Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd
[2010] NNTTA 137
•23 August 2010
NATIONAL NATIVE TITLE TRIBUNAL
Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, [2010] NNTTA 137 (23 August 2010)
Application Nos: WO09/989 and WO09/990
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Butcher Wise & Others on behalf of the Kurungal Native Title Claimants (WC97/101) (Applicant/Kurungal native title party)
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Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants (WC00/10) (Applicant/Gooniyandi native title party)
- and -
The State of Western Australia (Government party)
- and -
Cullen Exploration Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 23 August 2010
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 cause major disturbance to land or waters – expedited procedure not attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 24(7), 63(aa)
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
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 (1 March 2007), Daniel O’Dea
Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined 2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, NNTT WO09/395 and WO09/396, [2010] NNTTA 70 (20 May 2010)
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208; (1996) 136 ALR 557
Solicitor for the
native title party: Ms Hema Hariharan, Kimberley Land Council
Representative of the
native title party: Ms Ania Maszkowski, Kimberley Land Council
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representatives of the Mr Greg Abbott, Department of Mines and Petroleum
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 12 August 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) of its intention to grant exploration licence E04/1896 (‘the proposed licence’) to Cullen Exploration Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 14 December 2009, the following registered native title claimants made expedited procedure objection applications to the Tribunal in respect of the proposed licence:
Butcher Wise & Others on behalf of the Kurungal native title claimants (‘the Kurungal native title party’) (WC97/101 – registered from 1 December 1997) – overlap 13.1 per cent of the proposed licence area (WO09/989); and
Butcher Cherel & Others on behalf the Gooniyandi Combined #2 native title claimants (‘the Gooniyandi native title party’) (WC00/10 – registered from 23 April 2001) – overlap 86.9 per cent (WO09/990).
No other native title claims overlap the proposed licence area.
The proposed licence comprises an area of 634.24 square kilometres located 39 kilometres south-easterly of Fitzroy Crossing in the Shire of Derby-West Kimberley/Halls Creek.
In accordance with standard practice the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period from the s 29 closing date for the lodgement of objections (12 December 2009), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At a status conference on 10 March 2010, following the exchange of a heritage protection agreement, the grantee party made a request for the matters to proceed to inquiry.
Contentions and documentary evidence were lodged by the parties. The native title party has provided an affidavit affirmed by Butcher Wise and documents in affidavit form of Billy Chestnut and June Davis which have not been executed.
Ms Hariharan for the native title party advised the Tribunal that she aimed to have the affidavits of Billy Chestnut and June Davis signed at the Claim group meeting for the Gooniyandi native title party scheduled for 16 August 2010, and to forward them during that week. A subsequent request was made to accept the affidavits into evidence as unsigned witness statements. The Government and grantee parties do not oppose the unsigned ‘affidavits’ being received into evidence by the Tribunal as unsigned witness statements.
I have decided that it is appropriate to admit and have regard to the unsigned affidavits based on previous principles outlined by the Tribunal (see summary of cases in Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner at [18]-[28]). There has been no objection from the Government or grantee parties and the actual evidence is not contested by them.
The parties requested that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2)).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley), I considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence as described in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (DMP). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DMP, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, amongst other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (Maitland Parker) at [31]–[38], [40]-[41]. (See also the Federal Court dismissal of a native title party appeal from this determination in Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 and Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340.)
Evidence in relation to the proposed act
Government party documentation establishes the underlying land tenure of the proposed licence as follows:
Stock Route Fitzroy Crossing to Mount Krauss - CR 23897 (2.5 per cent overlap);
Use and Benefit of Aboriginal Inhabitants CR 39301 – Vested in Aboriginal Lands Trust (0.1 per cent overlap);
Use and Benefit of Aboriginal Inhabitants CR 40569 – Vested in Aboriginal Lands Trust (0.1 per cent overlap);
Radio Transmission Facility CR 45630 (H93345) – (0.1 per cent overlap);
Repeater Station Site CR 41508 (0.1 per cent overlap);
Vacant Crown Land (0.8 per cent overlap);
Mt Pierre Indigenous Owned Lease 398/806 (2.4 per cent overlap);
Historical Lease 396/442 (0.5 per cent overlap);
Historical Lease 396/440 (75.8 per cent overlap);
Historical Lease 396/448 (15.1 per cent overlap);
Fossil Downs Pastoral Lease 3114/1248 (5.5 per cent overlap);
Christmas Creek Pastoral Lease 3114/1257 (14.2 per cent overlap);
Gogo Pastoral Lease 398/810 (73.5 per cent overlap);
Great Northern Highway Road Reserve (0.1 per cent overlap);
No 296 Road Reserve (0.1 per cent overlap).
