNTTA 74 (13 June 2006), DP Sumner
Ward v Western Australia (1996) 136 ALR 557 (9 May 1996), Carr J
Delores Cheinmora and Ors on behalf of the Ballanagra Native Title Claimants v Western Australia (2005) 196 FLR 250, (22 December 2005), Member O’Dea
Cheinmora v Striker (1996) 142 ALR 21, (19 December 1996), Carr J
Linda Champion on behalf of the Central West Goldfields People/WA/Vosperton Resources Pty Ltd (2005) 190 FLR 362, (1 February 2005), DP Sumner
Little v Western Australia [2001] FCA 1706, (6 December 2001), J Nicholson
Little & Ors v Oriole Resources Pty Ltd [2005] FCAFC 243, (5 December 2005), French J; Stone J; Siopis J
Paddy Neowarra on behalf of Wanjina/ Wnggurr/ Wilinggin/ Wilfred Byuneck & Ord on behalf on Uunguu/Western Australia/ Swan Cove Enterprises [2007] NNTTA 11, (31 January 2007), DP Sumner
Wobby Parker & Ors on behalf of Martu Idja Bunyjma People/Western Australia/Pilbara Iron Ore Pty Ltd [2006] NNTTA 148 (7 November 2006), Member O’Dea
Miriuwung Gajerrong No 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/WesternAustralia/ Seawood Holdings [2006] NNTTA 74, (13 June 2006) DP Sumner
Wilfred Hicks Woong-goo-tt-oo people/Western Australia/ Geotech International [2006] NNTTA 63, (22 May 2006), DP Sumner
Banjo Wurrunmurra & Ors on behalf of Bunuba; Butcher Cherel & Ors on behalf of the Goondiyandi Native Title Claimants/Western Australia/ Wasse Stewart Askins [2005] NNTTA 90, (2 December 2005), DP Sumner
Dann v Western Australia (1997) 74 FCR 391, (8 May 1997), Wilcox, Tamberlin and Nicholson JJ
Representative of the
native title party: Mr Brendan Renkin, Kimberley Land Council
Representative of the
grantee party: Mr Peter Thomas, Smyth and Thomas
Representatives of the
Government party: Mr Greg Abbott, Department of Industry and Resources
Mr Rod Wahl, State Solicitor’s Office
REASONS FOR DETERMINATION
Background
On 25 February 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licences E80/3264 E80/3266 to Faustus Nominees Pty Ltd (‘the grantee party’) and included in the notice a statement that the Government party considered that the grants attracted the expedited procedure.
On 17 June 2004, Butcher Cherel on behalf of the Gooniyandi native title claimants — native title determination application WC00/10 registered on 23 April 2001 (‘the native title party’) — lodged an expedited procedure objection application with the Tribunal in relation to the proposed licences E80/3264 E80/3266.
The expedited procedure objection application was accepted by the Tribunal on 2 July 2004.
On 21 September 2005 the grantee party withdrew the mining tenement application for exploration licence E80/3264. That part of the objection application the subject of this determination dealing with tenement E80/3264 was subsequently dismissed by the Tribunal on 6 December 2005 pursuant to s 148(a) of the Act. Exploration licence E80/3266 (‘the proposed licence’) is thus the sole tenement the subject of this determination.
The proposed licence comprises an area of some 12.99 square kilometres, located 96 kilometres Westerly of Halls Creek in the Shire of Halls Creek, and is entirely overlapped by the registered claim of the native title party.
The objection sets out at paragraph 7 the reasons why the native title party believes the grant of the proposed licences is not an act attracting the expedited procedure:
‘This objection application statement has been limited because the area of the proposed act (E80/3264 & E80/3266) cannot be identified with sufficient particularity by reading the future act notice. The maps provided with the notice do not contain a key, include illegible markings and lack sufficient topographic details to enable the objector to clearly relate the map to the ground. The maps are very poor and do not allow the objectors to really know exactly what country is being talked about except for its general location. The objectors do not believe the notice meets the requirements of the Native Title Act.
The objectors have connections to all the country identified on the map which includes E80/3264 and E80/3266. These connections include those maintained through hunting game, collecting bush tucker and medicines, as well as visiting and looking after sites. Exploration activity will scare away bush animals especially when people are drilling and using bulldozers. Drilling activity and costeaning will also destroy plants the objectors use for bush tucker and medicines and may also destroy sites. The grant of E80/3264 and E80/3266 will significantly impact on the objecting community’s conduct and enjoyment of these activities and the objectors’ spiritual connection with the land.
Under the objectors customary law and beliefs people who are not traditional owners need to ask permission to go out on country affected by E80/3264 and E80/3266. Permission and information about this country is held be [sic] elders many of whom cannot read, write or interpret maps. The elders can only properly provide permission or further information when they know the intentions of the party and the exact area that will be affected. The grant of E80/3264 and E80/3266 without speaking to elders is against the customary law and beliefs of the objectors.
There are artefact scatters in the area of E80/3264 and E80/3266 left by the objectors’ ancestors. These artefacts are not recorded sites and can only be found by close examination of the area in question. These sites are particularly significant because they record the historic activities and movements of the objectors’ ancestors. The sites are not easily identifiable and require specialist expertise to identify them. The action of driving across country to get to an area of proposed exploration activity as well as the proposed exploration activity itself is likely to destroy those artefact scatters unless they are properly identified, recorded and protected.
The objector believes that the grant of E80/3264 and E80/3266 over the area of ground applied for will create rights, the exercise of which will involve major disturbance to the land. This includes the right to drill holes and excavate 1000 tonnes of material and other rights as defined in the WA Mining Act 1978. The objectors believe the extraction of 1000 tonnes of material anywhere within E80/3264 and E80/3266 create [sic] a major disturbance to the land. Specifically the land in question is as delineated in the map provided from the State in its original notice.’
At paragraph 8 of the objection, the native title party set out the type of evidence it intended to adduce in support of its objection, including:
a) historical affidavit and oral evidence relevant to section 237 (a) and (b) of the Act;
b) anthropological affidavit and oral evidence relevant to section 237 (a) and (b) of the Act;
c) genealogical affidavit and oral evidence relevant to section 237 (a) and (b) of the Act;
d) linguistic affidavit and oral evidence relevant to section 237 (a) and (b) of the Act;
e) environmental affidavit and oral evidence relevant to section 237 (a) and (b) of the Act.
The native title party requested that oral evidence be given on country.
Directions and terms of inquiry
The Tribunal made directions on 2 July 2004 for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. These directions provided for compliance by the Government party by 11 October 2004, the native title party by 18 October 2004 and the grantee party by 25 October 2004.
At an adjourned Preliminary Conference on 24 August 2004, the grantee party requested the directions be vacated as the proposed licence was under joint venture discussions. At this Conference the grantee and native title parties also agreed that a negotiated outcome was possible for these matters but the drafting and execution of an agreement was some months away. On 3 September 2004 Deputy President Sumner approved the request to vacate directions.
A number of Adjourned Preliminary Conferences were held between 21 September 2004 and 19 January 2005. The grantee party and native title party indicated during these conferences that positive negotiations were occurring and that an agreement between the parties was possible but could take some time, given the joint venture discussions in which the grantee party was engaged at the time. At an adjourned preliminary conference on 19 January 2005 the convenor advised the native title party and grantee party that there were time constraints in this matter and that it was taking too long to resolve. The representative of the grantee party at this time advised that resolution of the matter was imminent. The convenor adjourned to matter to 6 April 2005.
Between 6 April 2005 and 5 April 2006 a number of status conferences were convened, at which the grantee and native title parties continued to express their intention that agreement could be reached, subject to the resolution of some ‘sticking points’.
On 19 April 2006 the Tribunal proposed that parties enter mediation pursuant to s 150 of the Act. On 14 June 2006 all parties agreed to mediation.
On 3 July 2006 the Tribunal reinstated directions, and on 12 July 2006 the Tribunal advised parties that directions in this matter were reinstated. I was appointed to hear this matter on 15 August 2006.
Submissions on behalf of the Government party were received by the Tribunal on 31 August 2006. Submissions on behalf of the native title party were received by the Tribunal on 6 October 2006, and submissions on behalf of the grantee party were received by the Tribunal on 13 November 2006. Despite the earlier request by the native title party that evidence be given orally on country, the Tribunal received verbal advice on 14 November 2006 that parties agreed to a determination ‘on the papers’. Also on 14 November the native title party sought and was granted leave to file contentions in response to the grantee’s contentions and additional affidavit material by 21 November 2006. The grantee was given leave to file further contentions in response by 28 November 2006. On 1 December 2006, the grantee party advised the Tribunal that it would be not filing any additional responsive material. The native title party did not raise the issue referred to in its application to the effect that the advertised maps did not meet the requirements of the Native Title Act.
Legal issues
In Kevin Peter Walley and Others on behalf of the Ngoonuru Wadjari People/Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Giralia Resources NL, [2002] NNTTA 24, Deputy President Sumner (8 March 2002) (WO01/179 and WO01/180), considered the applicable legal principles in relation to s 237 (at [7-23]). These matters have also been discussed by Member Sosso in Moses Silver, Ishmael Andrews and Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd, [2002] NNTTA 18, Mr John Sosso (1 February 2002). I accept the articulation of the relevant legal principles in those matters for the purposes of this determination.
Section 237 of the Act sets out that for an act to qualify as being an act attracting the expedited procedure it:
a) is not likely to interfere directly with the carrying on of the community or social activities of the native title party;
b) is not likely to interfere with areas or sites of particular significance, in accordance with the traditions of the native title party; and
c) is not likely to involve major disturbances to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
Material provided by the State
The Government party contends that the proposed licence will not give rise to any of the issues raised by s 237 (a), (b) and (c) of the Act. There are no sites registered on the sites Register of the Department of Indigenous Affairs and no Aboriginal communities within or in the vicinity of the proposed licence. The proposed licence is situated on an indigenous-owned pastoral lease and vacant Crown land.
The Government party refers to the provisions of s 20(5) of the Mining Act 1978 in relation to this area and to ss 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (‘the AHA’), which go to protecting Aboriginal areas or sites. Attention is also drawn to the standard conditions which will apply to the grant as set out in the schedule attached to its contentions and to the conditions which are imposed on the grant by s 63 of the Mining Act 1978. It states that the grant will include an endorsement drawing the grantee party’s attention to the provisions of the AHA. The Government party’s documentary material also includes the conditions and schedule of endorsements to be imposed on the proposed prospecting licences pursuant to the Mining Act. The Government party also makes reference to the enhanced effectiveness of its regulatory regime due to the substantially increased penalties for breaches of the AHA and its revised Guidelines for Consultation with Indigenous Peoples by Mineral Explorers (see discussion by DP Sumner in Champion on behalf of central West Goldfields People/WA/Vosperton Resources Pty Ltd [2005] NNTTA 1, 1 February 2005 at 71).
Material provided by the native title party
The native title party submitted five affidavits, two sworn by Mr Matt Dawson and Mr Mervyn Street and one sworn by Ms Celia Jane Tucker.
Affidavit of Matt Dawson, sworn 4 October 2006
‘I, Matt Dawson, a Stockman of Pullout Springs on Louisa Downs Station between Halls Creek and Fitzroy Crossing, in the State of Western Australia affirm:
1. My European name is Matt Dawson and my Aboriginal name is Pagey, I worked all my life as a stockman.
2. I was born on the 1st of January, nineteen thirty-six on Margaret River Station.
3. I’m a station stockman living two kilometres out of Yiyili where I have a block of land.
4. I’m a Gooniyandi and Lunga man. Gooniyandi on my father’s side, and Lunga on my mother’s.
5. I’m a senior Gooniyandi and Lunga Law man. I am one of the senior people for the Gooniyandi Combined Native Title Determination Application (WAG6008/00).
6. I have been shown a map of the application area, the map I was shown is attached to this affidavit and marked “A”. I know the area very well where Faustus Nominees Pty Ltd, (“Grantee”) have applied for Exploration Licence Number E80/3266. (“Tenement”)
7. The country which the tenement covers (Tenement Area”) falls within Gooniyandi Country.
8. Under our Law I have authority to speak for Gooniyandi country.
9. I was taught Aboriginal Law in the area covered by the mining tenement in Goat Paddock by my father and granddad. They were both born in the area.
10. My grand dad was born a bit further up in Pelinga, the river name there is Doorroorroo, the Kardiya (non aboriginal person) name for that river is O’Donnell River, that runs through the Tenement Area.
11. My grand dad’s European name was Jacky, his Aboriginal name was Miliang.
12. The Tenement is part of my grand dad’s area, and it has been used by my family before it was a station by my family.
13. My grand dad had three boys and two girls, and he worked on that station, and there was only one kardiya. The kardiya depended on us to build up that station.
14. My skin name, Joongoorra connects me to the Tenement Area from my grand dad. This is the same name as the snake, my ancestor, that lives in the waterhole in the Tenement Area.
