Butcher Cherel & Ors on Behalf of Gooniyandi Combined #2/George Brooking & Ors on Behalf of Bunuba #2/Banjo Wurrunmurra & Ors on Behalf of Bunuba/Mervyn Street & Ors on Behalf of Yarrangi Riwi Yoowarni..
[2013] NNTTA 137
•6 September 2013
NATIONAL NATIONAL NATIVE TITLE TRIBUNAL
Butcher Cherel & Ors on behalf of Gooniyandi Combined #2/George Brooking & Ors on behalf of Bunuba #2/Banjo Wurrunmurra & Ors on behalf of Bunuba/Mervyn Street & Ors on behalf of Yarrangi Riwi Yoowarni Gooniyandi/Western Australia/Carnegie Exploration Pty Ltd
[2013] NNTTA 137 (6 September 2013)
Application Nos: WO2012/1144, WO2012/1145, WO2012/1146, WO2013/0191
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Butcher Cherel & Ors on behalf of Gooniyandi Combined #2 (WC2000/010)/Gooniyandi Aboriginal Corporation (WCD2013/003) (WO2012/1144)
(Gooniyandi Native Title Party)
- and -
George Brooking & Ors on behalf of Bunuba #2 (WC2012/004) (WO2012/1145) (Bunuba #2 Native Title Party)
-and-
Banjo Wurrunmurra & Ors on behalf of Bunuba (WC1999/019)/Bunuba Dawangarri Aboriginal Corporation (WCD2012/006) (WO2012/1146)
(Bunuba Native Title Party)
- and -
Mervyn Street & Ors on behalf of Yarrangi Riwi Yoowarni Gooniyandi (WC2012/010) (WO2013/0191) (Yarrangi Riwi Yoowarni Gooniyandi Native Title Party)
-and-
The State of Western Australia (Government party)
- and -
Carnegie Exploration Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 6 September 2013
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to involve major disturbance to land or waters - expedited procedure attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 146, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA) s 66
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker’)
Parker v Western Australia and Others (2008) 167 FCR 340 (‘Parker 2’)
Smith v Western Australia [2001] FCA 19 at [23]; (2001) 108 FCR 442 (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Representatives of the Ms Danica Trewern, Kimberley Land Council
native title party: Mr Glenn Archer, Kimberley Land Council
Ms Barbra Friedewald, Kimberley Land Council
Representatives of the Ms Caitlin Martin, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum
Representatives of the Mr Greg Abbott, M & M Walter Consulting
grantee party:
REASONS FOR DETERMINATION
On 17 October 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2218 (‘the proposed licence’) to Carnegie Exploration Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence is approximately 276 square kilometres in size, located 12 kilometres north of Fitzroy Crossing in the Shire of Derby–West Kimberley. The proposed licence overlaps:
· the Gooniyandi Combined #2 native title determination (WCD2013/003 – determined on 19 June 2013) by approximately 1.5 per cent;
· the Bunuba #2 native title claim (WC2012/004 – registered from 10 May 2012) by approximately 20.4 per cent;
· the Bunuba native title determination (WCD2012/006 – determined on 12 December 2012) by approximately 24.2 per cent;
· the Bunuba native title claim (WC1999/019 – registered from 20 August 1999) by approximately 40.4 per cent; and
· the Yarrangi Riwi Yoowarni Gooniyandi native title claim (WC2012/010 – registered from 15 February 2013) by approximately 2.4 per cent.
No other native title claims or determination areas overlap the proposed licence area.
The following expedited procedure objection applications were made to the Tribunal in relation to the proposed licence:
| Date of objection | Native title party | Tribunal objection number |
| 19 October 2012 | Butcher Cherel & Ors on behalf of Gooniyandi Combined #2 (WC2000/010) | WO2012/1144 |
| 25 October 2012 | George Brooking & Ors on behalf of Bunuba #2 (WC2012/004) | WO2012/1145 |
| 25 October 2012 | Banjo Wurrunmurra & Ors on behalf of Bunuba (WC1999/019) | WO2012/1146 |
| 15 February 2013 | Mervyn Street & Ors on behalf of Yarrangi Riwi Yoowarni Gooniyandi (WC2012/010) | WO2013/0191 |
On 12 December 2012, a portion of the Bunuba claimant application was determined by consent. Accordingly, the Bunuba Dawangarri Aboriginal Corporation (BDAC) Registered Native Title Body Corporate (RNTBC) replaced the registered Bunuba claimant as the native title party in these proceedings where the proposed licence overlaps the determination area. On 19 June 2013, the Gooniyandi Comined #2 claimant application was detemined by consent. Accordingly, the Gooniyandi Aboriginal Corporation (GAC) RNTBC replaced the Gooniyandi Combined #2 claimant as the native title party in these proceedings.
Parties will be referred to as the Goonyandi and Bunuba native title parties respectively, or collectively as the ‘native title parties’, as appropriate.
In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Following a period of negotiations, the grantee party requested all matters proceed to determination by the Tribunal. Direction dates were aligned for all matters.
In accordance with final directions, the Tribunal received the following documents:
·the Government party’s supporting documents on 18 June 2013 (WO2012/1144-1146) and 22 April 2013 (WO2013/0191);
·the Gooniyandi Combined #2 (GAC RNTBC) native title party’s statement of contentions on 29 April 2013 (WO2012/1144);
·the Bunuba #2 native title party’s statement of contention on 17 June 2013 (WO2012/1145);
·the Bunuba (BDAC RNTBC) native title party’s statement of contentions on 17 June 2013 (WO2012/1146);
·the Yarrangi Riwi Yoowarni Gooniyandi native title party’s statement of contentions on 1 May 2013 (WO2013/0191);
·the affidavit of Ms June Davis, affirmed on 22 April 2013 (WO2012/1144, and WO2013/0191)
·the affidavit of Ms June Oscar, affirmed on 14 June 2013 (WO2012/1145);
·the affidavit of Ms June Oscar, affirmed on 11 June 2013 (WO2012/1146);
·the grantee party’s supporting documents on 24 June 2013 (WO2012/1144-1146, WO2013/0191);
·the Government party’s statement of contentions on 1 July 2013 (WO2012/1144-1146, WO2013/0191).
On 8 August 2013, the Tribunal sent all parties a copy of a map dated 1 August 2013 and indicated that it would be relied upon for the determination of this matter. No objections to this course of action were received.
I was appointed as the Member for the purposes of conducting the enquiry on 26 August 2013 by President Webb.