There is a National Heritage Listing (NHL/106063, The Kimberley) over 100 per cent of the proposed licence under the jurisdiction of the Department of Environment, Water, Heritage and the Arts. According to the Department’s website, the status of NHL/106063 is ‘Ministerial request for assessment’.
The Government party documentation reveals that the Joy Springs Aboriginal Community is situated within the boundaries of the proposed licence, wholly located within the Gooniyandi Combined #2 claim.
The map prepared by the Tribunal’s Geospatial section confirms the location of the Joy Springs Aboriginal Community and a large number of other Aboriginal communities situated within five to fifteen kilometre radius of the proposed licence, including the town of Fitzroy Crossing. The map also reveals the location of Department of Indigenous Affairs (DIA) registered sites under the Aboriginal Heritage Act 1972 (WA) overlapping the proposed licence, with details of twenty five registered sites, provided in the documentation of the Government party and the contentions of the Kurungal and Gooniyandi native title parties as follows:
Site ID 430 – Goongoona (skeletal material/burial – permanent register, closed access, no restrictions), significantly within the proposed licence area and overlapping the Gooniyandi claim area;
Site ID 12654 – Luraypa (named place – insufficient information, open access, no restrictions), partially within the proposed licence and partially overlapping the Kurungal and Gooniyandi claim areas;
Site ID 12729 – Gunburrgu (mythological, water source – permanent register – open access, no restrictions), partially within the proposed licence and overlapping the Kurungal and Gooniyandi claim areas;
Site ID 12806 – Payawon (grinding patches/grooves, water source – permanent register, open access, no restrictions), significantly within the proposed licence and overlapping the Gooniyandi claim area;
Site ID 12807 – Paliara (mythological – permanent register, open access, no restrictions), wholly within the proposed licence and overlapping the Kurungal claim area;
Site ID 13271 – Payawan (mythological – insufficient information, open access, no restrictions), wholly within the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13273 – Virgin Hills (plant resource – stored data, open access, no restrictions), on the boundary of the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13280 – Wantawungan (mythological – permanent register, open access, no restrictions), significantly within the proposed licence and overlapping the Kurungal and Gooniyandi claim areas;
Site ID 13284 – Wanna Nungu (ceremonial, hunting place – insufficient information, closed access, male access only), significantly within the proposed licence and overlapping the Kurungal and Gooniyandi claim areas;
Site ID 13584 – Wongalmata (artefacts/scatter, camp – insufficient information, open access, no restrictions), wholly within the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13699 – Tjuluwingari (mythological – permanent register, open access, no restrictions), significantly within the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13703 – Tjuaringari (artefacts scatter, camp, water source, – permanent register, open access, no restrictions), slightly outside the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13706 – Putjil (hunting place – stored data, open access, no restrictions), wholly within the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13707 – Pinginyingari (camp – insufficient information, open access, no restrictions), wholly within the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13710 – Ngalilay (skeletal material/burial – insufficient information, closed access, no restrictions), partially within the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13762 – Kunkuna Sand Hill (artefacts/scatter – insufficient information, open access, no restrictions), siginificantly within the proposed licence and overlapping Gooniyandi claim area;
Site ID 13839 – Give and Take Creek (artefacts/scatter– permanent register, open access, no restrictions), wholly within the proposed licence and on the boundary of the Kurungal and Gooniyandi claim areas;
Site ID 13980 – Bayawan (mythological, water source – permanent register, closed access, no restrictions), wholly within the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13992 – Bloodwood bore (mythological – permanent register, closed access, no restrictions), partially overlapping the proposed licence and overlapping the Kurungal claim area;
Site ID 13993 – Outcamp Hill (skeletal material/burial – insufficient information, closed access, no restriction), partially within the proposed tenement and partially overlapping the Gooniyandi claim area;
Site ID 13994 – Gunguna (mythological – permanent register, closed access, no restriction), on the boundary of the proposed licence and overlapping the Gooniyandi claim area;
Site ID 13995 – Djungala (mythological – permanent register, closed access, no restriction), wholly within the proposed tenement and overlapping the Gooniyandi claim area;
Site ID 14070 – Pinbilly 5 (artefacts/scatter – permanent register, closed access, no restriction), wholly within the proposed tenement and overlapping the Gooniyandi claim area;
Site ID 14074 – Pinbilly 9 (artefacts/scatter – insufficient information, open access, no restriction), wholly within the proposed tenement and overlapping the Gooniyandi claim area;
Site ID 14075 – Pinbilly 10 (artefacts/scatter – insufficient information, open access, no restriction), wholly within the proposed tenement and overlapping the Gooniyandi claim area.