15. My father’s kardiya name was Matt Dawson, his Aboriginal name was, Gagolgi.
16. My father was born in Gooniyandi country, in this side of Goat Paddock. The traditional name for the soak in Goat’s Paddock is Jilgara. My father is Gooniyandi.
17. My father became a stockman when white men came, and the white man learned Aboriginal people are good working people, make Aboriginal people stockman.
18. My mother’s side is a bit further to the north east. I’m Lunga people too. Gija and Lunga are two languages on that north-east side area. From my mother I am Lunga, and my skin name is Joongoorra, and my son, young Terry is Jangardi.
19. I’m related to the Tenement through my father. This Goat Paddock area is my father’s place.
20. My son, Terry, now works on Louisa Downs Station, mustering, fencing bores, riding on horse back and all that. Under our Law, I will pass this country on to my son, like my father did to me.
21. We get the story for this country from the old people, and under our Law if we get the story we gotta look after the country. From that story we know how our dreaming ancestors created that country and taught us the Law. The old people passed down that country name, and the name for the places, animals and those rivers. From the Law passed on from our dreaming ancestors we know how to look after that country and make sure it does not get damaged. That is what the old people told us, if they pass on, we gotta keep going to this area, and follow the Law, and we gotta pass that story on to our children.
Community or social activities
22. When I come to be an expert worker, I went out to the Tenement Area and other stations. I got to know Goat Paddock, through my dad. He taught me about this area.
23. My father took my [sic] out to the Tenement Area many times, because he was the owner of the land under our Law. He taught me and my brothers Munro and Bruce, the Law and word that he got from the old people, when we visited places in the Tenement Area.
24. I remember my father taking me there to Goat Paddock, as a small boy, the same age as all these grandkids of mine are now. My father would always take us and show us how to work or, tell us story for his country, for his father’s country. We would walk in from the north eastern side, from the other road on top of the cliff. We came that way from a place called Dalingmun, through the Bindua Hill, gorge I mean.
25. The old people and my father would sit down and tell us the story of what the country felt and meant to them. I would like to hear the stories from old people all the time.
26. Through out my life I have always thought about those times and those stories, and been guided by what I learnt from those times.
27. My dad bring me and my two sisters and five brothers lots of times to this place Goat Paddock when mum was still alive. We would go there every year nearly, after work was finished on the station, we would go there and hunt, fish, practice Law and all that sort of thing.
28. I worked on Louisa Station and visited the Tenement Area lots of times. I’ve been to this country, the Tenement Area, since I was a young man.
29. When my brothers were still working on Margaret River Station, we came here as a family during walk about time or holiday time.
30. We used to go up through the Tenement Area to get bamba rock from the gorge, just outside the Tenement Area on the north east, telingmun they call it. Those Mueller Ranges they go right up to the top.
31. We still use this place Goat Paddock these days, we always come and have dinner here and then camp at that old yard, marked “Number Seven” on the map. We come out here several time a year, maybe once a month. I bring my kids, and grandkids, and others from Yiyili and other places.
32. I teach my family about the stories and Law for that place. I’ve spoken to all that family of mine about the Tenement Area, my dreaming starts right from Black Fella Creek, Black Fellow Springs, Black Fellow Creek Yards which are approximately 30 kilometres northeast of the Tenement. It follows the Mueller Ranges right down to Walu, the junction of the Margaret and O’Donnell rivers.
33. When we come out to the Tenement Area, we go hunting bush meat.
34. The waterhole in the Tenement Area is the main waterhole for the area. During the dry season because all the animals go there for that spring, it’s a good hunting spot.
35. We know where to get bush tucker; bush meat, jumbio [goanna] or might be barlanyi [snake] or guamuddera [bush turkey], garnanganyja [emu] or wanyjirri [river kangaroo].
36. My son, Terry saw a garnanganyja track last time we went out there.
37. The second last time we visited the Tenement Area we caught a goanna and kangaroo in there, and we camped down the river, near there where we catch fish.
38. We also use gooroo [river mangrove] that grows near that spring to poison the fish.
39. We peel the bark of the tree, chuck it in the water and get a lot of fish. They go mad all round you, they can’t get a place to go anywhere. We catch a lot of big ones; balga [barramundi] big ruj [catfish] and bream.
40. I have seen on the map provided by the Grantee indicating that the Grantee will come and take water from the waterhole. I am concerned that if the Grantee does this, especially at the wrong time of the year, then there will not be enough water left, and this will mean that we can no longer go fishing in this area.
41. If the Grantee takes the water this will probably make the mangroves die off and we won’t be able to come to this area to get the bark for fishing. Also we won’t be able to use the bark for fishing in the Tenement Area.
42. I am concerned that if the water is all gone, or only a little is left the animals won’t come to this area any more and this will mean we won’t be able to hunt for bush tucker in these areas.
43. I am concerned that if the Grantee comes onto this country and disturbs it with big trucks and drilling rigs it will scare away all the animals and might kill off the bush tucker, and we will no longer be able to hunt or go out and camp in that area. I am also concerned that the Grantee might want to fence off an area, and prevent us from going to places in the Tenement Area.
44. If these things happen I will no be able to bring out my children, and the other kids to these areas. I won’t be able to teach them about hunting, and where to collect bush tucker, about the trees in that area, and I won’t be able to teach them the stories about those places in the Tenement Area, like the old people told me to do under our Law.
Sites of particular significance
45. There are places within the Tenement Area, and some places just outside it, which are very important to us Gooniyandi mob.
46. Where we camp at Nyaligi, just southeast of Goat Paddock, is where that flying fox, they call him Bigermee, during the Dreamtime, he speared that crocodile with a spear. The flying fox was the best dancer and crocodile was jealous. All the flying fox family talked to Bigermee, he had to go back and get his spear from spearing that man, the crocodile. In the Dreamtime, Bigermee he was a man you know. You can go up to the south west, to see that place where the crocodile got speared.
47. There is also the story about that crocodile and that two turtle, and that ganinyi (rock hole) where they put that crocodile, near that place marked on the map UTAH 1 and UTAH 2. That’s the main place where you find that deep water there. That crocodile didn’t get killed by Bigermee, he got wounded. The two turtle then bring crocodile up along the Margaret River, they bin looking for big water for that crocodile. They follow this Mueller Range all the way, right back to that place marked on the map, Goat Paddock, “No. 7 Yard”. The Aboriginal name is, Jilgara. They continued on, and the two turtle try with a stick to find a deep place, a deep water hole. That place they found was that water hole called ganinyi near the cliff wall.
48. That Bigermee story is the story that we passed on to all these Yiyili school kids. We also taught those kids that story for that crocodile and that two turtle. Those kids learn those stories and make a dance for those stories.
49. Jilgara, which is inside the Tenement Area is also a special site because there is a Dreamtime story in there, and my ancestral snake is in that spring now. The snake came from the river and went up to that spring, tread down the water hole to that spring. The snake, he bin holding water, the main water. The snake is called, Joongoorra, his name. This is a]so my skin name, so he is my ancestor. Another name for that snake is Galaroo. Under our Law, I have to look after that snake.
50. When the summer time real bad, bad weather, we use to go and dig in that spring now and talk to that snake if we want rain, and that sort of thing. He can always make rain that snake.
51. We still talk to that snake. When we visit that place, I told all the kids not to make too much noise in there so they wouldn’t disturb that snake. Every time you come out here you have to have water put on your head, because of the Dreaming time. That’s our culture you know, so the country recognises you. When you’re a stranger to country, some time you get headache, a bit sick, because you don’t do the right thing.
52. There are other Dreaming stories in that place. Another story in there is about a brolga, you see in the lagoon; the blue one with the wet head. That place called Moowarra is a dancing area for the goorranda [brolga] and minaji [porcupine].
53. A Dreamtime story where that mob bin dancing in that area, a bit further up near Walus waterhole in the Mueller Range, the same hill in the tenement, My family are the Traditional Owners of Goat Paddock, and my father and my granddad told me story for that brolga and porcupine. I hear interesting story from old people all the time, that’s how I come to know about my grand dad’s country.
54. There are other main camping areas and Dreaming tracks a bit further up from Goat Paddock. Back towards Gordon Downs there is another camping area and special place for the Dreaming Kangaroo from Gija and Lunga side. One kangaroo has a short tail another one has a long tail, and there is a bird called Jingaroo. He use to go in with a stick, like that on the ground, and get-a water. That’s where all the springs come from, from that Dreamtime story from Gija and Lunga side.
55. My father introduced me to that snake at Joongoorra in that spring at Goat Paddock. Just like when we there we introduce others to that place, pour them with the water you know. We do that because that’s the Law. Like talk to that snake or something. With this thing, once you got water on your head, that smell which is your family spirit goes to that snake. He knows you’re a visitor and you can visit the country. If you don’t do this, there will be a big rain. This rain is because it’s like you being cheeky by not say hello. The snake gets angry because you’re trespassing. This will be a problem for the Grantee, and the big rain will cause problems for everyone. They got to be careful you know, they got to get permission from Traditional Owners to go there, around that Joongoorra at Goat Paddock.
56. If kardiya come to these places, to any named place, unless they speak to me or the other Traditional Owners, they won’t know where those special places are. If they drive a motorcar, or do some digging, they might destroy some of those special places. They should talk to us first, so they don’t go to places where our Law says they can’t go. If they disturb those places under our Law this can cause big trouble for us.
57. Any new people who come along to any named place like that that must do something like introduce themselves to the snake or something like that. The new people must be introduced by the people who know the special places and the stories. If they don’t, just like with the snake, there can be big problems, like big rain. I am worried that if these new people go to these places they might also get sick or die.
58. There are also Law ceremonies in that place called Jilgara [the soak in Goat Paddock]. In this place we teach young fellas how to hunt for bush turkey, kangaroo, emu or goanna. Get everybody involved. Under a big shady tree, get every body involved in ceremony.
59. Under our Law young man not allowed to have bush meat when their young. We get old people involved to teach young people how to hunt for bush tucker meat. When a young fella full grown man of seventeen, or eighteen, nineteen, they get involved in that part. They are then taught by the older men. That thing, women not allowed.
60. If the Grantee come to this place and drive around or drill big hole, might disturb or wreck that Law place, so we can’t teach our young fellas about our Law.
Major disturbance to land or waters
61. This Moowarra Range here, kardiya call it “Mueller Range”, on the map. Where they look for that mineral is called “Number 7, Goat Yard” they bin callin it on the map. A long time ago, one old fella bin livin there. His name was William Cox. There use to be a big mob of goats, but not a problem. This was a long time ago when William Cox was there in Louisa Downs Station.
62. If that Grantee go out to that area and take water that will be a big impact on that area. If the Grantee drill big hole in that place, maybe the water from underground will go too. No more fish, or hunting out there for me and my family.
63. If the Grantee is not introduced properly at those places, or disturb one of the special places under our Law, then that place where we camp and hunt might be big change. I won’t be able to go hunting there any more, and I wont be able to take the kids out there to tell them stories and teach them the Law in those places.
64. I am aware of the types of things the Grantee can do under the Mining Act in the Tenement Area if the Exploration Licence is granted.
65. Kardiya companies need to recognise traditional people have the Law for their traditional area. We belong to that area and I’m the main person under our Law for that place. People need to ask me before they go into that area; me, young Terry or Mervyn Street.
66. If the Grantee go there, they might make a big fence around there, and we can’t go in. If people go in there without asking, they are acting out of place. If they take that mineral out of the ground, what we get? What Aboriginal people get?
67. If they bugger that Dreamtime story; that spring mightn’t be lasting if they drill through there.
68. The mining people are not talking straight to the Traditional Owners and that’s not fair. They make enemy of Aboriginal people by destroying the Dreaming.’
Affidavit of Matt Dawson, sworn 16 November 2006
‘I, Matt Dawson, a Stockman of Pullout Springs on Louisa Downs Station between Halls Creek and Fitzroy Crossing, in the State of Western Australia affirm:
1. I refer to the affidavit affirmed by me on 4 October, 2006 (‘my original affidavit’) and filed with this Tribunal, which is true and correct.
2. I have again been shown the map of the exploration licence application area (E80/3266) that was attached to my original affidavit.
3. In or about September, 2006 I visited the exploration licence application area.
4. The two places referred to paragraph 47 of my original affidavit, jilgara and ganinyi are both within the exploration licence application area.’
Affidavit of Mervyn Street, sworn 4 October 2006
‘I, Mervyn Street, Artist and Senior Cultural Advisor, of Pullout Springs on Louisa Downs Station between Halls Creek and Fitzroy Crossing, in the State of Western Australia affirm:
1. My European name is Mervyn Street. I had no second name, so they gave me my name. People know that kardiya have a second name, so mine was given to me by a missionary who used to be in Fitzroy, me and David got our second name, ‘Street’.
2. My skin name is Joowoorroo, or sub-section identity. Joowoorroo was given to me, my granny gave me the name from an old brother passed on to me. Under our Law, what happens with people is that the name must be that of another bloke that passed away. The name will go to another boys or girls that come up.