Section 151(2) of the Act provides that the Tribunal may proceed to determine a matter ‘on the papers’ (that is, without a hearing) unless the issues for determination cannot be adequately determined in the absence of the parties. I have considered the documents and material provided by the parties and I am satisfied that this matter can be determined in this way.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker at [31]–[38], [40]-[41] (see also Parker and Parker 2).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little, in particular [588]-[589]).
Evidence in relation to the proposed act
The Government party has provided: a statement of contentions; tengraph plans with topographical details, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; reports and plans from the Register of Aboriginal Sites maintained by the Department of Aboriginal Affairs (DAA – formerly the Department of Indigenous Affairs); copies of the tenement application; copies of the proposed endorsements and conditions of grant; the instrument of licence; and a tengraph quick appraisal.
Government party documentation establishes the underlying land tenure of E04/2218 includes:
· PA67 exploration permit application (STP-EPA-0044) at 0.2 per cent;
· PA67 exploration permit (EP 453) at 85.8 per cent;
· Two conservation parks – (43100) at 4.4 per cent and (43101) at 18.3 per cent;
· Vacant Crown Land at 1.4 per cent;
· Four Pastoral Leases – 3114/1248 (Fossil Downs) at 5.2 per cent; 3114/573 (Brooking Springs) at 60 per cent; 3114/930 (Jubilee Downs) at 2 per cent; and 398/810 (Gogo) at 8.6 per cent; and
· Two Road Reserves both at less that 0.1 per cent.
Government party documentation also indicated that the area is designated as a Surface Water Area and a Groundwater Area proclaimed under the Rights in Water and Irrigation Act 1914 (WA) and managed by the Department of Water.
Documentation establishes that E04/2218 has previously been overlapped by 23 exploration licences, granted between 1982 and 2012 (with between 97.8 per cent overlap and less than 0.1 per cent overlap), all surrendered, forfeited, expired or withdrawn between 1983 and 2012; two mining leases, granted in 1992 and 1993 (overlapping at 2.5 and 3 per cent respectively), surrendered in 1994 and 1995; a large number of mineral claims, granted between 1972 and 1982 (with between 0.4 per cent overlap and less than 0.1 per cent overlap), all now surrendered or cancelled; and one temporary reserve, granted in 1920 overlapping at 100 per cent and cancelled in 1921.
The quick appraisal document shows that services affected include 12 major Non-Perennial watercourses (including Margaret River, Fitzroy River and Homestead Creek); 25 springs/soaks/rockholes/waterholes; various prospect outcrops; 25 tracks; two fences; and two airfield runways.
The report from the DAA Database shows there are five sites registered under the Aboriginal Heritage Act 1972 (WA) (AHA) within the proposed licence:
·Margaret River 1 – Site ID 12457 – open access – no gender restrictions – artefacts/scatter - rockshelter;
·Margaret River 2 – Site ID 12458 – open access – no gender restrictions – artefacts/scatter – other: infilled fissures;
·Fitzroy River – Site ID 12687 – open access – no gender restrictions – mythological;
·Oscar Range – Site ID 12700 – open access – no gender restrictions – painting, artefacts/scatter – archaeological deposit, water source, other ;
·Oscar Range – Site ID 12701 – open access – no gender restrictions – painting.
Tribunal mapping indicates there are no Aboriginal communities located upon the area of the proposed licence.
A draft tenement Endorsement and Conditions Extract for the proposed licence included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). The proposed licence will also be subject to five further conditions:
5. The licensee notifying the holder on any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6. The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the licence; or
· registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or any grazing lease details of the grant of transfer.
7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Conservation Parks 43100 and 43101.
8. No interference with Geodetic Survey Stations L2 and T215, and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9. No interference with the use of Aerial landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1. The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
3. The licensee attention is drawn to the provisions of the:
· Waterways Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
· Metropolitan Water Supply, Sewerage and Drainage Act, 1909
· Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007.
4. The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
5. The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
6. The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
7. Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·50 metres from the outer-most water dependent vegetation of any perennial waterway, and
·30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water Areas (Fitzroy River and Tributaries) the following endorsements apply:
8. The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
9. All activities to be undertaken with minimal disturbance to riparian vegetation.
10. No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.
11. Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:
12. The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.
The Government party states the grantee party’s statement of contentions, indicates that it will not exercise the full suite of rights conferred on it by s 66 of the Mining Act. However, I could see nothing in the grantee party contentions that indicated this state of affairs. Rather, the grantee party outlined the exploration activities it intends to do in year one and two, and nothing further than that.
Evidence provided by all parties in relation to the Gooniyandi #2 and the Yarrangi Riwi Yoowarni Gooniyandi objections were almost identical, and any differences are commented on as needed. Evidence provided in the Bunuba and Bunuba #2 objections were also almost identical and again, any differences are commented on as needed.
Evidence and Submissions provided by the native title parties
The submissions of the native title parties included:
·the affidavit of Ms June Davis, affirmed on 22 April 2013 (WO2012/1144, and WO2013/0191); and
·the affidavit’s of Ms June Oscar, affirmed on 11 and 14 June 2013 (WO2012/1146 and WO2012/1145). I note that these two affidavits were almost identical, so only one is reproduced in this determination.
The affidavits of Ms Davis and Ms Oscar are annexed to this determination at attachments A and B respectively.
The evidence of Ms Davis and Ms Oscar is uncontested and I accept it. Ms Davis states that she is a Gooniyandi woman and can speak for the country through her father’s family. Ms Davis also states she is one of the senior people for Gooniyandi Combined #2 and has authority under Gooniyandi law to speak about land matters. Ms Oscar states she is one of the senior people for Bunuba and a named applicant for Bunuba #2. Ms Oscar states she was elected as the inaugural chairperson of the Bunuba Dawangarri Aboriginal Corporation and has ‘authority on behalf of the Bunuba people to talk about these matters affecting Bunuba country’. I accept that Ms Davis and Ms Oscar have authority to speak on behalf of the respective native title parties.
Evidence and Submissions provided by the grantee party
The submissions of the grantee party for each objection included a statement of contentions; reports and plans from the Register of Aboriginal Sites maintained by DAA; a tengraph quick appraisal for the proposed licence; a map of the relevant claim/determination area showing registered Aboriginal sites, and a statement outlining proposed exploration activity (annexed to this determination as attachment C). The relevant detail of the grantee party materials are referred to as relevant under each limb of s 237 of the Act.