Government party documents indicate that a pending petroleum exploration permit application 3/08-9 EP overlaps the proposed licence at 40.5 per cent. In addition, Exploration Permit EP 453 overlaps the proposed licence by 59.5 per cent. According to the Quick Appraisal document, there has been extensive mining and exploration activity in the past with numerous ‘dead’ tenements surrendered, withdrawn or cancelled between 1966 and 2009. There are six ‘pending’ tenement applications and four ‘live’ tenements affecting the proposed licence. The ‘pending’ tenement E04/1876 is subject to an expedited procedure objection application by the Gooniyandi native title party (Tribunal No. WO09/975) and is in the inquiry process. Despite the evidence of a high level of mining and exploration activity in the general area the prior tenements overlapped the proposed licence area between 0.1 per cent and 1.0 percent and are of only limited relevance in this inquiry.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4). Additional conditions imposed require that the pastoral lessee is notified of the grant of the licences and of certain exploration activities (conditions 5-6).
The grant of the proposed licence will also be subject to the following conditions (conditions 7-14):
‘7.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Repeater Station Site Reserve 41508, Use and Benefit of Aboriginal Inhabitants Reserves 39301, 39302 and 40569;
8.No excavation, excepting shafts, approaching closer to the Great Northern Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the Great Northern highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road verge, to below a depth of 15 metres from the natural surface;
9.No interference with Geodetic Survey Stations B1, R11, NK18, R314, R315, Noonkanbah 23, 24, 28, 29, 30, 38 to 41, 38A, 47, 48, 50, 53, 54, 94, 97, 98 and 99 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
10.No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
11.Mining within a radius of 150 metres of any Australian Telecommunications Commission microwave repeater station being confined to below a depth of 60 metres from the natural surface.
12.No interference with the Australian Telecommunications Commission microwave repeater station ray-line.
13.The rights of ingress to and egress from application for Miscellaneous Licence 04/23 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
Consent to explore on Stock Route Reserve 23897 granted subject to:
14.No exploration activities being carried out on Stock Route and Reserve 23897 which restricts the use of the reserve.’
In addition, the grant of the proposed licence will also be subject to the following condition (“the Proposed condition”):
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Gooniyandi Combined #2 People the applicants in WAD 6008/00 (WC00/10) and/or the Kurungal People, the applicants in Federal Court application no. WAD 6217/98 (WC97/1), such request being sent by pre-paid post to reach the Licensee’s address, c/- McMahon Mining Title Services Pty Ltd, PO Box 8638, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Gooniyandi Combined #2 People and/or Kurungal People, as the case may be the Regional Standard Heritage Agreement endorsed by peak groups and offered to the Kimberley Land Council.’
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder;
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained; and
The grant of this licence does not include the land the subject of prior Exploration Licence 04/1108. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.
Evidence provided by the native title parties
The submissions of the Kurungal native title party (WO09/989) include the following affirmed affidavit of Butcher Wise (BW affidavit):
‘AFFIDAVIT OF BUTCHER WISE
I, Butcher Wise, pensioner, of Ngumban Community in the State of Western Australia, affirm:
1.My name is Butcher Wise. I am about 61 years old. I was born in Kurungal country. Kurungal is our name for the whole of Christmas Creek Station and Surrounding Aaeas, but is also the name for a spring on the Station.
2.My Aboriginal name is Kilalaparri. My name comes from my jarriny place called Kilalaparri in Kurungal Country. Jarriny is our name for ‘conception dreaming’.
3.I am one of the senior people for the Kurungal Native Title Determination Application (WAD 6217/98). I speak the Walmajarri language
4.I know the area where Cullen Exploration Pty Ltd, “the grantee party”, have applied for Exploration Licence Numbers E04/1896, the “Exploration Licence Area”, very well, because the Exploration License Area is on Gooniyandi and Kurungal country, the country I belong to. The map of the Exploration Licence Area is attached to this affidavit and marked “A”.
5.I was born ay Tagnku. Tonka Springs is the whitefella name for Tangku. Today, Tonka Springs is part of Bulka Station. I’ve lived all my live on Christmas Creek Station after we moved away from Tangku when I was a little child. The Kurungal part of the Exploration License Area falls on Christmas Creek Station.
6.My Jarriny place is the place where my mother found my spirit before I was born. I’m carrying that spirit inside me now. That waterhole, Kilalaparri, near the station homestead, had that name before I got it. Kilalaparri is a main water right there on a creek junction with the Christmas Creek, on Kurungal which is on and around the exploration licence area. There is a Dreamtime snake there.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
7.The exploration licence area falls in Kurungal country.