3. My Aboriginal name is Jowddji. I have name from that other old boy but I can not say his name because he’s finished.
4. I was born lst of July 1950, in Louisa Downs. That’s my great, grand mother’s country and my grand mother’s buried there, as is my great grandfather. He is buried in that place called Galngoorra, at Louisa Downs there.
5. I was born on Louisa Downs Station, under a boomerang tree, right underneath it, near the old Aboriginal Reserve. I was born in the bush, not in the hospital. That tree grew then died off. But then another tree come up there, a new tree got up there and grow.
6. I am one of the senior people for the Gooniyandi Combined Native Title Determination Application (WAG 6008/00).
7. Under our Law I have authority to speak for Gooniyandi country.
8. I have been shown a map of the exploration licence area, the map I was shown is attached to this affidavit and marked “A”. I know the area very well where Faustus Nominees Pty Ltd, “Grantee” have applied for Exploration Licence Number E80/3266 (“Tenement Area). I have visited this area many times.
9. My mother taught me that my Dreaming travels up the river and finishes in that place in the Tenement Area. I teach this Dreaming to my family, and we continue to visit and use this area.
Community or social activities
10. The Tenement Area falls within Gooniyandi couniry.
11. Gooniyandi country is where Gooniyandi language was put ngamoo-noonggoo, in the Dreamtime.
12. I live with my family and other Gooniyandi people at Pullout Springs which is about forty-five kilometres north, from the Tenement Area.
13. In language my mum is like a Nyawajarri, skin name. My Granny wabala. Granny’s, granny, their great, great grand mother, you know like great, great mothers and now grandmothers, and grandfathers, have past on that story for that Tenement Area, Goat Paddock, and given it to my mum. She passed it onto me.
14. I was told this story because we was living in that area and camping in that area, a long time ago when I was a child.
15. In those times some people had a motor car round this way. We spent time holidaying in the Tenement Area. My people, my granny and my grandpa lived in the Tenement Area during the holiday or break time, before we had to go back to work on the station again. My old people were living there before me.
16. The Tenement Area has a lot of good places, good fishing out there, you can live in that country, like my people used to. There are also a lot of story to tell for that place as well.
17. I never been to school but my school was from my old people, they teach me how to go hunting fish, learning from going hunting and looking for bush tucker and learning about country name, all this country name and stories.
18. We go there and visit the Tenement Area, we go to the spring there, and all around in there.
19. That spring right there is called Jilgara, where the mapped annexured and marked “A” is marked and the words “potential water source” inside the tenement.
20. There’s like a hill right round that spring. In the no water time, like a hot season, this is the only water, the last water, the spring in there. All the other places dry out, but the spring keeps holding that water right through the dry.
21. The spring carries a little fish, like a boonda (perch), it is a little creek, but there is bush tucker like a gooanggi (bush fig) and yimarli (black plum) to eat. All those plants grow there. There is also some other bush tucker round the creek place like a maroorra (native tree with orange fruit).
22. There is also good shade there, like an umbrella. There are a lot of animals, they come to eat bush tucker out there, and to drink water. There are kangaroos, emus and other birds. This is a good place to hunt.
23. Where they got that spring, jilgara, Goat Paddock, there is also that gooroo (fresh water mangrove) like live in the side of the sea. There is also maroorra tree (Leichardt tree) out there. That place has all the good plants, for bush tucker, it makes you feel really good when you walk around there, and you can collect the bush tucker like the old people taught me, and like I have been teaching the young kids.
24. When we go out in that area and it’s dry and no water round there, we know where to find water, we go there, to Goat Paddock, the spring. We don’t want anyone messing around with that place.
25. I go out to the Tenement Area with lots of other Gooniyandi people, and kids and everybody we use that place. We spend a couple of days so we can fish, hunt and have a look-around. It is a very big place. When you look at in the map, its only little, but when you get there, it takes you all day. Last year we went round there, we all love to go there.
26. We often go camping at two river join, where Margaret River and O’Donnell River join, just outside the Tenement Area. It is a good camping place, we drive out there, spend more time there, we had dinner there.
27. We also go out to other places in the Tenement Area, and look for bush tucker. We cut trees for witcherty grub. We go hunting and take kids out there for look-round.
28. Before learning about country, I learnt from my granny and my mother taking me, like had good parents, every time they have a lot of patience, they always stop and .give me all the name you know for all this area down this river (Margaret and O’Donnell Rivers). They showed me how to hunt and look for right food, provide medicine and live on the river, hunting in the river. They taught me how to go out in the land, on top of the land, all round the bush you, looking for wawanyi (goanna), bush tucker. They taught me what season to go hunt for the right food and right bush feed.
29. When they took me to some places around the Tenement Area they passed on a lot of stories from there. They taught me something from ngarri doogidgilari or moving rock. That rock is just like a gate or a hand, when the water rises, the rock is like a gate and it brings all the other big fish back to main water hole.
30. They also taught me that around the corner from that rock there is a place called jirloo where a little snake lives in a spring on the left side of the Margaret River near what the kardiya call “Me No Savvy Yard”. On the right side there is a story about a brolga, they call him gorranda. When a snake ran through that place the brolga was frightened and spilt water from his beak making a gorge. That place is named jarrgamigiiami which means ‘run away foot’. There is a painting of a crocodile in that gorge. We often camp at that gorge.
31. From there heading back towards the Tenement Area, is a place called junda, that’s a hill where two Dreamtime brolgas collected bush onion. Nearby is minarroorroo, where the old people camped. Further on, just west of the bottom left of the Tenement Area is ngoolamarra, and that’s where the story come from about the two turtles and one crocodile and the bat.
32. When I was young I went out to this country around the Tenement Area all the time with my mother and granny. When I was listening to the old people, I would listen to all the things they talked about. These things, and what happened is really important to me.
33. When I was bigger, my mother took me up to the Tenement Area, later on when we had that culture trip. We went down to Goat Paddock. We had two old lathes there, my mum and Topsy’s mum, Renee, a senior Gooniyandi woman. Topsy Chestnut, now a senior Gooniyandi woman, was there too.
34. The story about that place was so important to me I told mum to sing, sing the song for me, about that crocodile and bat. I told my mum to put it on the video so I can have it all the time. We had big mob on that trip but the other mob went along, they keep going there to another place. But we had very important place to sit down and get the real story in Goat Paddock.
35. When we arrived at the spring at Goat’s Paddock we had dinner and mum told me the very last story. I still have that video. This was the first time I heard the end of that story, and my mum sang me into this country.
36. That story my mother sung was the same story was given to me when I was little. My mother grew me up with that story, and she made sure that I knew that song so that I could sing it too. It’s true that story. My mother left something of that story for me. We stayed there and slept. We fished for the little boonda (perch).
37. That place where my mother told me the story is called jilgara, kardiya (non aboriginal people) call it Goats Paddock.
38. And that’s the story that passed on to me from old people. They were telling me to keep going to this area any time when you get older, or you become a family man, you can go to this place and give your family the stories. They told me, you can give them the stories about country and all the Dreaming sites all along this river.
39. When I’m at the school I tell the kids the story of this place, and we take kids out to the Tenement Area and the place where the story is when we can.
40. I’ve got my nephew here, and my two nieces, my sister and son there and, my grandson. They’re all part of this country, so I pass story to these kids about this country along the Margaret and O’Donnell rivers.
41. The bat and crocodile story is very important for the kids. My grandson, John, he got that story from me and wrote the words for the Crocfest in Halls Creek last week. Other kids in my family, painted the backdrop for the performance and danced the song. Howard, my other grandson, was dancing.
42. Under our Law I must pass on these stories, and teach the young people out there on the country what the stories are about.
43. The Tenement Area is very special country and I am concerned that if the Grantee comes out on to this country without talking to us first, and maybe takes some water, drill them deep hole, damages the bush tucker and scares away the animals, I won’t be able to go out to the Tenement Area any more. I am worried that I won’t be able to pass on the stories to the kids, like my grand-mother and mother did to me.
44. If we can’t take kids out here, I’ll be very upset because we’ll be loosing our culture. At the moment, this is a place where we can come to. Kids need to come out and see things. This place we tell stories to our next generation and that would have gone, kids need to come out and see this place. And this has a strong Law this Lunga country. This place gotta strong culture. Culture side and looking at the station side, because cattle live in that valley there, people go and muster in that country there. Two things we’re worried about.
45. This water that is marked by the Grantee on Annexure A as “potential water source”, comes from that Jilgara, what kardiya call, a spring. That water is very important, all year round even in the summer when there’s no water round, this water is still coming out of the ground.
46. I am very concerned that if the Grantee drill around here, it will take water out from here, and there will be big problems with the water. If they make a big hole in the ground, water might change, and all water might go. All this thing, bush tucker and plants will get dead and gone. All these trees with good shade and fruit will be dead. What they gonna do, drill around here and take, they will dry this up, and take all the fruit trees, fig trees, all dry. We will lose everything, drinking water for the people, for the birds and animals. No more fishing or hunting.
47. I think this would be very bad, if we lost that place where we go fishing, it would be very hard to go in there. We look at that place as a very important for people to use. I am worried that if anything like this happens we won’t be able to go back out to that area for a long time.
Sites of particular significance
48. I have read the affidavit of Mr Matt Dawson, and I acknowledge and agree that the place the old people called Jilgara is Man Dawson’s place. The kardiya name for that place is Goat’s Paddock. I agree that, as Mr Dawson states, his Dreaming story comes from the north east side of the Tenement.
49. My Dreamtime story, for that area, and into the Tenement Area, comes from the other side, from the south east side of the Tenement.
50. Mr Stanley Holloway and Mr Butcher Cheryl, who are Named Applicants for the Gooniyandi Native Title Claim, also know that area around where my Dreamtime story follows.
51. In this place there are burial sites. Both Gija and Gooniyandi people used to live in and around the Tenement Area, all along the rivers. Those old people were shot and poisoned, and killed. There is a massive grave from a long time ago. I can’t talk about where those burial sites are. Matt Dawson got family and I got family here. This area is in Gooniyandi country.
52. There is a story along the Margaret River, about two animals, one owl that lives in the log, and the other is a water rat. They were told by the stalk to plant that gooroo and marroorra tree up the doorrooroo (O’Donnell River) towards Goat Paddock. The story runs all along the river, along the O’Donnell River in the Tenement Area, past where the two rivers join, and down south along the Margaret River towards Ylyili. Those gooroo and marroorra trees finish right at nyaligi, just to the south east of the Tenement Area. That place is very special to me, and under our Law it is my job to look after it and teach my kids about it.
53. Just outside to the south west of the Tenement Area on the Mueller Range, there is a point, which is named Moowarra. This is a special place in the Dreamtime story about the turtles and the goanna that brought that crocodile along and finished up at Ganinyi. Those animals stopped at Moowarra, The story runs back through Moowarra around to Margaret River and O’Donnell River.
54. In that Tenement Area there is a big wall or cliff face there, in the area directly behind where “UTAH1 and “UTAH 2” are marked on the map attached to this affidavit. You can see that big wall from the hill near the spring at Goat Paddock, you can easily see it from high up there. There is a rock hole there that comes from that story of two turtle and the crocodile. That place is where they bring that crocodile, to put him in that place. The two turtles stopped at that wall, one short necked and one long neck: one long neck is Walarabi and short neck is doowi. There is a black thing there, that mark, and that’s where in the Dreamtime one turtle dropped that bar, to hear the sound of how deep that water was for the crocodile to live there. The turtle was checking out how deep the water was, to see whether it was deep enough to take a crocodile into that water.
55. At the end of that story, they all sat down, the two turtle and goanna, with that crocodile in that area kardiya call Goat Paddock. When they anived they were still people at that time, but at that place they turned in to animals — turtles, crocodile, giwili, goanna.
56. That place is where the Dreamtime story people, my ancestors, stopped and turned into animals. Other Dreamtime mob kept going past that place. That’s where my mob, my ancestors had to call themselves, “I’m turtles and I’m crocodiles and I’m goannas”. When the Dreaming people turn in to an animal, that’s what gave them their skin name.
57. All the Gooniyandi people, even all those kids living in Yiyili have a skin name that relates them to the ancestral Dreaming Beings that stopped in Goat Paddock.
58. My skin name comes from that crocodile. My mother’s skin comes from that turtle. The two turtles took us to there and put us in the water.
59. My grandson John’s skin name is Joowoorrroo, that relates him to crocodile, porcupine and catfish.
60. Other people skin name comes from the goanna, who is the cousin, but still same skin like us. Also there is the water goanna, his skin is Joongoorra, and is also our cousin.
61. Another big Dreaming story, my story, but part of the Gooniyandi stories, also happened right there in that place in Goat’s Paddock. In that place, that is where the turtle said to goanna, you must give your head to the crocodile because he is the one that has to live in the water and you’ll be on dry land. The crocodile and the goanna swapped over heads then. I’m related to that area by that Dreaming. It is from my mum, passed on from her great grandmother, right back to my great grand mothers and fathers.