Section 237(a) Community and Social Activities
The Gooniyandi native title party contentions outline that members of the native title party, within the proposed licence area:
Belong to the country (referring to paragraphs 5, 7, 8 and 14 of Ms Davis’ affidavit);
Live, camp and conduct community life (referring to paragraphs 10-28 of Ms Davis’ affidavit and in particular paragraphs 12 and 13, which indicate the native title party ‘use to camp out in the tenement area for a couple of months every year’ (at 16c of the Gooniyandi native title party contentions), and that they go ‘out the tenement area every weekend’ (at 16d of the contentions);
Hunt and fish (referring to paragraph 18 and 19 of Ms Davis’ affidavit, specifically referring to land goanna, water goanna, kangaroo, wild pig, barramundi, long neck turtles, short neck turtles, brim, catfish, swordfish and stingray);
Visit country and collect traditional foods and products (referring to paragraph 16 and 17 of Ms Davis’ affidavit and specifically to bush passionfruit, bush melon, bush cucumber, plums, witchetty grub, bush grapes and wild figs, and that they cook and prepare food out on the tenement area (at 16h of the contentions and referring to paragraphs 21-22 of Ms Davis’ affidavit));
Look after Aboriginal sites of importance and significance;
Teach the young people about Gooniyandi culture, traditional knowledge and language on the proposed licence are (referring to paragraphs 24-26 of Ms Davis’ affidavit).
The Bunuba native title party contentions stated that the native title party, within the proposed licence area:
Belongs to country (referring to paragraph 12 of Ms Oscar’s affidavit);
Live close to the proposed licence area (referring to paragraph 11 of Ms Oscar’s affidavit);
Conducts their community regularly (referring to paragraphs 13-18 and 20-23 of Ms Oscar’s affidavit) – Ms Oscar states that an endangered Wallaby (Wirirru) needs to be preserved;
Hunt and fish for black bream and wallaby (referring to paragraphs 18 and 21 of Ms Oscar’s affidavit) – Ms Oscar states that the Spinifex and bush medicine needs to be preserved;
Visit country and collect traditional food and products, for example bush medicine such as Spinifex wax as well as bush fruits and nuts (referring to paragraphs 22, 23 and 24 of Ms Oscar’s affidavit);
Make objects from products collected in the proposed licence area, such as using Spinifex wax to fasten axe and spear heads to wooden handles (referring to paragraph 23 of Ms Oscar’s affidavit)
Teach young people about culture and traditional ways (referring to paragraphs 27 and 34 of Ms Oscar’s affidavit).
Ms Oscar’s affidavit refers to a number of Aboriginal communities near the proposed licence, however, nothing is made of this in the native title party contentions and without further detail it is not clear whether those communities are the ones where members of the native title party reside and use the proposed licence for community and social activities. Ms Oscar also refers to an area near Peter’s Bore, which is on a southern border of the proposed licence, but there is no indication of how often this area is used by the native title party.
The grantee party provided an exploration programme in support of their contentions and state that in relation to s 237(a), there will not be interference with community and social activities of the native title parties because:
The grantee party will not exclude any community activities upon the tenement ‘unless during a particular activity it is considered temporarily unsafe for the conduct of community activities’ (at 1.1), and the grantee party will consult with the community should it be deemed unsafe;
The grantee party will notify the native title parties ‘prior to any exploration activities likely to restrict the gathering of bush tucker, medicines, fishing and hunting of game... to minimise any disturbance’ (at 1.3);
The area of the native title parties claims and determinations is large in comparison with the proposed exploration licence;
I am unclear about what mechanism will be used to so consult and notify the native title party, nevertheless, the grantee party has made this public undertaking and I have no evidence before me to suggest they will not do so.
In relation to s 237(a) of the Act, the Government party accepts, based on the affidavit evidence of both native title parties, that the following community and social activities are carried out on in the proposed licence area:
accessing the area;
hunting and fishing;
collecting bush medicine;
For the Gooniyandi native title party, the Government party accepts cooking and preparing food also occurs on the proposed licence. For the Bunuba native title party, the Government party accepts collecting bush fruit and nuts occurs within the proposed licence.
The Government party does not accept that the following are community or social activities of the native title parties:
belonging to country;
passing of intergenerational knowledge between members of each native title party;
the responsibility to look after country; or
current camping on the proposed licence.
I accept these Government party contentions apart from two exceptions. Firstly, I do not agree with the contention suggesting that the passing on of intergenerational knowledge between members of each native title party is not a community or social activity. Such an activity has been recognised as being a community and social activity in Tribunal decisions and I accept that such is a part of native title party traditions and their community and social activities. Secondly, while Ms Davis and the Gooniyandi contentions do refer to past camping on the area, they also state members of the native title party go out to the area ‘every weekend’ and that they ‘camp for the day’. So I accept that some current activity, which likely includes camping, occurs in the present day.
The Government party states there is not likely to be direct interference with community and social activities because:
The grantee party activities will be low impact and non-obtrusive and any ground disturbing activities ‘are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns’ (at 44/45a).
There has been significant prior exploration and possible mining activity.
The area is almost entirely covered by pastoral leases and any native title party activities have coexisted with these pastoral activities.
There are no Aboriginal communities within the proposed licence area.
The grantee party intends to conduct their activity with cultural sensitivity and maintain good relations with the native title party (at 44/45e).
Hunting and mineral exploration can coexist.
I accept that the native title parties conduct social and community activities in their claim and determination areas which also includes the proposed licence area. I note that Ms Davis states that the exploration licence area falls wholly within Gooniyandi country, however, the percentage overlap analysis indicates that approximately 4 per cent of the proposed licence falls over Gooniyandi claims and determined areas, with the remainder largely covered by Bunuba claims and determined areas. There is nothing in the affidavit material or the native title party contentions to suggest that the proposed licence contains unique features so that certain community and social activities can only be conducted in that area. I note the existence of special men’s and women’s areas (as discussed under s 237(b)), but there is no evidence to indicate how these are related to social and community activities. In addition, I note the history of exploration on the proposed licence over the past 30 years, the pastoral leases which overlap the proposed licence, and the many number of tracks which already exist across the proposed licence. I also note the evidence that until recently, the native title party had difficulty accessing the area of the proposed licence covered by the largest pastoral lease (60 per cent).