8.There are several ceremony grounds there in and around the Exploration License Area. These are very important places.
9.There is good hunting throughout the Exploration Licence Area. We hunt goanna (kajagie), kangaroo (maahulu), snake, wild cat, bush turkey, sand frogs (bujool) and hill kangaroo (carmaandi) inside the Exploration Licence Area. We make spears and boomerangs from trees in that country inside the Exploration Licence Area.
10.The old people used marbling, the spear thrower and ginaal, the spear to catch animals. We still use boomerangs for hunting, but mostly riffles.
11.I want to take my kids to teach them the hunting and cooking of bush food.
12.We collect different types of bush tucker in and around the Exploration License Area and right the way through it. We collect koongku berry. The roots of that tree we cut them up and boil them. It’s good for colds. We also use that tree for smoking for babies, spirits and people when they die. The fruit baanbilli, the yellow fruit is a good feed. We use the roots of that tree as well for colds. We cut up the root and boil them. The roots come out like a black tea leaf. It’s a strong drink. Other bush fruits are Yubunna – it’s like a lemon tree, but green. You can find Lagaandi, witchetty grub in all through the trees. Mulburru and Dingaal are some of the trees you can find the witchetty grubs. Balabri the poinber tree- you get mangarri from there, the brush fruit, the tree fruit, you get it inside the Exploration License Area.
13.We find different kinds of ochre in Kurungal country including inside the Exploration License Area. We have mawinti or white ochre, karntawarra or yellow orche, and pilji or red ochre at different places. We use these ochre for painting men and women in our ceremonies. We use Pirrki, or charcoal, to make black paint. We also use mardagurrul, the white feather of a turkey. We use all these things for Law business dances on Kurungal country.
14.We dig up mawinti, karntawarra and pilji on our country. There is Karntawarra and pilji at Kilalaparri, my jarriny place as well. If any stranger wants to get karntwarra or pilji on our country, we have to meet with hem and we might give some to those strangers, like a present. If they just take it, our Law tells us that we can sing yirnpanu. Yirpanu means ‘sing them’ in Walmajarri language. The Maarbang man might sing them. Those strangers would get sick and die.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
15. I know the Exploration Licence Area very well. There are many places in my country, including inside the Exploration Licence Area, which are very important and have great significance to us.
16. The old people used to do ceremony in and around the Exploration Licence Area. They used to tell us stories. Today, we still visit that place for law and ceremony. We do it in a modern way.
17. We travel that whole Exploration Licence Area and down the river. There is a billabong there. The story of the brown goanna is by that billabong. That goanna travelled a long way, right through that Exploration License Area and camped at Bianbung just in the north of the Exploration License Area. It is now at Jilgardy at the big Billabong. It’s a dream time story. It’s a men’s story. I won’t say anymore.
18. There is another man’s story about Paliyarra that includes the Exploration License Area very near Bloodwood bore, where a goanna camped there and went hunting. It is a man’s story I can’t say anymore.
19. The Dreamtime snake and the stories and dreaming tracks fall across the Exploration Licence Area. These places our old people left for us to look after. There are also places for ceremony and law grounds here.
20.We have a cemetery on Kurungal country which is in and around the Exploration Licence Area where all our family are buried. Before the first whitefellas came to set up Christmas Creek Station. We were living more free than we are today. We have all grown up on this country and our old people died here.
21. For my malurlu, our Law ceremonies for boys, I didn’t go anywhere else, I went through Law right there at Kurungal, including inside the Exploration Licence Area near Wangkajunka. My brothers and cousin-brothers were looking after me in that Law business. I’ve seen corroborees on this country. I saw them every year when I was growing up. I saw them at Kurungal and it the bush on the station. We still visit those places.
22. The law grounds in the Exploration License Area are special to us. We don’t want like people getting to close to that area, it can be dangerous. The law areas need to be looked after. If not shown the proper way, it can be dangerous for strangers.
23. We are looking after all the important places in our country. We have to teach the kids the country, about tucker there and the Aboriginal Law for the place so that they know their Country and look after it. That Law comes from our old people and from Ngarranggarni, our Law is not just from this time, today. It comes from a long time ago and still goes on today.
MAJOR DISTURBANCE TO LAND OR WATER
24. I am aware of the activities which the grantee party could do on the Exploration Licence Area under the Mining Act if they are granted the exploration licence.