62. I teach those kids that story, and this year they did part of that story at the Crocodile Festival. They all sing song the old people still pass on when we all go out to that place to camp.
63. People might reckon this country got no name, but it’s all got name. That place down there called, Balmoongoo (where Margaret River and O’Donnell River run together) running down here, where I will take you and we are going to stop.
64. I am trying to explain why these places in the different stories, inside the Tenement Area, are so special to me and my mob. From these places we get our name, so we know who we are and who our ancestors are. Under our Law we have to look after these places.
65. If strangers come on to that country and mess around they can cause big problems. I tell you one example. A snake travelled through here right up to where that spring is in Goat Paddock. If the Grantee starts digging near that place, where the water is coming out, it is dangerous. People might go blind. Its only a little spring, and it feeds from that hill, its sacred. If they disturb that area something might happen to those Grantee mob.
66. On the map of the Tenement Area, attached to this affidavit, there where the Grantee has put that mark, directly behind the points marked “UTAH 1” and “UTAH 2”, there is a Joongoorra, there, where they’re going to go or drill. Under our Law, they need to ask permission to go to that place, where they have that mark there is where that two turtle and crocodile, that migalardi and all that animal stop here.
67. I am concerned that if the Grantee people touch any funeral place, some of my people might get sick. Only us mob know where those places are, so Grantee mob might walk over a funeral place, or maybe drive over it. That is not allowed under our Law. Our funeral place not like kardiya funeral place, no big stone. But we still know where those places are.
68. The Grantee mob, they need to speak to us Gooniyandi mob. They need a clearance for their safety.
69. If they driving around, or drilling and they break our Law they might get sick and die because they might wake up a spirit living there.
70. At the spring at Goat Paddock is the place of the water snake. Under our Law we have a way of talking to the spirit, to introduce ourselves so there is no trouble. That’s why the old fellas always come and put water on your head, to protect you. You go without water on your head you might get sick, bad sick.
71. If Grantee people get sick, or if our people get sick because of what Grantee does, we will all feel very sorry in our heart. If Grantee goes out to that area without talking to us first we will have big worry all the time.
Major disturbance to land or waters
72. Well every time after working, people from the community, we always go use that for fishing and camping. And people work there too ya-know. During working time people go out there, taking to work around there, mustering there. I don’t know what’s gonna-happen if mining goes there, what gonna happen? Lot of people own that area. One or two person are here and another person own through there, a lot of hard question ya- know to answer of it.
73. We need a rule you know so we can always use this area.
74. If they really want to drill there near that Dreaming wall, to me its better for me to give them clearance and fence around that Dreaming areas, those places from our stories.
75. We can have a good relationship together where the Grantee do his business and I do mine. Then I can still bring kids out here, If they don’t talk to us, then it’s not going to work; my culture and their culture together. To me it’s very important to have this place for the kids because you never know what will happen. We are getting old you know, when I go what will happen to the story for these kids?
76. When kardiya get a map they think nobody own that land and they can go where they like and go round there. But people own that country, right through the Claim, and all around. What I’m saying, is the Grantee they have to talk to us and do a heritage clearance first so they can stay on that boundary, and not wreck our special places.
77. I don’t want them coming round here, asking what you doing here? They need to respect this is Gooniyandi culture and Gooniyandi Law that applies to this area. They need to come into the Tenement Area with the right attitude to develop a strong relationship with the Traditional Owners. Traditional Owner’s need to say where they not allowed to dig here, they not allowed to dig there, then they can stay on that boundary inside that boundary.
78. We love this country, that Grantee mob don’t look at this country like us, they look at something else, something inside. They should talk to us before they come on to our country.’
Affidavit of Mervyn Street, sworn 16 November 2006
‘I, Mervyn Street, Artist and Senior Cultural Advisor, of Pullout Springs on Louisa Downs Station between Halls Creek and Fitzroy Crossing, in the State of Western Australia affirm:
1. I refer to the affidavit affirmed by me on 4 October, 2006 (‘my original affidavit’) and filed with this Tribunal, which is true and correct.
2. I have again been shown the map of the exploration licence application area E80/3266 (‘the tenement’) that was attached to my original affidavit.
3. In or about September, 2006 I visited the exploration licence application area.
4. Some of the burial sites referred to in paragraphs 51 and 67 of my original affidavit are within the tenement.
5. The sire referred to in paragraph 52 of my original affidavit passes through the tenement.
6. The site referred to in paragraphs 54 and 66 of my original affidavit is within the tenement.
7. The site referred to in paragraph 61 of my original affidavit is within the tenement.’
The native title party filed a statement of contentions with the Tribunal by email on 6 October 2006. I have read and considered this material and will refer to it during the course of the reasoning that follows.
Material provided by the grantee party
The grantee party submitted to the Tribunal a statement of contentions accompanied by four affidavits sworn by Graeme John Hutton, Campbell Robert Algie, Miles Alistair Kennedy and Peter Sisley Thomas. I believe in this matter it is important that the grantee’s relevant evidence be set out fully. I have omitted setting out the contents of Mr Thomas’ affidavit as it largely summarises the contents of the others, although to the extent any of its contents are probative, I have referred to it in the body of the reasons. In its statement of contentions the grantee party adopts the contentions filed on behalf of the Government party. It contends that the Tribunal does not have before it any evidence on which it can reliably be found that there exist any sites which are likely to be interfered with by the grant of the proposed licence. The grantee party makes reference to its track record and to negotiations between the native title party and grantee party in support of its stated primary contention that the grant of the proposed licence is an act attracting the expedited procedure. It contends that it is unlikely that there will be any exploration in the area of the proposed licence and, in the event that it does occur, it is prepared to take any necessary steps to ensure such exploration is carried out in a manner that minimises disturbance to the native title party, and protects any area of significance to them.
Affidavit of Graeme John Hutton, sworn 9 November 2006
‘I, GRAEME JOHN HUTTON, of Broome, in the state of Western Australia, Company Director and Geologist, being duly sworn, make oath and say as follows.
I am a shareholder and director of Faustus Nominees Pty Ltd (ACN 008 874 315) (Faustus). I control Faustus and swear this Affidavit to oppose the objection by Native Title Party to the application of the expedited procedure to the application by Faustus for exploration Licence E80/3266 (ELA).
Resource and Investment Company NL (ACN 085 806 284) (R&I) and Faustus (jointly the Joint Venturers) are party to a joint venture (Joint Venture) which is targeting diamonds.
R&I is the manager of the joint venture but I direct the overall strategy for exploration by the Joint Venture.
Goat Paddock
One of the Joint Venture projects covers a topographic embayment feature known to me (and herein referred to) as Goat Paddock. That feature is covered by exploration licence E80/3153 (the Granted Tenement) - which is registered in the name of Faustus - and the ELA (herein the ELA and the Granted Tenement are jointly referred to as the Tenements).
The Target at Goat Paddock
The Joint Venture has undertaken a ground magnetic survey (Survey) over the Granted Tenement which reflected an anomalous (the Anomaly) magnetic feature.
The geophysical target (Target) derived from the modelling of the Anomaly is interpreted to be consistent, possibly (there are many other possible explanations all of no interest to the Joint Venture), with the presence of an intrusive rock called kimberlite at a depth, to the top thereof, of not less than 200 metres from the natural surface.
Likely course of exploration endeavour
The Joint Venture wishes to drill one hole (the Hole) on the Granted Tenement (not on the ELA) to intersect the Target to test whether the Anomaly is explained by the presence of kimberlite.
The outcome of the Hole will be cut and dried – if the Hole does not intersect kimberlite there will be no purpose in drilling further holes to test for the presence of kimberlite. If there is kimberlite at the depth postulated by the model, the Hole will intersect it. If Goat Paddock is explained by the intrusion of kimberlite, then it will be there will be a very wide zone of kimberlite and intersecting it will not be difficult.
If the Anomaly is not explained by the presence of kimberlite, then Faustus and the Joint Venture will walk away from the Tenements and conduct no further exploration thereon and neither will have any further interest therein unless an entirely unexpected and unlikely discovery of a potentially economic occurrence of another mineral is made.
On the other hand, if kimberlite is intersected by the drilling of the Hole, it is envisaged that:
(a)further drilling will be undertaken to get a bulk sample;
(b)this would entail the drilling of either:
(i)a further single hole of about 1.5 metres in diameter if a hole of that size can be drilled to the desired depth; or, failing that,
(i)a number of smaller holes, which can be drilled to the desired depth and gather the required amount of sample.
The object of the further drilling will be to generate sufficient bulk sample to test for the presence (or otherwise) of micro and macro diamonds.
It is inconceivable that Grantee Party would seek to fence on any part of the ELA in exercise of its rights upon grant of the ELA save and except to give effect to the wishes of Native Title Party to protect an area of interest to Native Title Party.
Grantee Party would not use any water in an irresponsible manner.
Likelihood of a commercial discovery
Statistically and in reality:
(a)it is highly improbable that the Anomaly is explained by the presence of kimberlite;
(b)if the Anomaly is explained by the presence of kimberlite then it is highly improbable that such occurrence is diamondiferous;
(c)in the unlikely event that the Anomaly is explained by the presence of diamondiferous kimberlite, is it is an extremely remote possibility (and indeed highly improbable) that such occurrence would be economically viable.
A diamondiferous occurrence, the top of which is at least 200 metres below the natural surface, would have to be both significantly rich and significantly large in order for it to be economically viable. It is very rare indeed to find such a mineralised occurrence.
For this reason, whilst there have been a number of underground diamond mines in the world, the majority, by far, are open cut mines.
In short, it is an extraordinarily remote possibility (or put another way, extremely unlikely) that:
(a)any holes other than the Hole will be drilled; or
(b)any portion Goat Paddock will ever be mined for diamonds.
Likely mode of mining
In the highly improbable event of an economically exploitable body of mineralisation being discovered, the mining of that mineralised body would (because of the depth to top of target) have to be via an underground (as opposed to an open pit) operation so that disturbance to the natural surface would be restricted to:
(a)the temporal construction and presence of facilities on surface necessary to support such an operation - those facilities could, in my experience, likely be housed on an area not exceeding twenty acres in aggregate (that is an area of about 200 metres x 200 metres) and the location of such an area could be determined to accommodate the desire of the local community; and
(b)a small surface opening to the underground mine – much like a road tunnel going into the ground – within the above area.
It is not useful to speculate at this time as to the potential life of the mine if a discovery is made and a mining operation is established.
Rehabilitation
The surface of Goat Paddock is flat and sandy - there is no outcrop in the valley of the embayment. The area is essentially covered by spinifex, a few shrubs and small trees. There will not be a lot of physical damage to the surface of the embayment (or to the area of the subject of the Tenements otherwise generally) or the vegetation thereon as a consequence of any exploration or mining effort by Faustus or the Joint Venture.
The wet season climate at Goat Paddock sees heavy annual rainfall of about 20 to 25 inches.
Based on my experience generally and my knowledge of Goat Paddock the drilling of the Hole and any further holes will be likely to cause only minimal damage to the natural surface and the environment with any incursion caused by the drilling (and associated activities), upon rehabilitative work being undertaken (as required by the Mining Act and which would in any event be undertaken in accordance with modern practice), likely being largely obliterated by the wet season following rehabilitation such that it would soon be undetectable – ensuing wet seasons will almost entirely obliterate evidence over time.
The evidence of the activity left by Utah’s drilling in the 1970s is a legacy of rehabilitation practices of the time and the standards prevailing today. Had Utah rehabilitated the areas impacted by it in accordance with today’s standards evidence its presence would long since have been obliterated.
My knowledge of Goat Paddock & interaction with the locals
I have been to Goat Paddock four or five times by helicopter since the beginning of about 2004.
I went to Louisa Downs Station Homestead on about my third trip to Goat Paddock for the purposes of establishing, at that location, a staging point for the trip to Goat Paddock. We dropped a drum of fuel off there. On the occasion of my attendance at the homestead, I was in the company of field hand and the helicopter pilot. We were met at the homestead by a number of Aboriginals who conducted themselves in a manner which led me to believe they held positions of responsibility and authority.
We introduced ourselves to one another and I explained to them what we were doing there. I produced a map showing them the area of interest (namely Goat Paddock) and explained our interest in and plans for that area. I asked whether we could use the homestead as a refuelling base and they said there would be no problem with using the station as a refuelling depot.
They did not express any concerns about Goat Paddock being explored. Indeed they were very warm and friendly and conducted themselves in a manner which, in my experience, was entirely consistent with them being happy about Goat Paddock being explored. In my experience, if they had been unhappy about anything said to them, they would have behaved entirely differently. In my experience, Aboriginals express displeasure by dismissive in their nature and generally ignoring you. They displayed none of these characteristics to me.
On the four or five occasions that I have flown into Goat Paddock by helicopter I have never seen anyone there other than persons representing the Joint Venture or Faustus.