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at 449-450). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
There is nothing indicating these activities can only be conducted on or near this proposed licence – for example, Ms Oscar states that ‘we find Wawanyi all over our country, including inside the tenement area’ (at 20). Ms Oscar’s evidence also indicates that there is no current impediment for the native title party in accessing the Brooking Springs pastoral area, but Ms Oscar states that Bunuba people have had difficulties in the past accessing that part of the proposed licence. She also states there is a fruit that grows in the area and states ‘it is the only type of plant that naturally occurs in the Oscar Range reef system’ (at 22). However, I am not sure how this correlates with the evidence that states various bush fruits and nuts and Spinifex occur on the proposed licences area and various bush tucker – it may be that these occur in parts of the proposed licence other than the Oscar Range reef system, but without further detail it is difficult for me to draw any firm conclusions. The previous activities on the proposed licence will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]). This evidence, as well as the fact that community and social activities can coexist with grantee party exploration activities, and the grantee party’s undertaking that they will exclude the native title party only if it is unsafe, and will notify the native title party of relevant activities, leads me to conclude there is not likely to be interference of the kind contemplated by s 237(a) of the Act in this matter.
Section 237(b) Sites of Particular Significance
The Gooniyandi native title party’s contentions state that, in relation to s 237(b), the proposed licence is site rich and that the Government’s regulatory regime is insufficient to protect sites on the proposed licence. They state the following are areas of particular significance to the native title party:
Ancestors remains (in the southern part of the proposed licence - referring to paragraph 30 of Ms Davis’ affidavit);
Rock paintings (in the southern part of the proposed licence - referring to paragraph 30 of Ms Davis’ affidavit);
Special man’s law, country, stories and places (in the southern part of the proposed licence - referring to paragraphs 30-32 of Ms Davis’ affidavit);
A sacred site (to the east of Margaret River - referring to paragraphs 31-32 of Ms Davis’ affidavit);
Special women’s places (near Boab Creek – a ‘very special area’ - referring to paragraph 34 of Ms Davis’ affidavit);
Many dreamtime stories close to or crossing over into the proposed licence area (around Fossil Downs - referring to paragraphs 33 and 35 or Ms Davis’ affidavit).
Ms Davis’ affidavit also indentifies:
A big rock like a chicken (at 32) whose location is not identified apart from being on the proposed licence area
Significant sites around Oscar Range (at 36)
In relation to these sites, I do not believe there is sufficient information for me to conclude that the ancestors remains, the rock paintings, the big rock like a chicken, and the sites around the Oscar Range are sites of particular significance. In relation to the sacred site that is said to exist to the east of Margaret River, I note that east of Margaret River is actually off the proposed licence area and without any further information I am unable to conclude that this is a site of particular significance on the proposed licence area. In relation to the special women’s places near Boab Creek, this also puts them off the proposed licence area as Boab Creek is to the east and so again without further information, I cannot say that this is a site of particular significance on the proposed licence area or that there is a nexus between it and the proposed licence area. In relation to the dreamtime stories around Fossil Downs, that also puts it off the proposed licence as Fossil Downs is to the south east of the proposed licence area and again without further information I cannot conclude that these are sites of particular significance existing within the proposed licence area. That applies also to the special man’s law, country, story and places which are said to be in the southern area of the proposed licence.
In relation to s 237(b), the Bunuba native title party’s contentions stated:
The proposed licence is in an area the native title party call their ‘river country' and there are a number of places and significant sites in the area (referring to paragraphs 12, 32 and 34 of Ms Oscar’s affidavit)
Rock art and cave paintings exist throughout the Oscar Range including in the proposed licence area (referring to paragraphs 27 and 30 of Ms Oscar’s affidavit and to Oscar Range – site 12701)
Skeletal remains of Bunuba people exist in the Oscar Range, including in the proposed licence area as a result of massacres in the region (referring to paragraph 33 of Ms Oscar’s affidavit)
The Fitzroy River itself (site 12687) is of mythological importance.
Artefacts/scatters exist on the area (referring to paragraph 27 of Ms Oscar’s affidavit and to Margaret River 1 and 2 and Oscar Range sites 12457, 12458 and 12700).
In relation to the skeletal remains, Ms Oscar does not outline why the remains in the proposed licence area of the Oscar Range are of particular significance as compared with the remains along the Oscar Range. She states that ‘there are many places in Bunuba country, including inside the tenement area, which have great significance’ (at 32). However, without more specific information it is difficult to conclude these area sites of particular significance and their location within the proposed licence area.
The grantee party states that its activities are unlikely to interfere with sites of particular significance to the native title parties because:
There have been two previous heritage surveys conducted in the Goonyandi native title party claim areas and several such surveys in the Bunuba native title party claim/Determination areas;
There is one registered site within the Gooniyandi Combined #2 claim and the proposed licence overlap, and two registered sites in the Bunuba native title party area. [I note, however, from Tribunal mapping, it appears there are 3 registered sites in the Bunuba claim/determination areas (the Oscar Range sites and part of the Fitzroy River) and two sites in the Gooniyandi determination area (the Margaret River sites). The grantee party is now on notice of the other registered sites and the sites Ms Oscar and Ms Davis have identified, including those in and near the Oscar Range, and those in the south east corner of the proposed licence].
They will comply with the AHA;
The grantee party will execute the Pilbara Regional Heritage Agreement if requested by the native title parties;
The grantee party has never been prosecuted under the AHA.
In relation to s 237(b), the Government party states that Ms Davis identifies: burial bones in caves; rock paintings in caves; special men’s places (in the southern part of the exploration licence area, north of the Boab River); special men’s ceremony and law story places; a sacred site on the edge of the island on the east side of Margaret River; a big rock like a chicken; a special women’s place around Boab Creek; and dreamtime stories including around Fossil Downs. The Government party states that Ms Davis describes these as special places, which does not necessarily mean they are sites of particular significance. I note, however, it is for the Tribunal to determine whether a site is of particular significance, and a native title party not using that phrase does not necessarily mean the site is not of particular significance.
The Government party states that Ms Oscar identifies: rock art and cave paintings throughout the Oscar Range including in the proposed licence area; skeletal remains located in the Oscar Range including in the proposed licence area; artefacts/scatters showing prior occupation and other significant sites. The Government party again states that describing them as significant sites ‘is not determinative of whether or not a site is a ‘site of particular significance’ within the meaning of Section 237(b) of the NTA’ (at 54). I repeat my observation in the above paragraph. The Government party also does not accept the area is site rich. The Government party does not indicate which sites of the native title parties it accepts as being of particular significance, if any.