25. Sometimes when strangers visit the in and around Christmas Creek, down near the water on the Exploration License Area, they get weak, because of that Dreamtime snake Kalpurtu. If there is any different smell, well, that Kalpurtu gets up. In another country like Geikie Gorge or Danguu. I can’t go swimming in the river because the snake there might smell a different sweat. That other country is a different soil. If you are in another man’s water hold or place, you have to rub your hands under your armpits and then put your hands in the water, so the snake can know your smell. That’s the law of our old people.
26. Strangers must come and see people and ask for permission before coming onto our country because we have got a lot of very special places on my country, from our old-time people and from the early days. That’s why we are frightened if strangers arrive in our country uninvited. They might get sick or paralysed it is dangerous. We know that Strangers don’t follow our Law. That’s why they have to meet with us, and we’ll take them.
27.If strangers damage a site, artefact or other dreaming areas we feel very upset you know. We feel very sad, like someone close to us has died. It’s like the same thing for country.
28.Stranger cannot help themselves to our country. They have got to ask us first. They should really talk to Traditional Owners, so we can understand really what they want to do. If we say, No, they must leave our country, but if we say, Yes, they can stay and talk with us. If they make money out of my country they can maybe give my community a little bit because they are taking something from our country our land’
The evidence of Butcher Wise is uncontested and I accept it. Mr Wise says he is one of the senior people for the Kurungal application. He is a named applicant for the registered Kurungal native title claimant and I accept Mr Wise has the necessary authority to speak for country on behalf of Kurungal.
The submissions of the Gooniyandi native title party (WO09/990) includes the unsworn affidavits accepted as evidence as unsigned witness statements of Billy Chestnut (BC witness statement) and June Davies (JD witness statement) made in the following terms:
‘AFFIDAVIT OF BILLY CHESTNUT
I, Billy Chestnut, school bus driver, of Ngalingkadji, via Fitzroy Crossing in the State of Western Australia, affirm:
1.My name is Billy Chestnut. My Aboriginal name is Nguwal. I was born on 27 December 1956 at Chestnut Bore which near the proposed exploration license area.
2.I am a member of the Gooniyandi Native Title Determination Application (WC00/10).
3.I know the area where Cullen Exploration Pty Ltd “the grantee party”, have applied for Exploration Licence Number E04/1896, the “Exploration Licence Area”, very well, I have been shown a map of the application area, I grew up in and around the Exploration Licence Area and my family and I still visit that area. The map I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The Exploration Licence Area falls on country I look after. It falls on Gooniyandi and Kurungal country. I was born at Chestnut Bore, I grew up there. Chestnut Bore is very near the Exploration License Area. I moved to Gogo Station as a Child, with my family which is in and around the Exploration License Area.
5.I live at Ngalingkaji community which is very near to the Exploration License Area. I visit the area all the time for camping, hunting, fishing and cultural reasons.
6.There are many sacred sites in the Exploration License Area. The area of Christmas Creek including the exploration license area is known as Gooroongal, it is named Kurungal by the Walmajarri people. That is the area that is called Christmas Creek by white people. There are several ceremony grounds there. These are very important places.
7.There is good hunting all through the Exploration Licence Area. We hunt Walumba (small kangaroo), blackhead snake mostly python Wawunyi, goanna and bush turkey inside the exploration licence area. Basically anything that moves on the ground. In the old days we would hunt these with spears, but now we go and shoot them.
8.There are sacred and important sites throughout Gooniyandi country. There are many ceremony and law grounds there in around the exploration license area. These places are important to my people. These places are a part of our traditions and our law and culture.
9.We are responsible for the safety of sacred sites in that area.
10.We use the Exploration Licence Area to collect different bush fruits and medicines. We find Witchetty Grub (Lagarndi) and Sugar Bag (Ngalinya) from the trees in around the Exploration License Area. We use the Koongkuberry (Bryli) as a medicine for colds. This plant can be found throughout the Fitzroy Valley and the tenement area. We also use a tree from this area called Jooloomoorndoo, this is used to help fight colds as well. In the tenement area we also collect a small fruit from a bush we call Nyanjaarli, this bush has spiky, sharp leaves. We collect what we call Boorrngoondoo off of the Red River Gum trees; it is like sugar and can be found on the leaves of the tree.
11.We collect Lambi Lambi from inside and around the Exploration License Area. We use the roots from the little bush, the bark and the leaves- we use it for open sores. We crush it and boil it and put it on the sores. It dries up. The sap from the Bloodwood tree is medicine. You drink it. It clears the throat, and we collect Eucalyptus leaves we use it just like Vicks Vapour rub.
12.We also collect bush foods like bush yam, which is like sweet potato and bush plum.