I believe it is unlikely that there are any sites of significance to the local community within Goat Paddock except at the north end where there is a spring. The spring area is a likely place for use as a camp site as it is shady but there is no reason to use it if it is a site of significance; it can easily be avoided by the Joint Ventures.
My contact with Gooniyandi mob has been limited to my visit to the Louisa Downs Station as detailed above. During that contact, I did not discern any concerns, agitation or angst on the part of the Gooniyandi peoples about the prospect of Goat Paddock being explored – rather I left with the impression that the locals were keen for there to be exploration in the area and, more particularly, they were keenly interested in the refurbishment and establishment of various tracks by the explorer to and variously through the area in question.
I have been very keen for the Joint Venture to strike up a one on one dialogue and ongoing rapport with Gooniyandi but I have been advised by Sarah Yu and Peter Thomas that protocol requires all dealings at this time to be through the KLC as representatives for Gooniyandi.
Likelihood of direct interference
The first programme will be to drill the Hole on the Granted Tenement (not the ELA). That programme will take about 4 weeks including getting the rig to site and preparing access and attending to other activities related to the drilling if the Hole.
If the Hole is an exploration success then the likely mode in which the Joint Venture would further explore Goat Paddock would be to mount an annual campaign spanning no more than a few weeks before the onset of the wet. Exploration activity on the Tenements will, therefore, most likely be infrequent (once a year) and of short duration (not more than 6 weeks). This is all speculative but reflects my experience. Actual events will be dependant on numerous variables, especially results of successive exploration programmes.
Even with the constraints of the wet season and in the unlikely event the local community might want to be in an area at the same time as the Joint Venturers, given my experience, it is inconceivable to me that the timing of any exploration endeavour could not be adjusted to ensure there is no on ground presence by the Joint Venturers at times when the local community indicate they wish to be in the area in accordance with their tradition and custom.
In the absence of assistance being forthcoming from Native Title Party, Grantee Party intends to take advice from an appropriately experienced anthropologist in relation to the requisite measures to be adopted to seek to minimise the risk of inadvertently interfering with the interests and sensitivities of Native Title Party.
My Background
I have a Bachelor of Science degree (Hons) with my major being in geology. Since graduating, some 40 years ago, from the University of Western Australia I have been a prospecting geologist and businessman.
Early in my prospecting career I focussed on the Hamersley Iron Province on behalf DFD Rhodes Pty Ltd and was involved in the discovery of:
(a)the Rhodes Ridge Group and West Angelas iron ore deposits now owned by Rio Tinto; and
(b)the Mc Ames iron ore deposit now owned by BHP Iron.
Late in the 1970’s I, together with Peter Ingram, formed Metana Minerals NL and it was a leading Western Australian gold producer before I left Metana early in the 1990’s when I became the driving force behind the establishment of Kimberley Diamond Company NL (KDC) now Australia’s second commercial diamond producer and the fifth largest producer of diamonds in the world. I maintain an active involvement with KDC as the technical director of that company.
I also serve on the board of listed ASX companies Herald Resources NL (a company which has produced gold in Western Australia over an extended period and currently is developing an operation in Indonesia) and Sandfire Resources NL (with projects in Western Australia and the Northern Territory).
I have been actively involved in a very wide range of exploration and mining activities over the last 40 years. I am very familiar with the impact that various exploration activities can have on the land and the extent to which rehabilitation is effective to restore land to its pre disturbed condition. Rehabilitation efforts in the Kimberly tend to be aided by the significant wet that typically occurs annually and the results of modern rehabilitation of drilling sites in the Kimberly are typically so good that evidence of the incursions made thereby is generally obliterated within a season or two.
I have been actively involved with many (no fewer than 4 gold and diamond) operating mines in my capacity as a director of companies – my involvement has extended from the prospecting phase through exploration, feasibility study, development commissioning and operation of mines.
For the last 13 years I have lived principally in Broome in the Kimberley of Western Australia.
At all times during my 40 years as a prospecting geologist, and more particularly lately since I have lived in Broome, I have had regular contact with the Aboriginal community.
I have always spent a huge amount of time in the bush (I still do) and have a good on ground knowledge of vast tracts of outback Western Australia. I love the bush and spending a great deal of my time prospecting out in the bush.
Perhaps the best example of my association with the Aboriginals, in the context of a socially responsible association, is through my personal involvement, on behalf of Maxima Pearling Company Pty Ltd (ACN 009 251 441) (of which I am a director and major shareholder) with the Yalwn community at Cone Bay in the West Kimberley.
Maxima has a close working relationship with the Yalwn community. That relationship spans some 15 years and includes Maxima (as part of its pearling operations at Cone Bay):
(a)employing and training some of the Yalwn community;
(b)providing emergency services and delivering community benefits (in various forms) to the Yalwn community.
The relationship has been positive for the Yalwn community and I am pleased to say that the Yalwn community welcomes the presence of Maxima at Cone Bay.
I have never had any conflict with aboriginal groups and I have always, both personally and via my involvement with various entities, been able to work closely and harmoniously with aboriginal communities impacted by the actual or proposed operations in which I have been involved.
Aboriginal Heritage Act 1972 (WA)
I believe I have a good hands on working knowledge of the requirements and provisions of the Heritage Act by reason of my background. Faustus is, and I am, favourably disposed to observing and fulfilling the obligations arising in terms of the Heritage Act as fully as possible. We are sympathetic to and supportive of the objectives of the Heritage Act.
In my experience, it is unusual for it to be necessary to disturb Aboriginal sites although it is probably done from time to time when no-one, not even Aboriginals, know about them.
In my experience, when sites of significance or interest to Aboriginal persons are known, everything has been done by any explorer or miner in which I have an interest to avoid and protect those sites. I have only ever been involved in one circumstance where an Aboriginal site has been knowingly disturbed. In that case an artefact scatter was, pursuant to leave granted in accordance with the requirements of the Heritage Act, disturbed by KDC during the course of its mining activities at Ellendale.
As part of my network, it is my practice to cause entities in which I have a controlling interest to engage Peter and Sarah Yu to manage and advise in relation to Aboriginal issues. They were engaged, either by Faustus or the Joint Venture, to assist the Joint Venture develop and manage the relationship with Gooniyandi; Sarah Yu took the lead role.
In due course, Sarah Yu told me that a heritage protocol agreement (HPA) had been put forward by the KLC (on behalf of Gooniyandi) and that the heritage agreement should be executed. I indicated to her, in accordance with my usual practice, that she should just attend to that matter.
R&I, as manager of the Joint Venture, instructed Smyth & Thomas to review the HPA.
I repeatedly asked R&I why the HPA hadn’t just been signed because I just wanted to get on and drill the Hole in the belief that in all probability the results would determine that the Joint Venture had no further interest in and would walk away from the project.
A considerable time later, after I had become increasingly irritated by the delay, it was explained to me by Peter Thomas of Smyth & Thomas and I understood and was convinced for the first time that if the Joint Venturers executed the HPA, Gooniyandi would have the power to veto (Power of Veto) the Joint Venture accessing any part of Goat Paddock.
This understanding was entirely inconsistent with the repeated assurances which Sarah Yu had given me about the effect of the HPA and, in particular, that the Gooniyandi were not asserting an exclusive right of possession.
It took me a long time to grasp that the HPA sought to confer the Power of Veto on Gooniyandi – because it seemed to me that to seek such a power was such an absurd proposition that it must be wrong. It seemed to me that the whole spirit of positive relationship between the explorers and black fellas would be ended for all time if the proposition was correct. That is why it took me so long to come to understand and accept that indeed the HPA, if signed, would expose the Joint Venturers to the risk of them being denied access to the ground without any recourse on the part of the Joint Venturers to the courts or otherwise.
As soon as I came to understand the Power of Veto issue, I immediately concluded that it would be pointless for the Joint Venture to go and drill the Hole (even though it was legally entitled to do so given that the Hole was to be on the Granted Tenement rather than the ELA) if, in the event of a discovery being made, the Joint Venture was exposed to the threat of being denied access for other purposes at some indeterminate time.
The HPA provided for the concept of programme surveys or programme clearances. That is, before every programme the TOs must be involved in a survey of the area to be affected by the programme. A report is prepared following the survey and the programme is either authorised so it can proceed or not so that the programme cannot be undertaken. The fact that a particular programme has been authorised does not mean that a future programme affecting the same area will be authorised.
The Joint Venture would much prefer the concept of area surveys or area clearances. That is, designated areas are surveyed by the TOs at the request of the explorer and a report is prepared disclosing any sites which the explorer needs to be aware of and which sites need to be avoided and whether for some or all purposes.
From an explorer’s perspective, the fundamental difference between a programme survey and an area survey approach is that in the case of the:
(a)former, the explorer is always exposed to the threat that some activity in the future (and without prior warning) may be prohibited even though much prior activity has been permitted in the same area;
(b)later, the explorer can determine at an early stage what potential there is for sites to impede or block future works on the part of the explorer and in that context can make a commercial decision before spending potentially vast sums of money whether to walk away or not.
Had the HPA provided for area surveys rather than programme surveys then the Power of Veto (subject to the final terms thereof) would be acceptable.
However, the HPA provides for programme clearances only which means that even though one programme is authorised a subsequent programme in respect of the same area may not be.
None of my entities nor I have ever been charged with breaching any State or Commonwealth heritage legislation.’
Affidavit of Campbell Robert Algie, sworn 8 November 2006
‘I, CAMPBELL ROBERT ALGIE, of 15 Matthews Road, Anula in the Northern Territory, Contract Field Services Provider, being duly sworn, make oath and say as follows.
I operate a business providing geological and related field services to mining companies and others on a contract basis.
Background
During 2005 I was engaged by Faustus Nominees Pty Ltd (Faustus) and Namakwa Diamond Company NL (together referred to as Grantee Party in this affidavit) to provide services relating to proposed activities in an area the subject of a granted tenement, namely, E80/3153, (Existing Tenement) abutting the area the subject of the application (ELA) for exploration licence E80/3266, to which these proceedings relate.
Part of the area the subject of the Existing Tenement and the ELA is known as ‘Goat Paddock’, and, I believe, is encompassed by the area the subject of the native title claim made by Native Title Party.
Grantee Party proposes to explore Goat Paddock for kimberlite pipes which may contain diamonds.
Prior Contact with Native Title Party
I have seen a copy of a document entitled ‘Heritage Notice’ sent by the Grantee Party to the Native Title Party and their solicitors. Annexed to this affidavit (and marked with the letters ‘CRA-1’) is a copy of the Heritage Notice. The Heritage Notice sets out the work currently proposed to be carried out on the Existing Tenement by the Grantee Party, as well as the exploration and pastoral history for the Goat Paddock area.
During July 2005, I made telephone contact with Mr Norman Cox who was living at the Louisa Downs Station. I was given Mr Cox’s name by Mr Graeme Hutton, a director of Faustus, as a person who would be able to assist me to obtain permission to access the tenements. I told Mr Cox that I wished to meet with him as I was seeking permission to visit Goat Paddock to carry out some ground magnetic survey work for the Grantee Party. He gave me permission over the phone, but I asked if I could come and see him to discuss it anyway.
During August 2005 I visited the Louisa Downs Station to meet with Mr Cox. At that time I recall speaking to another elder in an informal manner, but I do not recall his name. I do recall that I explained to him that I was there to speak to Mr Cox as I wished to go to Goat Paddock. He told me about the fish and waterholes in the area I proposed to visit and told me that it was “nice country”. He did not give me any indication that I should not be visiting any part of the area (he was smiling and happy).
I met with Mr Cox and again explained to him that I was seeking access to Goat Paddock to carry out ground magnetic survey work for the Grantee Party. I explained that this work involved minimal ground disturbance and was to assist the Grantee Party in determining if further exploration work in the area was warranted. I explained to Mr Cox what I would be doing, that I would be at Goat Paddock for a number of weeks and I explained that I wanted to speak to the right people to get the permission of the traditional owners of the land for my work. Mr Cox seemed familiar with the work that I was to do.
Mr Cox said words that left me with the clear impression that I was speaking to the right person, that he had authority to speak for the traditional owners of the area that I wanted to visit and that it was OK for me to visit Goat Paddock and carry out my work.
Mr Cox did not give me any intimation that I should avoid any areas or that I had to speak to any other persons prior to going to Goat Paddock.
The meeting was reasonably brief, with Mr Cox not raising any queries or objections.
I also spoke to the pastoralist at Louisa Downs Station prior to going to Goat Paddock. He told me that they occasionally mustered cattle in that area.
Observations whilst at Goat Paddock
My first visit to Goat Paddock was sometime in May 2005 when I visited by helicopter for a period of about 2 hours to have a look around.