The Government party does state that interference with any sites of particular significance is not likely because:
Some of the areas referred to in Ms Davis’ and Ms Oscar’s affidavits may not be in the proposed licence area (for example, paragraphs 33 & 35, and 27 & 30 respectively).
The grantee party is aware of the existence of the sites outlined in the affidavit materials.
The grantee party activities will mostly be low impact and ground disturbing activities will be conducted in a way that will not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns, including the ceremonial site.
The grantee party have stated they will comply with their legal obligations.
There has been prior mineral exploration and possibly mining activity and pastoral lease holdings and such activities would be no more significant than the grantee party’s intended use of the area.
The regulatory regime will mean there is unlikely to be interference.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
I note the Government party states the grantee party is aware of the existence of the sites outlined in the affidavit materials. However, I also note the grantee party’s comment that only three registered sites exist on the proposed licence when in fact five exist. As noted above, they are now on notice of these and other areas of importance to the native title party.
It is clear that Ms Davis and Ms Oscar have a great deal of knowledge about the proposed licence area and sites which are of significance to the native title parties. However, I conclude their representatives have not made out that any of these sites are sites of particular significance. In my view, the evidence about these sites lacks the precision required to enable the Tribunal to be satisfied that they are sites of particular significance, both in relation to their location and their relationship to the law and culture of the native title party.
The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at [39]; Cheinmora at [43]). I accept the native title parties’ contentions that there is a likelihood of sites existing in the proposed licence. However, the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of sites, or should such exist, that they are likely to be interfered with.
Section 237(c) Major Interference with Land or Waters
The Gooniyandi native title party contentions outline some broad concerns in relation to disturbance to land or waters, in relation to accessing country, rights to fishing, hunting and camping and various other activities which do not appear to specifically relate to disturbance to land or waters. In relation to s 237(c) the Bunuba native title party contentions are very broad and refer to the right to protect significant sites, care for country, and a number of other rights which do not appear to relate to major disturbance to land or waters. Specific paragraphs are referred to from the affidavits in support of these contentions. However, similar to the contentions, the affidavits are also fairly broad and provide little information or support about any special topographical, geological or environmental factors to lead any members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters.
The grantee party contends that there will be no such disturbance relevant to s 237(c) of the Act because:
Access to the proposed licence will be via Geikie Gorge Road and pastoral station tracks and they have provided a map which outlines those access points, although the map is somewhat unclear;
The grantee party will rehabilitate the relevant land;
They have outlined their proposed exploration activity;
There has been extensive previous mining activity over the area. [I do note there has been extensive exploration activity, and limited mining activity].
I note the grantee party’s proposed exploration programme focuses on base metal exploration including gold and other precious metal projects. The particular proposed licence area will be used for exploration of 'lead - zinc - silver' deposits and the grantee party programme includes: a complete geological review of the area, rock chip sampling, stream sediments sampling, reviews of previous geophysical surveys with electrical geophysical surveys likely to be conducted to screen for lead/zinc deposits within 200 metres of the surface. In the second year there is likely to be detailed geological mapping, infill geochemistry if required, drilling, and reporting.
The Government party states, in relation to s 237(c) of the Act, that the native title parties have not made out any major disturbance to land or waters, that is they have not made out any significant, direct physical disturbance of land or waters.
The Government party also states that the grant of the proposed licence is not likely to involve such major disturbance because:
The exploration activities will be conducted, according to the grantee party, in consultation with the native title party and in a way which not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns.
The State’s regulatory regime will be sufficient to avoid such major disturbance.
Any authorised disturbance may be mitigated by proposed endorsements and conditions.
The area has had prior exploration and possible mining activity, as well as pastoral leases
The area doesn’t appear to have any particular characteristics that would result in such major disturbance.
I accept the State’s regulatory regime includes endorsements which relate to the use of water on the proposed licence, that the area has been subject to prior exploration activity and some limited mining activity as well as pastoral leases. In the absence of any specific evidence supporting direct physical disturbance of land or waters in relation to s 237(c) of the Act, I conclude that it is unlikely that major disturbance to land and waters will occur in this matter.
Determination
The determination of the Tribunal is that the grant of Exploration licence E04/2218 is an act that does attract the expedited procedure.
Helen Shurven
Member
6 September 2013
ATTACHMENT A
AFFIDAVIT OF JUNE DAVIS
(IN RELATION TO WO2012/1144 AND WO2013/0191)
I, June Davis, linguist, of Muludja Community, in the State of Western Australia, affirm,
My name is June Davis. My Aboriginal name is Ningali.
I was born on 24 March 1956 on Fossil Downs.
My mother was a Bunuba woman who was born on Oscar range station. My mother moved to Fossil Downs before I was born. My grandmother, who knew the Oscar range country very well and was form there, moved to join her daughter at Fossil Downs.
I spent my childhood around the southern part of the exploration license area despite the northern part of the exploration license area being my mother’s country. When I went out to the Oscar Range in the top end of the exploration license area I was very sad that I had not been taught the Bunuba stories for that area since it is my grandparents country on my mother’s side.
Mr great grandmother on my father’s side was a Gooniyandi woman who was known as Moogoo or Maudie, she came from Gandiwal in the Yiminarra Range, from Fossil Station side of Gooniyandi country.
Even though I lost some of my Gooniyandi language when I went to school, Maudie told me all of the stories and I also learnt about the exploration license area directly from my father. I am a Gooniyandi woman and I can speak for the country of the exploration license area through my father’s family. I travelled through Gooniyandi country and I listened to Maudie and the old people’s stories, this is why other Traditional Owners often decide I am the best person to speak for parts of our country.
I am one of the senior people for the Gooniyandi Combined Native Title Determination Application (WC00/10). Under our Law I have authority to speak about land matters. I can talk about some of the exploration license area in relation to my Gooniyandi traditional and cultural understandings and in relation to my community’s use of the area.
I know the area where Carnegie Exploration Pty Ltd “the grantee party”, have applied for Exploration Licence Number E04/22018 “the exploration licence area” very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
The area is north-west of my community.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
I live at Muludja community which is less than 2km from the exploration license area.
The exploration licence area falls wholly within Gooniyandi country although some areas to the north may be contentiously Bunuba.
We all use [sic] to go and camp on the exploration license area at a place to the south of the tenement which we called holiday camp. All of the families who lived at Fossil Downs would go to the camp before Christmas and live there until the rivers and waters came down at the end of the wet season when the adults had to go back to work on the station.