13.We collect ochre in the country in and around the Exploration License Area. We use the red, white and yellow ochre in Junbu ceremony. We call ochre Galardi in Gooniyandi. We use white ochre to paint ourselves before Junbu, all three colours are used in the Junbu we have during law time. Galardi can be found in the limestone country on the Exploration License Area.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
14.I know Gooniyandi country and the Exploration licence Area very well. There are many places in my country, including inside the Exploration licence area, which are very important and have great significance.
15.The old people used to do ceremony inside the Exploration Licence Area. They used to tell us stories. Gooroongal is a place where we still have ceremony today.
16.Today, I still do those ceremonies and have to teach the young people in all that and those places.
17.There are sites that are important to my people in that Christmas Creek area. A burial site is at Chestnut Bore, that place is where some of our old people rest. There are many sites in that area like that one, that we don’t want people disturbing or ruining.
18.We have dreaming stories and dreaming tracks inside and around the Exploration License Area. All through the Exploration License Area places that our old people have left for us to look after. Places with the bones of our old people, places with their camps and paintings throughout the Emmanuel Ranges inside and around the Exploration License Area. There are also places for ceremony and law grounds. This area is special to us. We don’t want like people getting to close to that area.
19.There are caves that our old people occupied for shelter in and around the Exploration Licence Area. There are stories there.
20.There is a lot of law ground. People have been put to rest in caves in and around the Exploration Licence Area. There is a certain hill. Men were initiated in that place. I won’t say anymore.
21.There is another man’s story about Paliyarra that includes the Exploration Licence Area near Bloodwood bore, where a goanna camped there and went hunting. It is a man’s story I can’t say anymore.
22.There are dreaming stories and the dreaming track of the of the rainbow snake inside and around the Exploration Licence Area near Ngumpan Community. It is the original living place of the rainbow snake.
23.It is important for us to look after this country; this is what our old people wanted. We have to make sure that these places are kept for our children and grandchildren. We don’t want these places to finish, that would upset our old people.
24.Mining companies should ask permission and show us respect as the Traditional Owners of that Country. How would they feel if we did that same thing to their place without asking? They don’t know this country, they don’t know these communities, and they don’t know what they could be disturbing, interrupting and ruining. There might be law happening, there might be funerals. Strangers are not meant to come near communities and our special places during these times.
25.You will find that there are all kinds of artefact scatters that our old people left around on that country, you might not be able to see them and we don’t want anyone to touch them.
26.There are skeleton’s of the old people in that Exploration License Area. Their spirits are still there.
27.The area of the Exploration Licence Area that is on Christmas Creek Station is the place where the Walmajarri people came to meet with the Gooniyandi. There is much ceremonial activity. We still do those ceremonies, but in the modern ways now. Senior elders did it a lot. We do it once a year.
28.We are looking after all the important places in our country. We are passing on these stories to our young people.
MAJOR DISTURBANCE TO LAND OR WATER
29.I am aware of the activities which the grantee party could do on the Exploration Licence Area under the Mining Act if they are granted the Exploration licence.
30.Strangers must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. We know that strangers don’t follow our Law, that’s why they have to slow down and come and meet with us. The same is for blackfellas from another area. They need to come and see us first and get permission to come onto country. They understand that, white people don’t.
31.There are spiritual beings that look after those special areas inside and around the Exploration License Area. Strangers would get sick if they come onto our land and do not ask the traditional owner’s permission.
32.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law.
33.If strangers damage a site, artefact or other important place or thing, we feel very upset you know. We feel very sad, like someone close to us has died.
34.If blackfellas damage any important places or things in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again.
35.Strangers cannot help themselves to our country. They have got to ask us first. If we say, No, they must leave our country, but if we say, Yes, they can stay and talk with us. If they make money out of my country, they should give my community a little bit like help making a road because they are taking something from our country our land. We are Dawa or traditional owners for this country. This is the right way.
36.If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our Dreamings.’
‘AFFIDAVIT OF JUNE DAVIS
I, June Davis, of Muludja, near Fitzroy Crossing, in the State of Western Australia, affirm:
1.My name is June Davis. My Aboriginal name is Ningali. I have Nangardie skin, or subsection identity. I was born on 24 March 1956 on Fossil Downs Station which is in the proposed exploration license area.
2.I am one of the senior people for the Gooniyandi Native Title Determination Application (WC11/10). I am a Bunuba on my mother’s side and Gooniyandi on my father’s side.
3.I know the area where Cullen Exploration Pty Ltd “the grantee party”, have applied for Exploration Licence number E04/1896, the “Exploration Licence Area”, very well, I have been shown a map of the application area, I grew up in and around the Exploration Licence Area and my family and I still visit that area.. The map I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The top side of the Exploration Licence Area falls on country I look after, specifically the sacred sites of Jalanganjoowa, Colin’s wall, Boongaya, Malanjoowa, Joowayoowa.