As a result of my meeting with Mr Cox, I travelled to Goat Paddock in August 2005 with one assistant. I travelled partly by vehicle and then by foot due to the rugged nature of the terrain. I recall that the existing station tracks were suitable for vehicles but that access to the proposed drill site area was not possible by vehicle, and I had to travel by foot. Overall I spent 3 weeks at Goat Paddock carrying out the ground magnetic survey. I camped under the hill to the north east of the proposed drill hole location. I saw no one else at Goat Paddock and ELA.
Whilst at Goat Paddock I noticed signs of ground disturbance (Star pickets, wire, empty drum) near the spring referred to in paragraph 55 of Mr Dawson’s affidavit that appeared to be due to the actions of cattle. The spring is a source of fresh water and shade for cattle.
I also noticed the remnants of tracks to the sites of the 2 holes drilled by Utah Development Company Ltd (Utah) years before, as well as core sample fragments, core trays and drill collar, corrugated iron, star pickets and drill collars lying around those sites.
I did not see any signs of recent human activity on Goat Paddock. To my knowledge no community lives at Goat Paddock, with the nearest community being at or near the Louisa Downs Station.
Prior to my reading of the affidavits of Mr Dawson and Street, I was not aware of the presence of any areas of importance to aboriginal people at Goat Paddock. From reading the affidavits I can work out the location of the spring and waterhole referred to in paragraphs 40 and 55 of Mr Dawson’s affidavit. Many of the other areas referred to in the affidavits appear to be outside the area the subject of the ELA. I am unable to precisely locate most of the areas by the descriptions given in the affidavits.
It seems to me that the best way to identify areas said to be aboriginal sites that cannot be disturbed would be by the Native Title Party either walking the area with representatives of the Grantee Party or else marking the areas on a suitable map. I have been informed by Mr Peter Thomas and verily believe that the Grantee Party has been trying to negotiate some form of agreement with the Native Title Party to achieve this result.’
Affidavit of Miles Alistair Kennedy, sworn 13 November 2006
‘I, MILES ALISTAIR KENNEDY, of 9 Conon Road, Applecross in the state of Western Australia, Company Director and Solicitor, being duly sworn, make oath and say as follows.
Basis for this affidavit
I swear this affidavit in support of Grantee Party’s contention that it is appropriate to apply the expedited procedure objected (Objection) to in these proceedings (these Proceedings) to the subject future act, namely, the grant of the application (ELA) for exploration licence No. E80/3266.
On 7 September 2006 I was appointed, and I remain, a director and the chairman of diamond explorer Resource & Investment Company NL (ACN 085 806 284) (R&I). I have had a significant relevant interest (in terms of the Corporations Act) in R&I at all times since it listed on ASX in 2001 – it was then called Namakwa Diamond Company NL.
R&I is party to a joint venture (Joint Venture) with Faustus Nominees Pty Ltd (ACN 008 874 315) (Faustus). R&I is the manager of the Joint Venture. The target mineral of the Joint Venture is diamonds. Herein R&I and Faustus jointly referred to as the Joint Venturers.
One of the projects the subject of the Joint Venture, known as Goat Paddock, is covered by:
a.exploration licence (the Granted Tenement) No. E80/3153 (which I am advised by R&I’s tenement manager, Brenton Parry of Western Tenement Services was granted to Faustus on 17 December 2003); and
b.ELA;
(herein the Granted Tenement and the ELA being jointly referred to as the Tenements).
R&I has the right to earn various interests in the Tenements pursuant to the terms of the Joint Venture agreement by incurring certain expenditures as follows:
a.during first year of the term of the joint venture R&I had the right to earn a 20% interest by expending $250,000;
b.during second year of the term of the Joint Venture R&I had the right to earn a further 20% by expending $350,000;
c.during third year of the term of the Joint Venture R&I had the right to earn a further 20% interest by expending a further $500,000;
d.thereafter R&I had the right to earn a further 20% by paying a further $1,500,000;
with the Joint Venture interests then being Faustus 20% and R&I 80% and Faustus being entitled to convert its free carried 20% interest into a gross overriding royalty in which event R&I will be deemed to have acquired all of Faustus’ right title and interest in the Tenements.
Goat Paddock is a diamond project and although R&I is the manager of the Joint Venture, one of the directors of Faustus, Graeme Hutton (Hutton), is the driving geotechnical mind behind the Goat Paddock project. The Joint Venture will likely at all times be guided by him in relation to the general course of exploration at Goat paddock.
The real issue
Generally speaking, unless otherwise indicated, references to the conduct or position adopted by Gooniyandi are references reflecting the acts or advice of KLC which has declared it acts in a representative capacity for, and on instruction from, Gooniyandi.
Native Title Party (or Gooniyandi or Gooniyandi mob or people), through the Kimberley Land Council (KLC), has persisted with the Objection because Grantee has refused to enter into an agreement (the HPA) conferring upon Gooniyandi a continuing non reviewable contractual power to veto access by Grantee to all or part of the area the subject of the ELA (and any other tenement in which the Grantee has or acquires an interest which affect Gooniyandi land, including the Granted Tenement). For ease of reference I refer to this proposed power as the “power of veto”.
The Joint Venturers have no objection whatsoever to:
a.(and indeed support) the protection of sites of interest to Aboriginals; or
b.agreeing not to go to certain areas provided they know up front what the consequences are of so agreeing.
However, from a commercial perspective, the Joint Venturers had no idea as to when, how, how often, in respect of what areas or for what real motivation the power of veto might be exercised.
The Joint Venturers did (and do) not want to be exposed to a situation where they may spend millions of dollars proving up an economic deposit of diamonds only to have the power of veto exercised thereby frustrating their endeavours to mine the same especially where, consistent with the terms of the proposed HPA, it might well be the case that Gooniyandi either:
a.already know that there are certain areas on which they will never permit certain activities (recognising that they may be prepared to permit certain “non-intrusive” activities but not more “intrusive” activities – for instance, they may be prepared to permit drilling but not mining of a certain area);
b.become aware of a site during the course of a survey pursuant to the HPA but fail to indicate that whilst that site is not an impediment to the conduct of certain exploration activities it will be an impediment to other activities;
bearing in mind that the survey regime insisted upon by KLC in the HPA was to require a survey before every programme to determine whether Gooniyandi will permit the conduct of the programme rather than to survey areas to disclose, once and for all purposes, sites of significance.
The likelihood of the power of veto being exercised in a manner which jeopardises the very basis for the joint Venturers’ commercial interest in the Tenements could not be meaningfully assessed by the Joint Venturers at the time the requirement for that power became a deal breaker because neither KLC nor Gooniyandi had disclosed or given any indication to the Joint Venturers as to:
a.Gooniyandi’s knowledge of sites and areas about which they had concerns;
b.Gooniyandi’s present contention that Goat Paddock is a “site rich” area;
yet KLC insisted that areas to be impacted by any programme of Joint Ventures must be surveyed for sites etc prior to the commencement of the programme even though the same area may have previously been the subject of such a survey.
Each of the Joint Venturers is concerned that, had particulars of the sites disclosed in the Affidavits (of Messrs Dawson and Street filed in these Proceedings) been disclosed to them at an early stage and had the Joint Venturers been given the opportunity to consult fully and directly with the persons obliged to protect and with authority to speak for the country in question in accordance with relevant aboriginal law, tradition and custom (rather than being confined to dealing with KLC), the potential for the power of veto to present a real commercial impediment to the aspirations of the Joint Venturers could more likely have been properly assessed and either:
a.the desire of Gooniyandi for that power could have been accommodated on acceptable terms; or
b.the Joint Ventures could have determined that its aspirations and the manner in which the power of veto was likely to be exercise were irreconcilable and accordingly the Joint Venturers could have withdrawn their interest in the Tenements.
Knowledge of sites
I refer to paragraph 19 of the Contentions filed by Native Title Party where it is stated: “The proposed tenement is located in an area which is site rich, and none of the sites are listed on the Department of Indigenous Affairs’ site register”.
It is my understanding that no sites are reflected (as existing in the area of the ELA) in the register (the Register) maintained by the Department of Indigenous Affairs pursuant to the Heritage Act.
Each of the Joint Venturers is well aware that there are many sites protected by the Heritage Act which are not recorded in the Register and that this is the case not only because many such sites are not known to anyone but because, despite the terms of s.15 of the Heritage Act, traditional owners often do not like to disclose details of sites of significance to them.
Each of the Joint Venturers recognises that the best way to avoid unintentionally infringing the provisions of the Heritage Act is to obtain the assistance of traditional owners to endeavour to identify sites protected by that Act; but even with the assistance of traditional owners it is possible that relevant sites might not be identified.
Gooniyandi (represented by Kimberley Land Council - KLC) and the Joint Venturers sought to agree on the terms of the HPA to deal with heritage and cultural matters.
From the perspective of the Joint Venturers, the objects of the HPA were to:
a.ensure that the provisions of the Heritage Act were not unintentionally infringed;
b.establish a platform for a sound working and co-operative relationship with the Gooniyandi mob;
c.establish a protocol to be followed in relation to protecting the interests of the Gooniyandi mob in their land to the extent impacted actually or potentially by the Tenements or the activities of the holder thereof from time to time.
The protracted and often concerted negotiations in relation to the terms of the HPA were abandoned for the reason articulated in the letter from KLC dated 27 June 2006 a copy of which is marked MAK-1 and attached hereto. Neither of the Joint Venturers is willing to confer a contractual, non reviewable right upon the Gooniyandi mob to veto the right of the holder of the Tenements from time to time to access the land the subject thereof when the power of access is a fundamental right conferred by tenements granted pursuant to the Mining Act 1978 (WA) subject to certain statutory limitations, including the Heritage Act.
Insofar as I am aware, following making enquiries in that regard of each of Sarah Yu (anthropologist engaged by the Joint Venture to assist in negotiations and relationship building with the Gooniyandi mob) and Peter Thomas of Smyth & Thomas, solicitor acting for the Joint Venture in the course of some of the HPA negotiations, Gooniyandi mob did not volunteer the nature or location of any specific sites of concern to them in the context of the tenement application the subject of these Proceedings.
Recently, and after the negotiations in respect of the HPA fell away, the Affidavits were served on Faustus. The Affidavits disclose details of various sites of interest to Gooniyandi. Unfortunately, the Affidavits do not provide co-ordinates or plot on any map the location of any of those sites. I tried, with limited success, to identify, by reference to the Map and the Affidavits separately, just where the sites of particular significance alluded to in the Affidavits are variously situated.
Consequently, the first limb of s 237 is not attracted.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to this limb s 237 is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular significance, (in the sense of special or more than ordinary significance) to the native title party in accordance with their traditional laws and customs (Cheinmora v Striker (1996) 142 ALR 21 at [34]–[35]).
The native title party contends that the tenement area has been shown to be ‘site rich’ (contention 19) and consequently:
‘it is incumbent upon the Grantee Party to lead some evidence to provide a basis upon which the NNTT might be assured that interference, intentional or otherwise is not likely, given the practical difficulties with avoiding interference with sites in site rich areas where not all sites may be included on the Department of Indigenous Affairs’ site register. In the absence of evidence from the Grantee Party, the presumption will be that the relevant interference is likely’ (contention 18).
The native title party contends that the protections afforded under the AHA are insufficient to protect sites or objects of Aboriginal significance; that it is possible for the grantee to interfere with the site of particular significance without breaching the AHA, i.e. ‘mere presence in some areas may cause interference’ (see contentions 20–26).
The evidence of the native title party in relation to the location and significance of sites of particular significance in the tenement area has proven difficult to fully comprehend. There appear to be some inaccuracies in the original submissions in relation to the affidavit evidence on the location of sites. Nevertheless, as a result of the supplementary affidavits and contentions filed by the native title party, I now feel confident that I am able to identify the location of the sites referred to either as being within the tenement area, passing through it or adjacent to it and, consequently, to assess their particular significance.
The affidavit of Mr Dawson indicates that Jilgara is special because there is a Dreamtime story associated with it and that his ancestral snake is in the spring now. He says: ‘The snake came from the river and went up to that spring, tread down the waterhole to that spring’. He states that the snake is called Joongoorra and that under his law he has to look after it (see [49]). At paragraph 50 he says that when the summer weather is really bad, they can always find water in the spring and they can talk to the snake and the snake can make it rain. He says that they talk to the snake when they visit the area so that they won’t disturb it. ‘Every time you come out here you have to have water put on your head because of the Dreaming time. That’s our culture you know, so the country recognises you’. If you are a stranger, you might get a headache ‘because you don’t do the right thing’ (see [51]). He says that there are other stories about that place at Jilgara, one concerning a blue brolga with a wet head that can be seen in the lagoon. That place is called Moowarra (see [52]). Moowarra appears to be a song line or dreaming track which passes through the tenement area and proceeds on beyond it. Mr Dawson further states that his family camped at a site called Nyalagi which is to the south east of Goat Paddock where there is a story about a flying fox, called Bigermee. The flying fox was the best dancer and the crocodile was jealous of the flying fox. The flying fox family talked to him and he went back and got his spear and speared the crocodile. That dreaming track appears to move up through the tenement in the direction of the area near the sites of UTAH 1 and UTAH 2 and then on to Jilgara (see [46]–[47]). There also appears to be a site which, it is asserted in the supplementary submissions, passes through the tenement area. The site in question is named Walus and is referred to in paragraph 53 of Mr Dawson’s affidavit. However, what Mr Dawson says in that paragraph does not persuade me that that waterhole, as it’s described—which is in the Mueller Ranges—is associated, in any conclusive way, with the dreaming track that passes through the tenement area. Other sites referred to at paragraph 9 of the original contentions relating to Mr Dawson’s evidence, including a Telingun at [30], Walu at [32], appear to be sites which are clearly outside the tenement area.