To get to the holiday camp we would walk from Fossil Downs with our swags and everything we needed. The camp place is Margaret River side of the tenement. We would get to the camping spot about 3 o’clock. I remember camping at Holiday Camp as a little girl and living off all of the fish from the river and animals we use [sic] to hunt. My parents would take us there during their holidays from work over the wet season. If our rations ran out we use [sic] to go to Brooking Spring station for supplies.
In the old days many people lived in the Oscar Range, that’s where they started but then eventually they all went their separate ways.
Now members of my community go out to the exploration license area every weekend.
I went out the exploration license area last weekend with my partner Mervyn and my son. My son took his own car. We went fishing near Boab Creek. Last weekend there was only wild passionfruit around and we caught some fish, but at other times there is a lot more bush tucker.
When we go to the exploration license area we collect: Bush melon, bush cucumber wanerriny, plums gurney witchetty grub laearndi bush grapes ngooji and wild figs.
There is great fishing on the exploration license area we catch: barramundi balga; longneck turtle wilirrabi; short neck turtle diwiyi; brim jambinbaroo; catfish goolama; swordfish galwanyi and stingray baya.
When we go out hunting in the exploration license area we catch land goanna wawanyi and water goanna girwili and kangaroo thirrwoo and wild pig.
When [we] went out to the exploration license area last week we caught brim jambinbaroo and catfish goolama, we came into the tenement through Junction yard and went fishing out on an island.
We cook the food we catch in the exploration license area where we have camped for the day. We have some favourite little islands in the exploration license area we like to set up camp in. When we went out there last week we sorted through the wood and kindling that the flood/the high water left behind to use for our cooking fore. Normally out there we use bloodwood mowoorroo and waloorroo.
To have a proper meal all we need to take is tea, milk, sugar, flour, water and salt for tea and damper and the rest of the food we catch.
I was taught about collecting bush tucker by my great grandmother Maudie and my father. I have walked across that country with my family all my life.
Going out to the tenement area is important for my community as it helps teach the young people and lets the old people share stories and ways of finding and collecting food from the bush, the traditional way of transferring knowledge is through stories and where the young people can see and do the collecting and hunting themselves.
When we take the children out the exploration license area with us, at the junction of the rivers and all around the bottom section of the tenement, we tell them stories about the country and speak in language, so they learn their language words. Last week we did not take any children out with us we just had a quiet relaxing time fishing but the time before we went out to the exploration license area with a couple of cars and lots of young people.
We take the children out to the junction to go fishing and play games which is where we teach them the Gooniyandi language. When the river is flowing we take the children out to the sand.
Halloway and Malo families also like to go out to the exploration license area every weekend. There is an old road you can travel from Fossil Downs to our favourite fishing and hunting places in the exploration license area. We always go out to the exploration license area, before Geike Gorge, this side of the Fitzroy.
If exploration companies come out to the tenement they will affect whether we can go collect our food traditional way, we want to still be able to go out to our country and take our young people out there so they can learn how to survive on their land. Companies need to talk to us first so none of this can happen.
AREAS OR SITES OF PARTICULAR SIGNIFICANCE
I know the exploration licence area and the country around it very well. There are places in the tenement that are important to the Gooniyandi people.
I know there are special men’s places in the southern part of the exploration license area north of the Boab River. There are burial bones in caves, lots of rock paintings and special men’s ceremony and law story places. My father taught my husband about these places. I cannot be more specific about the stories in those parts because it is special men’s law business.
There is a sacred site there on the exploration license area on the other side of the island we use to camp on and get bush tucker from. On the edge of the island is the sacred site, on the east side of Margaret River. You can see the limestone from the Fossil Downs Road which goes across to Geike Gorge.
There is a big rock like a chicken which is a special place. It has a man’s story which went from my father to my husband but I don’t know all of the parts of the story because it is a secret man’s story but I know the place and it is in the tenement area.
The range that starts in the exploration license area has lots of dreamtime stories connected to it.
There is another women’s area around part of the Boab Creek. This is a very special area, I have told people not to go out here before.
There are many dreamtime stories around Fossil Downs, special places and paintings.
I am pretty sure that there are many significant sites around the Oscar Range. I can tell you the name of someone who can talk about that area.
The special places in our country are not marked but we know where they are. When we have an agreement with an explorer we can tell them where those places area.
There are other special places. Companies need to talk to us to find out where these places area.
The best way to protect these places under out law and white law is to have an agreement with companies who want to explore the area.
MAJOR DISTURBANCE TO LAND OR WATER
I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.
I know BHP and another company use [sic] to be on our country around the exploration license area, but they spoke to us respectfully and ‘proper way’. We helped the miners and explorers to know about our country and we worked with them to complete heritage surveys. We want explorers to talk to us and build a relationship with us before they come out to our country, a heritage agreement helps start a good relationship.
Their exploration could affect our good waterways, fishing and hunting grounds or could disturb some special sites.
Under our law anyone who is not Gooniyandi needs to ask permissions before they can go out on to our country.
ATTACHMENT B
AFFIDAVIT OF JUNE OSCAR
(IN RELATION TO WO2012/1145 AND WO2012/1146)
I June Oscar, Chief Executive Officer or Marninwarntikura Fitzroy Women’s Resource Centre, Fitzroy Crossing, in the State of Western Australia, affirm:
My name is June Oscar. My Aboriginal name is Thalbagbiya.
I was born on 21 April 1962 in Fitzroy Crossing and have lived here most of my life.
My mother, Mona Oscar, is a Bunuba elder who was born at the Native Hospital in Derby. My mother does not know her date of birth. My grandmother and great grandmother are also Bunuba. My great grandmother is buried in the Oscar Ranges on the Leopold Downs side in an area where my grandmother took my mother and where my mother took me.
My mother spent most of her lift and Leopold Downs station on Bunuba country. She also lived at a place called 2 Mile Bore that is situated within Brooking Springs pastoral lease.
I have learnt the Bunuba language mainly through my mother and grandmother and am now a fluent speaker of the Bunuba language. I have also contributed to the publication of a book called “Thangani Bunuba” which contains stories told by Bunuba elders and have learned about Bunuba traditional law and culture through my mother, grandmother, family members and other senior Bunuba people.
I am one of the senior people for the Bunuba native title application (WAD6133/98). Most of this claim was subject to a Federal Court consent determination of native title on the 12 December 2012.