5.I live at Muludja community which is very near to the Exploration License Area. I visit the area all the time for camping, hunting, fishing and cultural reasons.
6.There are many sacred sites in the Exploration License Area. The top side of this area is known to me from visiting and learning the songs and stories and performing ceremonies. There are several ceremony grounds there. These are very important places.
7. There is good hunting and fishing all through the Exploration Licence Area. We hunt Goanna, Kangaroo, Snake and Turkey inside the Exploration Licence Area.
8.Moolooraja is a waterhole inside the Exploration Licence Area where we hunt frog to eat woogoo.
9.There is good fishing inside the Exploration Licence Area we get bream, barramundi and catfish. We cut logs from the freshwater mangrove, gooroo inside in the Exploration Licence Area and throw it in the water. It poisons the water so the fish float to the top for a while and we catch them. I get jinali (bamboo) for making spears to spear the fish.
10.I am responsible for the safety of sacred sites in that area.
11.When I visit my country inside the Exploration Licence Area I get all kinds of bush vegetables and bush medicines we collect these from inside the Exploration Licence Area. We go there all the time to collect bush medicines. We teach our kids about collecting and using bush medicines. We collect Biryali koonguberry tree for smoking kids. We use the bark of the tree for the smoking. It makes bones strong. We also use it to smoke houses when people have passed away. We get Walamba from a little bush in and around the Exploration license Area. We boil it, and use it to wash ourselves for sores, cold sick and itching. We collect Bininyabal from the ants on the limestone. It smells like incense it is used for smoking babies and putting it on the babies heads on the soft point of their head to stop them from getting cold sick.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
12.I know the Exploration licence area very well. There are many places in my country, including inside the Exploration licence area, which are very important and have great significance in the traditional religion of my community.
13.The old people used to do ceremony inside the Exploration Licence Area. They used to tell us stories. Today, I still do those ceremonies and have to teach the young people in all that.
14.The old people used to do ceremony at Fossil Downs station in and around the Exploration Licence Area, the ceremony grounds have moved to Malanjoowa inside the Exploration License Area. We still camp and go fishing on Fossil Down’s Station. We go there often. It is close to where we live. When we go there we talk to that place, me and my kids ask them for fish and food.
15.Most of our old people were born on fossil downs Jalnganjoowa they have their jarring there. They were born there in the bush it is special to them and it becomes a special place.
16.We have dreaming stories inside and around the Exploration License Area, Lumbungari. A woman from Bunuba country came onto Gooniyandi Country looking for her dog. It chased a kangaroo onto Gooniyandi Country. She started calling for her dog in Bunuba language, then she heard the different language [Gooniyandi]. She and her dog turned into stone. If you go to red hill inside the Exploration Licence Area you can see the shape of a dog in the stone.
17.Spirits are still playing in the water there at Jalnganjoowa inside the Exploration License Area. They are still there. My grandkids and I still hear the spirits laughing and playing in the water when we lie down by the river.
18.Malanjoowa inside the Exploration License Area is a place for ceremony. It’s a major gathering place. They came from all around, Bedford, Louisa, all around. They would de ceremony for 1 week over Christmas. The old people are still there. I go there to fish. When I go i sing out and ask for fish and they give it to me. They used to fish there as well.
19.There is a big tree in the river inside the Exploration License Area. It is a gateway for the barramundi. It is like opening. We dream up a person from the community, they open the gate and the barramundi come into the river and we catch them. There are spirits all through the Exploration Licence Area, helping our people.
20.There are holiday spots all near the river inside and around the Exploration License Area. We go there as often as we can. Historically its for camps and now we visit hunt and fish. We go there and pass on stories to the young people.
21.There are special places by the river inside the Exploration Licence Area, where two rainbow serpents join together and cause a storm when strangers go there and upset the snakes. It has already happened, 2 snakes fighting on the banks of the river inside the Exploration Licence Area. They cut up the banks of the river. All the Station Managers could do was just watch the waters just rising.
22.Sometimes Hairy men come into the Exploration License Area. They could take you away. They’re real and live in the caves. They’re tricky. So you don’t walk around by yourself they take you away.
23.You will find that there are all kinds of artefact scatters that our old people left around on that country, you might not be able to see them and we don’t want anyone to touch them.
24.This area is special to us. We don’t want people getting to close to that area. There is a woman’s area in and around the Exploration Licence Area in new Fossil Downs Station. We can’t go there. But we look after that place it is very special, we pass on stories of that place.