The affidavit of Mr Street in relation to sites of particular significance firstly confirms the evidence given by Mr Dawson in relation to Jilgara, and further confirms its location within Goat Paddock to the north east side of the tenement area (see [48]). Mr Street in his supplementary affidavit confirms that the site he identifies as Joongoorra, in paragraphs [54] and [66], which is the area of the cliff face near and behind UTAH 1 and UTAH 2 as marked on the map attached to Mr Street’ s affidavit. Mr Street describes the area as a big wall cliff face, directly behind UTAH 1 or 2, which can easily be seen from across Goat Paddock. He says:
‘There is a rock hole there that comes from that story of two turtle and the crocodile. That place is where they bring that crocodile, to put him in that place. The two turtles stopped at the wall, one short neck and one long neck: one long neck is Walarabi and short neck doowi. There is a black thing there, that mark, and that’s where in the Dreamtime one turtle dropped that bar, to hear the sound of how deep that water was for the crocodile to live there. The turtle was checking out how deep the water was, to see whether it was deep enough to take a crocodile into the water’.
In the end of the story they all sat down, the two turtles and the goanna with the crocodile. In Goat Paddock when they arrived there were people who lived there and they turned into animals: turtles, crocodile, Yuwilli and goanna. He relates how his ancestors turned into animals and that is how they now refer to themselves—how they got their skin names as either turtles, or crocodiles, or goannas (see [54]–[56]).
In his supplementary affidavit, Mr Street also asserts that the site he refers to in paragraph 61 of his affidavit is also a site within the tenement area. In that paragraph, Mr Street refers to another big Dreaming story:
‘my Story, but part of the Gooniyandi stories, also happened right there in that place in Goat’s Paddock. In that place, that is where the turtle said to goanna, you must give your head to the crocodile because he is the one that has to live in the water and you’ll be on dry land. The crocodile and the goanna swapped over heads then. I’m related to that area by that Dreaming. It is from my mum, passed on from my great grandmother, right back to my great grandmothers and fathers.’
It is not entirely clear to me that this site is one within the tenement area. There is a reference in the second line of paragraph 61 to the effect that it happened ‘right there in that place in Goat Paddock’, and given that, in the paragraphs 54–60 previously we had been discussing the story related to the Joongoorra site, which is located within the tenement area within Goat Paddock, I am prepared to infer that the area the subject of the story is within the tenement area.
In Mr Street’s supplementary affidavit, he seeks to confirm that at paragraph 4 ‘some of the burial sites referred to in paragraph 51 and 67 of my original affidavit are within the tenement’. The native title party’s supplementary contentions are not so equivocal indicating that ‘burial sites identified in paragraphs 51 and 67 of his original affidavit’ when making reference to particular sites that are located within the tenement area. Paragraph 51 of Mr Street’s affidavit reads as follows:
‘In this place there are burial sites. Both Gija and Gooniyandi people used to live in and around the Tenement Area, all along the rivers. Those old people were shot and poisoned, and killed. There is a massive grave from a long time ago. I can’t talk about where those burial sites are. Matt Dawson got family and I’ve got family here. This area is in Gooniyandi country.’
I am simply unable to conclude that the burial sites that Mr Street refers to are located in the tenement area. He makes reference to ‘in and around the tenement area’, ‘all along the rivers’ and ‘the area in Gooniyandi country’. None of that evidence in my view is sufficiently specific, particularly given the lack of detail concerning the site (which in itself is understandable) to convince me that any of the burial sites referred to at paragraph 51 are within the tenement area. Paragraph 61 is, if anything, even less specific. It talks rather in terms of how people would feel if the grantee was able to walk over the funeral place rather than attempting to identify the location of the site and therefore does not add to the evidence in relation to whether or not those sites are within the tenement area and consequently, does not assist.
Mr Street also gives evidence in relation to sites of particular significance or dreaming tracks which pass through the tenement area. He confirms the information provided by Mr Dawson in relation to Moowarra identified at paragraph 52 of his affidavit. He also identifies a site known as Ngoolanarra in paragraph 31 of his affidavit. He indicates this area originates ‘just west of the bottom left of the Tenement Area’, which I take to be the south west corner of the tenement area, and indicates that is where the story about the two turtles, the crocodile and the bat originated, which according to the evidence of Mr Dawson travels up to and possibly through the area in the vicinity of the drill holes, UTAH 1 and UTAH 2. Mr Street refers to the danger that strangers may encounter if they go onto the area without the approval of the traditional owners, including that they might go blind (see [65]); get sick and die (see [69]); and that they may get themselves into trouble with the water snake and consequently get very sick if they don’t go there with the consent and accompanied by the traditional owners. Mr Street believes that if the grantee goes into the area without them, they would be very worried about them (see [70]–[71]). Contrary to the assertions in paragraph [29], of the native title party’s original contentions, the sites referred to by Mr Street as ngarri doogidgilari at [29], jirloo at [30]; jarrgamigiiami at [30] and junda at [31], are not within, but probably adjacent to—although not passing through—the tenement concerned.
The grantee party contends that the sites referred to in the native title party’s evidence are not sufficiently described to enable the location of the sites to be determined (see grantee’s contentions at [13.2]). Mr Hutton, in his affidavit, expresses the view at [29] that he believes that it is unlikely that there are any sites of significance to the local community within Goat Paddock, except to the north end where there is a spring. The spring he refers to I take to be Jilgara or ‘potential water source number 1’. Of course, Mr Hutton does not indicate the factual basis upon which his belief is founded. At paragraph 23 of his affidavit, Mr Kennedy indicates that he has had some difficulty in identifying where the sites referred to in Mr Dawson’s affidavit might be located and whether indeed, they are located within the tenement area concerned. Similarly, at paragraph [24], he expresses scepticism about his capacity to accurately and precisely identify the location of the sites referred to in Mr Street’s affidavit, as being within the tenement area. However, in paragraph 25, he goes on to say: ‘Despite my inability to pinpoint the various sites referred to in the Affidavits (even following seeking assistance of the Joint Venturers’ contract cartographer, Ernie Schmidt), I get a clear sense that Mr Street and Mr Dawson and their people do have a strong connection with the area the subject of the Tenements’. Mr Kennedy goes on to says that he is not clear as to whether they have an interest in the hatched area of interest (which is grantee’s ‘described area of interest’) or outside that area, and how they would seek to protect those areas.
Having carefully read and analysed the affidavit evidence of Mr Dawson and Mr Street, I am satisfied that there are sites of particular significance to the native title claimants to be found at Jilgara which is the spring also identified as ‘potential water source 1’ and at Joongoorra which is the site identified as being in the vicinity of UTAH 1 and UTAH 2. I also accept that the site identified as Ganinya close by to Jilgara is also a site of particular significance to the Gooniyandi people. I also conclude that the sites Moowarra and Ngoolanarra are dreaming tracks or song lines which pass through the tenement area and are consequently sites of particular significance within it. At these sites the native title party’s members are required to follow a stringent set of practices designed to appease and respect the beings that are immanent in the relevant features of the landscape. The practices and the narratives which lie at their base indicate a set of behavioural patterns that have a normative foundation. These are also indisputably of great ongoing significance to the native title party.
Although it is unnecessary for me to consider it, there are no registered sites recorded within the area and as the Tribunal has said previously, the AHA protects all Aboriginal sites whether they are on the register or not, and in the event that there are no sites on the register—as it does not purport to be a record of all sites in Western Australia—the Tribunal will consider whether there is enough evidence to support the existence of a relevant site within a particular area.
Now that I have determined that there are sites of particular significance on the tenement area, I need to turn my attention to the issues of the question of the presumption of regularity and the adequacy of the protective regime put in place under the relevant legislation to make any interference with sites of particular significance unlikely. The Government party has relied on various sections of the AHA to contend that the grant of the proposed tenement is unlikely to interfere with areas of sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal, most recently in Maitland Parker at [31]–[38], [40]–[41]. The Tribunal will give due weight to the protection regime and the presumption of regularity but each case must be assessed on its particular facts. The grantee has addressed the issue of how it would avoid interference with sites in the tenement area in its affidavits and contentions in a comprehensive manner. A good deal of this material has already been referred to in the previous discussions in relation to s 237(a) of the Act, in [47]–[50] above. That evidence needs to be borne in mind when considering the additional evidence which I have discussed in this section.
At [54] of the grantee’s contentions, the grantee asserts that:
‘Nevertheless, the joint venturers recognise that:
54.1 the existence of sites of significance is not always known and that diligent precaution need to be taken to minimise the risk of proposed operations interfering with the same;
54.2 the participation of traditional owners in heritage surveys is an invaluable aid in seeking to minimise such risk;
54.3 despite….
accordingly, Grantee Party intends to take such measures as a reasonably open to it in order to seek to minimise the risk of infringing the provisions of the Heritage Legislation inadvertently. (see Hutton affidavit 34-35 and 49-51, and the Kennedy affidavit 16–19, 26, 30–34, 39–40’.
As discussed in paragraph 52 above, in [17] and [18] of the grantee’s contentions, the grantee party states that it intends to work cooperatively with the traditional owners of the land regardless of whether there is a formal agreement in place and fully cooperate with the native title party to avoid acting in a manner which could breach the AHA. Further at paragraph [19], the grantee party contends that it intends to respect the wishes of the native title party ‘to explore every possible avenue reasonably and commercially open to them to accommodate the wishes and desires of the Native Title Party’, while at the same time, not wanting ‘to pursue an exploration endeavour where Native Title Party may unilaterally and free from challenge deny them the fruits of their endeavour’. At paragraph [20] of their contentions, the grantee warrants that they are aware of their obligations under the heritage legislation and fully intends to comply with them. Further, at contention [21] (which is repeated in the affidavit of Kennedy at [27]), the grantee says it: ‘will strain to avoid interference with sites of significance of which they have knowledge, whether by virtue of such sites being registered in the register maintained under the Heritage Legislation, advice from the native title party or otherwise’, but subject always to their rights to seek leave to disturb such sites pursuant to the AHA.
Mr Thomas, in his affidavit at [20], deposes to the fact that he has:
‘repeatedly advised Grantee Party and it is well aware and accepts that it must continue to seek to both consult with Native Title Party and secure Native Title Party’s participation in inspections and surveys with a view to ensuring that the objects of the Heritage Legislation are fulfilled and not inadvertently breached’.
Mr Hutton at [35] states that he intends to ‘take advice from an appropriately experienced anthropologist in relation to the requisite measures to be adopted to seek to minimise the risk of inadvertently interfering with the interests and sensitivities of the Native Title Party’. Earlier, at [29] he indicates he believed that there was a site of significance near the spring at the north end (i.e. Jilgara) and then goes on to say ‘the spring area is a likely place for use as a camp site as it is shady but there is no reason to use it if it is a site of significance; it can easily be avoided by the Joint Venturers’. In paragraphs 36–48, Mt Hutton outlines a long history of interaction with the mining industry, the Kimberley and Aboriginal people, including in his pearling venture. From [60]–[64] of his affidavit, Mr Hutton discussed the question of the preferred model for the conduct of heritage surveys, indicating a preference for a work area clearance, rather than a work program clearance, which requires there to be new surveys conducted on the same area, on each occasion a new program of exploration is to be conducted. Mr Hutton at no point in that discussion dissents from the view that it is important that a survey be conducted. The question that he is concerned with relates to the methodology to be employed during the conduct of the survey and not a question of whether the survey itself should be carried out.
Mr Kennedy in his affidavit deposes the fact that the grantee party is well aware that there are many sites of significance which are not recorded on the register and, at paragraph 17, says that the grantee recognises that the best way of avoiding unintentionally infringing the provisions of the Heritage Act is to have the assistance of the traditional owners to identify the sites that ought to be protected by the Act. At [26], Mr Kennedy says that the grantee party wishes to meet personally with the native title party and believe that they would be able, in face-to-face meetings, to negotiate an agreement which would accommodate all the concerns of the native title party. Further at paragraph 27, as has been referred to earlier, he states that the grantee party would ‘strain to respect the wishes of the Gooniyandi mob’. Between paragraphs 30 and 34, Mr Kennedy makes the point that the grantee has already demonstrated by virtue of the invitation it issued in relation to the conduct of the survey on the granted tenement, that even where it is not required under the terms of the Native Title Act or the AHA to conduct surveys, it is prepared to do so. Mr Kennedy emphasised that even where it could have proceeded to conduct the work, after the invitation was rejected, it did not do so for several reasons including deference to the Gooniyandi and inability to be completely convinced that the area was free of sites. Mr Kennedy deposes to the fact that he has assured himself that the grantee and its various directors and employees understand that it is necessary to work with traditional owners on a good neighbourly basis and be supportive of preservation of Aboriginal traditions and respecting Aboriginal cultural sensitivities.