I was elected the inaugural Chairperson of the Bunuba Dawangarri Aboriginal Corporation (“BDAC”), the Prescribed Body Corporate for the determined area. I am also one of the names Applicants for the Bunuba #2 native title determination application (WAD94/2012). I have the authority on behalf of Bunuba people to talk about these matters affecting Bunuba country.
I know the area where Carnegie Exploration Pty Ltd “the grantee party”, have applied for Exploration Licence Number E04/2218 (“the tenement area”), very well, because I have been shown a map of the tenement area. The map I was sown is attached to this affidavit and marked “A”.
The tenement area is situated mainly on Brooking Springs (Gurangadja) pastoral station and includes part of Brooking Gorge and the Oscar Range. My family and I know these areas very well.
There is a walking track that my grandmother and mother used to follow from Leopold Downs pastoral station through the middle of the northern part of the tenement area right down to “old” Bungardi which is situated inside the tenement area near Fitzroy River. When I talk about old Bungardi in the tenement area I do so to distinguish it from the Bungardi community that is located near Fitzroy Crossing outside the tenement area.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
Brooking Springs pastoral lease is in Bunuba country. There are a number of Aboriginal communities in and around Brooking Springs where Bunuba people live. These communities include Bungardi, Junjuwa, Darlngunaya and Burawa / Old Mission. There were also a number of Bunuba communities what were originally proposed to be located at Brooking Springs pastoral lease including Glamanda, Biridu and Wamali. These proposed excisions were later relocated to Leopold Downs (Yaranggi) pastoral lease that is now held by Bunuba Aboriginal Corporation.
The tenement area lies in an area that Bunuba call our river country and there are a number of places and sites there that have significance for Bunuba people.
There is a place called Peter’s Bore (Imineeya) which is just outside the south-western side of the tenement area. There is a salt water trough there, Imineeya is a place where we used to have a big camp for Bunuba people and we would do ceremony there. Bunuba people still go there to camp, hunt goanna (wawanyi) and fish.
Near Peter’s Bore and inside the southern part of the tenement, north of the Fitzroy River, there is another very important place for Bunuba people – old Bungardi which was, and still is, a holiday camp and ceremony place.
Another area inside the southern part of the tenement area after Bungardi is a place we call Jngaljar. This was and still is used as a holiday camp for Bunuba and also a place where we would have ceremony with Gooniyandi people.
North of Jngaljar in the tenement area is a place called Timber Crossing. It is called Timber Crossing because it was an area where timber was felled and uses [sic] to build the stockyards at Brooking Springs pastoral station.
Amother thing about this part of the tenement area that we call our river country is that Bunuba people collect the marrura (Leichardt Pine) log and use them as rafts to cross the river. I remember doing this when I was about 13 or 14.
Also in this part of the tenement area Bunuba people use mashed up lilly bulb and put it in the river to fatten up the fish.
My mother has told me a story about this part of our river country. One day when she was getting bait to go fishing at the Fitzroy river a river python jumped out at her. When this happened she knew she was expecting me as the river python was telling her this.
As well as the river there are a number of springs and creeks all through the tenement area as well as places Bunuba people call living areas where Bunuba people used to live. During the dry season Bunuba people will access these places as often as possible to hunt, camp and collect bush tucker and medicine. There is good hunting in many parties of the tenement area. Bunuba people mainly hunt wawanyi or goanna. We find wawanyi all over our country, including inside the tenement area. We only hunt there in the dry season because in the wet season it is too difficult to access.
I know that the Brooking family who live at Bungardi regularly go out to Brooking Gorge (Guinyja) in the tenement area to hunt wawanyi and fish mainly for black bream (walngga). They would also collect bush tucker and medicines. I know this to be the case because we have an agreement with the Brooking Springs pastoralist. Other Bunuba families who want to visit Brooking Gorge including inside the tenement area will contact George Brooking first as part of the agreement. I know that this happens because when those families return they will share what they have caught and tell us where they went. I remember people telling me this at the end of the last dry season.
There is also pandanus (yarrari) nut found in the tenement area where we crack and eat the seed and it tastes like a peanut and there is also a fruit that grows there we call mandagalgal. I understand that mandagalgal is the only type of plant that naturally occurs in the Oscar Range reef system.
Bunuba people also use Spinifex wax (barrala) that is found throughout the tenement area to treat colds and flus. The barrala is collected from a special type of Spinifex (bininybal). The barrala is grounded up by using a grinding rock like a mortar and pestle and then is applied to any part of the body. For babies we put it on their fintanelle to ward of colds and flus. It can also be rubbed on the chest and acts like Vicks vapour rub. It is also used to “smoke babies”. The wax can also be heated and becomes pliable and acts like a glue to fasten axe and spear heads to the wooden handle.
Other food and plant sources that are found in the tenement area include native honey or sugar bag (nhaa) and konkerberry (biriyali) which is a small aubergine coloured fruit and has a beautiful sweet taste. The dried wood and roots of the biriyali tress is used in smoking ceremonies.
Bunuba people have had difficulties in the past accessing some parts of the tenement area because the previous holder of Brooking Springs pastoral lease prevented access and at times locked the gates. However, last year as part of the mediation for the Bunuba Consent Determination an agreement was reached with the new holders of Brooking Springs pastoral lease which will pave the way for a better relationship. I was directly involved in those negotiations as a member of the Bunuba negotiating team.
Since mid-way through last year we have been seeking to secure a loan through the Indigenous Land Corporation and other sources in order to purchase Brooking Springs pastoral station on behalf of Bunuba people. The reason we are seeking to buy Brooking Springs pastoral station is because it is of particular significance to Bunuba people in terms of its cultural, economic and natural values, but also to ensure that Bunuba people never have to worry again about being denied access to this part of their country. In the meantime the agreement with the new lease holders will create a good relationship and help ensure that Bunuba people can access the tenement area to hunt wallaby, camp and collect bush tucker and medicines and so continue to enjoy this important part of our community life.
There is rock art and cave paintings throughout the Oscar Range including in the tenement area. Last year I went to an area in the western part of mining tenement E04/2200 (next to the tenement area) with my mother and a number of young Bunuba people and an archaeologist. There were two reasons for the trip: to identify the different type of rock art and secondly to show and teach our young people their culture. All these places are “living areas” for Bunuba people and evidence of our prior occupation is truly visible. This inter-generational knowledge transfer is critical to the ongoing maintenance of Bunuba cultural, country, knowledge and community life.