At paragraph 40(d), Mr Kennedy deposes that the grantee:
‘would very much like to and, as far as it is proper, will continue to seek to, consult directly with Gooniyandi but to date contact with Gooniyandi has been mostly indirect through the KLC in recognition of KLC’s representations that it acts for, and contact with, Gooniyandi should be through KLC’.
It is a little unclear as to whether the grantee intends to continue to discuss these matters with the Gooniyandi if they persist in insisting that they are represented by the KLC. If that is the case, it would be unfortunate. I assume on the basis of the qualification ‘as far as it is proper’ that they will in fact continue to conduct discussions through the native title party’s legal representatives for as long as the native title party requires them to do so.
I also refer to paragraph 50 above, in which there is a discussion in relation to the question of the grantee’s intentions concerning the exploration program which they intend to conduct on the tenement area and how that program relates to the intended exploration activities to be conducted in the granted tenement.
In recent times, the Western Australian government has updated its version of the Guidelines for Consultation with Indigenous People by Mineral Explorers, for Mineral and Petroleum Exploration which is forwarded to all grantees with exploration licences, and indeed, amended the AHA to increase penalties, amongst other things. The government has also instituted Regional Standard Heritage Agreements, which are commonly used in other parts of the State, but are not relevant to this matter.
The Tribunal has articulated its position in relation to these developments, most recently in Linda Champion on behalf of the Central West Goldfields People/WA/Vosperton Resources Pty Ltd (2005) 190 FLR 362, 1 February 2005, per Sumner DP. In essence, Deputy President Sumner found the revised guidelines and increased penalties increased the effectiveness of the government parties’ regulatory regime for the protection of Aboriginal sites. However, that the Tribunal will continue, in any particular case, to have regard to the evidence presented before determining that the protective regime is sufficient to make it unlikely that here would be interference with sites of particular significance which had been found to exist (see [69]–[72]). I respectfully agree with those conclusions, and in this matter—while I take into account the impact of the AHA and other protective measures taken by the Western Australian government—it remains a matter of fact as to whether that regime will work effectively to make any disturbance of sites of particular significance unlikely. Crucial, in my view, to making that assessment is the question of the position adopted by a grantee party who does not have an agreement with the native title party in relation to protection of heritage.
The government party contends that the Tribunal is bound by the decision of Nicholson J in Little v Western Australia [2001] FCA 1706 at 70 to the effect that the protective provisions of the AHA make the chance of interference with sites of significance remote. In Little, Nicholson J commented to the following effect (referring to section 16, 17 and 18 of the AHA):
‘For the applicants it is submitted, therefore, that the Aboriginal Heritage Act does not provided unqualified protection in these provisions but merely makes it an offence to damage sites contrary to the Act. Furthermore, the power of the Minister under s 18 to remit a breach of s17 may occur in circumstance where a native title party has no right under the Act to make submissions to the Minister. Nevertheless, I do not consider it can be said it is likely such interference would occur given the protective effect in sections in the Aboriginal Heritage Act. In other words, the chance of such interference is not real and is remote in those circumstances.’
The Tribunal has considered this question on numerous occasions, most recently Deputy President Sumner, in Maitland Parker at 35, in making reference to a number of cases said:
‘The Tribunal has always given significant weight (as it must) to the finding but does not interpret it as meaning that in all cases the protective regime will be adequate to make the s 237(b) interference unlikely…Each case must be considered on its particular facts. What is clear is that the Tribunal is entitled to have regard and give considerable weight to the Government party’s site protection regime.’
I agree with those comments and adopt them for the purposes of this determination.
In recent years, the Tribunal has considered very similar matters on a number of occasions. In addition to the Maitland Parker case referred to in paragraph 80, I refer to Paddy Neowarra on behalf of Wanjina/Wnggurr/Wilinggin/Wilfred Byuneck & Ord on behalf on Uunguu/Western Australia/Swan Cove Enterprises [2007] NNTTA 11 per DP Sumner; Mark Lockyer per Member Sosso; Wobby Parker & Ors on behalf of Martu Idja Bunyjma People/Western Australia/Pilbara Iron Ore Pty Ltd [2006] NNTTA per Member O’Dea; Miriuwung Gajerrong No 1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seawood Holdings [2006] NNTTA 74 per DP Sumner; Wilfred Hicks Woong-goo-tt-oo people/ Western Australia/Geotech International [2006] NNTTA 63 per DP Sumner; Banjo Wurrunmurra & Ors on behalf of Bunuba; Butcher Cherel & Ors on behalf of the Goondiyandi Native Title Claimants/Western Australia/ Wasse Stewart Askins [2005] NNTTA per DP Sumner; Cheinmora Dolores & Ors on behalf of the Balanggarra Native Title Claimants/Herron Resources Ltd/Western Australia [2005] NNTTA 99 per Member O’Dea; and Dora Sharp & Ors on behalf of the Gooniyandi Native Title Claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia [2004] NNTTA 31 per Member O’Dea.
Those cases are the source of a number of observations from the various members concerned, which are relevant to consideration of the question of the likelihood of interference in circumstances of this kind. In Neowarra, DP Sumner observed that in the circumstances of proceedings of this nature, where information in relation to sites of significance which are not on the register, is put before the grantee party in the course of those proceedings, the grantee party’s recourse to a s 62 defence is effectively nullified: ‘Knowledge of these sites means that the grantee party will be unable to avail itself of the defence in s 62 of the AHA, when charged with an offence under it’ (at [27]). In that matter there was no evidence before the Tribunal, as to the grantee’s attitude towards compliance with the AHA. Nevertheless, the Tribunal determined that despite the fact that the grantee party had engaged in ultimately unsuccessful negotiations with the native title party in relation to a heritage agreement, the Tribunal could infer on the balance of the evidence that the grantee party was aware of its responsibility to comply with the AHA and that any risk of interference was remote.
In the Banjo Woorroomarra matter, DP Sumner was confronted again with a situation where the grantee party had not submitted any evidence, albeit that it was clear that the parties had attempted to reach an agreement by negotiation prior to the matter coming to determination. The grantee party in that matter had indicated that they were willing to sign an Aboriginal heritage agreement but not prepared to execute one in the form presented by the native title party. In the circumstances, DP Sumner decided, given that the grantee party had provided no indication of its intended manner of exploration, that there was a likelihood of interference even though he was satisfied the grantee party was aware of its responsibilities under the AHA (see [33]).
In Miriuwung Gajerrong matter the grantee party had not submitted any evidence on its behalf, but there was evidence that there had been attempts to reach agreement in relation to heritage protection prior to the matter going to determination. DP Sumner was satisfied that the grantee party was aware of his responsibilities under the AHA but, having not given any indication of the manner in which it intended to conduct its exploration, he found that there was a real risk of interference with the sites even if such interference was inadvertent (see [45]–[46]).
Further, in the Hicks matter, it was clear that the grantee party was prepared to execute a Regional Standard Heritage Agreement, and that the negotiations had broken down not over a disagreement relating to the need for heritage protection, but the manner of its achievement. DP Sumner came to the conclusion that he was satisfied that the protective regime meant that there was no real risk of interference. He noted, in particular, that the grantee party was now aware of sites on the register and aware of concerns about sites which were not on the register but had become apparent as a result of the proceedings (at [29]).
In Mark Lockyer, Member Sosso found that there was not likely to be interference with sites of significance in circumstances where the information provided by the grantee party was limited, albeit, that it had contended that ‘it is bound by, and commits to observe fully, the provisions of the Aboriginal Heritage Act 1972’ (at [56]). In that matter, the parties had attempted to reach an agreement but had failed to do so. In the circumstances, Member Sosso found that there were no sites of significance, however, he concluded that if there had been, he was of the view that the presumption of regularity would have ensured that no interference would have occurred (at [60])
In Wobby Parker, I note at [44], that the willingness of a party to enter into a heritage agreement, that is unacceptable to the other, is not sufficient in itself to conclude that there is not likely to be interference with sites of significance. Further I note there that the Tribunal has determined that there is likely to be interference with sites, on a number of occasions, while noting the attempts and willingness of the grantee party to enter heritage agreements to deal with site identification and protection, albeit not one acceptable to the native title party (see paragraph 44 and the cases referred to therein). I also note at [45] in that matter, that the particular case could be distinguished from Banjo Wurrunmurra, Miriuwung Gajerrong No 1 and Dora Sharp, on the basis that in those matters there had been no agreement, or no undertaking to enter any agreement given, and the only protective mechanisms available were the presumption of regularity and Aboriginal heritage protection requirements of the State.
In Dolores Cheinmora, I concluded, albeit in relation to s 237(a), that the uncontested fact that the grantee party had indicated a willingness to enter into an agreement, the content of which was annexed to an affidavit, was sufficient for me to find that it was unlikely that there would be interference (see [36]).
The question of whether interference with the sites of particular significance on the tenement area is unlikely in these circumstances rests on a careful balancing of the evidence before me. On balance, I have reached the conclusion that there is no real risk of interference with the sites of particular significance to the native title party. If I had not had the benefit of the sworn evidence of the grantee’s deponents concerning the manner in which they intended to conduct the exploration program in relation to the proposed licence, and the steps they intended to take in order to address the issues raised by the native title party in relation to ss 237(a) and 237(b), I would not have been satisfied that the risk was remote, and indeed, it may well have been real. After reaching the conclusion that the protective regime of itself was insufficient to render the risk remote, I had to consider whether the undertakings and indications given by the grantee party, unenforceable in any contractual sense, were sufficient to render a real risk remote. The native title party contended at paragraph 19 (as I have set out earlier in paragraph 61 above) that is was incumbent on the grantee to lead evidence of the basis on which the Tribunal can be assured interference, intentional or otherwise, is not likely, given the practical difficulties of locating and/or avoiding sites. I am not convinced that this proposition is an accurate statement of the relevant law but, in any event, I am satisfied that the grantee party has met the burden attributed to it. Having considered the way in which the Tribunal and the Federal Court have dealt with these matters in the past, and on the basis of the sworn evidence of the grantee party in relation to both their exploration intensions and risk minimisation strategies, I have come to the view that there is no real likelihood that these sites will be interfered with, by this grantee.
Consequently, s 237(b) is not attracted.
Major disturbance to land or waters (s 237(c))
Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon the grant of the licence are likely to involve major disturbance to land or likely to create rights whose exercise are likely to involve major disturbance to land. The Tribunal accepts the law as enunciated by the Full Federal Court in Dann v Western Australia (1997) 74 FCR 391 and, more recently, in Little & Ors v Oriole Resources Pty Ltd (2005) FCAFC 243. The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian Community, including the Aboriginal community, as well as taking into account the concerns of the native title party. As was put in Silver in the Northern Territory (2002) 169 FLR 1, the likelihood of major disturbance is to be considered from the viewpoint of the general community but regard should also be had to the perspective of the local community and to recognise, and factor into the analysis, cultural differences, particularly as they pertain to the laws and customs of the claimant group.
The native title party contends that the incidents of the grant of an exploration licence under the Mining Act 1978 WA permit activities including: reverse circulation drilling, diamond drilling, excavation of a 1000 tonnes of material, creation of exploration tracks, drill pads and the excavation of minerals. Consequently, in their view, the creation of those rights even in circumstances where the grantee party has indicated that it does not intend to exercise those rights to the full, is sufficient to found a determination by the Tribunal that the grant of the tenement will amount to major disturbance. The evidence of Mr Dawson, under the heading Major disturbance to land and waters, essentially continues to address his perception of the likely impact of the grant of the tenement on the area in the context of the conduct of social and community activates and from the point of view of the protection of sites of particular significance. It also contains the final three paragraphs which have been quoted at paragraph 58 above where Mr Dawson states his concerns about the activities associated with the grant of the tenement. Mr Street similarly largely reiterates the concerns which had been expressed in relation to community and social activities and sites of particular significance, without giving any evidence, that I can ascertain, which advances an argument that any of the activities authorised by the tenement, or rights created under the grant of the tenement, will lead to a major disturbance.
In these circumstances I conclude that there is simply insufficient evidence to establish any potential major disturbance, or any disturbance over and above the matters which have previously been discussed in relation to the first two limbs of s 237.
Consequently, s 237(c) is not attracted.
Determination
The determination of the Tribunal is that the grant of Exploration Licence E80/3266 is an act attracting the expedited procedure under the Act.
Daniel O’Dea
Member
1 March 2007
110
11
0