The Bunuba Rangers, who are employed by the Department of Environment and Conservation, regularly go out to Brooking Gorge in the tenement area during the dry season to undertake cultural mapping with senior traditional owners like my mother. As the Chairperson of BDAC, I am aware of and involved in these projects that are carried out by the Bunuba Rangers.
As well as cultural mapping in the tenement area there are also proposed activities to map the flora and fauna. There are different species of plants such as Spinifex in the tenement area that are used as bush medicine by Bunuba people that need to be preserved as well as endangered species such as a certain type of wallaby (wirirru). The Bunuba Rangers as well as BDAC are currently pursuing funding opportunities in order to implement these plans to use appropriate methodologies that combine Bunuba traditional knowledge with western scientific expertise to care for country and manage the fragile ecosystems. As BDAC Chairperson I have been directly involved in preparing these funding applications.
We see the Oscar Range as having an eastern end (Ganimbiri), a middle part (Biyayi) and a western end (Mowanbini). In all of those parts there are springs which have Bunuba names. Each part of Oscar Range including the tenement area is rich in rock art and cave paintings (lalani) that are all important sites for Bunuba people.
We have fought very hard and endured many hardships so that Bunuba people can continue to access this part of our country which has been difficult in the past and if exploration companies undertake activities in the tenement area without talking to us first they will cause considerable distress to Bunuba people as well as causing major interference with this part of our community and social life.
AREAS OR SITES OF PARTICULAR SIGNIFICANCE
The ownership if country, or muay, and the Law we follow come from the dreamtime, from the ngarranggarni. There are many places in Bunuba country, including inside the tenement area, which have great significance to Bunuba people.
In the caves along the Oscar Range including the tenement area there are skeletal remains of Bunuba people. The dead Bunuba people are all those who were massacred over many years of fighting. There are important sites all through this area.
When I went to the Oscar Range in the western part of the tenement area to show our young people the rock art and cave paintings I tried to make them understand that this is not just a place but sites where there are stories and knowledge of Bunuba occupation and use that has been passed down through countless generations of Bunuba people. It is important that Bunuba children see that they are part of a bigger story and they have an ongoing connection to Bunuba country. It is also important to teach our young people their obligations and responsibilities to care for our country and protect these special places.
The best way to protect these places and sites under our law and white law is to have an agreement with companies who want to explore the area.
MAJOR DISTURBANCE TO LAND OR WATER
I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.
If exploration companies undertake activities in the tenement area without talking to Bunuba people first they will cause a major disturbance to the whole cultural and natural landscape balance of the area. Their exploration would cause a major degradation to the fragile ecosystem, including creeks and springs in the tenement area that we are trying to manage through systematic mapping of its cultural and environmental values as well as endangering the extensive rock art and cave paintings and other significant sites in the area.
Under our law anyone who is not Bunuba needs to ask permission before they can go out on to our country.
ATTACHMENT C
GRANTEE PARTY STATEMENT OUTLINING PROPOSED EXPLORATION ACTIVITY
EXPLORATION LICENCE APPLICATION – INCLUDING PROPOSED MINERAL EXPLORATION WORK PROGRAM
TARGET MINERALS: BASE METALS, GOLD and OTHER PRECIOUS METALS
BACKGROUND INFORMATION ON CARNEGIE EXPLORATION PTY LYD
Carnegie Exploration Pty Ltd (“Carnegie or ‘the Company”) is an Australian registered entity which intends to identify, fund and develop mineral resource projects in Australia and overseas. The Company is currently in discussions with various equity capital markets groups regarding the possibility of pursuing an Australian Stock Exchange (“ASX”) listing, or alternatively working with a select group of domestic and international sophisticated investors to continue to finance the Company’s activities going forward. Carnegie is particularly focussed on base metal exploration; but also gold and other precious metals projects.
Carnegie’s Sole Director, Mr Russell Davis has extensive experience both in technical competencies e.g. geology, mineral exploration and mining and corporate activities e.g. finance, accounting, management and corporate law.
1. PROPOSED EXPLORATION
Why This Area Was Targeted by Carnegie Exploration Pty Ltd
This area of the application (85 blocks) is situated at Brooking Springs, approximately 20km northwest of Fitzroy Crossing within the West Kimberley (04) Mineral Field and is targeted by Carnegie Exploration Pty Ltd (ACN 124 801 467) based on the following criteria:
1). Known operations and exploration (past and present) for the target metals in the region (Lennard Shelf);
Historic exploration (publically available through WAMEX) identified several base metal prospects within the application;
Extensive sections of the known mineralised regional structures and permissive stratigraphy;
Exploration acreage in WA where it is anticipated that is a discovery is made it can be developed;
Favourable geological setting.
The Company has targeted this area for exploration for MVT style lead-zinc-silver deposits. The Geological Survey of Western Australia and several major companies and academic institutions have carried out substantial geological mapping and exploration and research programs on the Lennard Shelf for this style of deposit. Deposits from this area are valued for their “clean” concentrates and high grades.
Exploration activities planned on the project will include a complete geological review of the area including reviewing historical exploration and geological mapping, rock chip sampling and stream sediment sampling and previous geophysical surveys. Further electrical geophysical surveys are likely to be conducted to screen the area for massive sulphide (lead-zinc) deposits within 200m of the surface.
Proposed Exploration – First Year
For year 1 (Table 1), a detailed literature and previous explorers’ search, acquisition of available geophysics/orthoimagery data and new Geological Survey of Western Australia products and maps acquisition is proposed. This data will be complied and assessed and following this, field mapping, assessment of known prospects, rock chip sampling and follow up soil geochemistry would be planned over all the terrain amendable to conventional soil sampling.
This work should adequately define and prioritise the target zones for more detailed follow-up work.
- Review of regional and local geology and past exploration
- Geochemistry: Assessment of previous surveys and re-sampling the known prospects for confirmation of anomalies and geochemical signatures
- Acquisition and processing of existing aeromagnetic, radiometric, aerial photographic, satellite imagery and DTM data
- Compilation and assessment of previous ground and airborne geophysical data in particular EM and gravity
- Geochemistry: Orientation study to define best media and best element suite for various regolith domains
- Structural interpretation of aeromagnetic (and gravity) images
- Geological mapping and interpretation
Provisional Program for Second Year (contingent of first year’s results)
The main goals for the second year are to carry out details follow-up work on any targets defined in Year 1, and to advance these prospects to the first pass drilling stage.
- Detailed prospect geological mapping
- Infill geochemistry (if required), including analysis
- RC drilling and sample analysis
- Drafting, GIS, database, reporting
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