25.There is a sacred men’s area there in and around the Exploration License Area. We can’t disclose that place. We can’t talk about it.
26.Every year at Christmas time we do corroboree in and around the Exploration License Area for both men and women. We teach young people stories at that time. We paint up for dancing. We use red, yellow white ochre from the river bed inside and around the Exploration License Area.
27.We remember the camps of our people up and around the Exploration License Area and down into the Exploration License Area. I spent much of my life walking around on that country with my old people. Old people told us to look after that Country. We don’t want to upset them.
28.The ranges around Fossil Downs in and around the Exploration License Area have lots of graves and bones. In the cave there are skeleton’s of the old people. Their spirits are still there.
29.We are looking after all the important places in our country. We are passing on these stories to our young people.
30.The mining mob must come and see us we might say no, or we might talk with them and make an agreement. They must talk to us Traditional Owners of the land. It is about respect.
MAJOR DISTURBANCE TO LAND OR WATER
31.I am aware of the activities which the grantee party could do on the Exploration licence area under the Mining Act if they are granted the Exploration licence.
32.I live in Muludja community just outside the Exploration License Area. The drilling mob went out there one time and made a mess. They didn’t clean it up. They said that after they dig they would cover it, they didn’t. Mining companies must do what they promise.
33.White people and strangers must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. We know that strangers don’t follow our Law, that’s why they have to slow down and come and meet with us.
34.If stranger’s com on to our land without asking for permission they lose direction, get lost, they get taken away. It happened to 2 teachers.
35.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law.
36.If strangers damage a site, artefact or other important place or thing, we feel very upset you know. We feel very sad, like someone close to us has died.
37.If blackfellas damage any important places or things in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again.
38.Strangers cannot help themselves to our country. They have got to ask us first. If we say, No, they must leave our country, but if we say, Yes, they can stay and talk with us. If they make money out of my country, they should give my community a little bit like help making a road because they are taking something from our country our land.
39.If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our Dreamings.’
The evidence of Billy Chestnut and June Davis is uncontested and I accept it. Billy Chestnut and June Davis are members of the Gooniyandi application and June Davis is one of the senior people. I accept that as members of the Gooniyandi claim group they have the necessary authority to speak for country on behalf of Gooniyandi people.
Community or social activities (s 237(a))
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 parties (in the sense of there being a real risk of interferences) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450, ([23])) (Smith). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas, s 24(7) in relation to reserve land and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]) and in the present case the reserve land is a very small area and of little importance.
Tribunal mapping establishes that the Aboriginal communities of Ngumpan, Ngalingkadji and Muludja, at which Butcher Wise, Billy Chestnut and June Davis respectively reside, are located respectively within five kilometres to the south east, west and north east of the proposed licence. The communities are located within the Kurungal and Gooniyandi claim areas. There are other Aboriginal communities in the vicinity of the proposed licence area, namely Gogo, Ngurtuwarta, Karnparri, Galeru Gorge, Mingalkala, Mimbi, Bawoorrooga, Gilly Sharpe, Wangkatjungka and other communities close to Fitzroy Crossing. I can safely infer that members of the Gooniyandi and Kurungal native title claim groups reside either temporarily or permanently at these places.
The evidence of all three deponents establishes that hunting, fishing, gathering of bush foods and medicines and the collection of ochre for ceremony occur throughout the area of the proposed licence. Further, it is evident that while methods of hunting and gathering may have altered over the years, such activities are still practised over the relevant area. All deponents talk of hunting goanna, kangaroo, snake, frogs and bush turkey inside the proposed licence area. The evidence also establishes that areas in and around the proposed licence are used for traditional ceremonies and that different types of ochre, found in the vicinity of the proposed licence area, are used during ceremonies and law business dances. Despite the fact that the deponents do not expressly indicate how frequently the area of the proposed licence has been or is utilised by members of the Kurungal and Gooniyandi native title parties or how many persons are involved in the activities referred to, I am satisfied that there is evidence of hunting, fishing and other traditional activities which are currently carried out to a considerable extent. The close location of nearby Aboriginal communities, combined with the deponents’ evidence, satisfies me that there are contemporary traditional community or social activities carried out on a more than infrequent basis over the relevant area.
I must now assess whether the grant of the proposed licence is likely to interfere with the carrying on of the community or social activities. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title parties’ community or social activities may be taken into account in assessing whether the grant of an exploration licence is likely to further affect such activities (Smith at [26]-[28]; Walley at [12]).
The evidence establishes that extensive exploration and mining activity has occurred in the vicinity of the proposed licence area over the years. However, there is no specific evidence to support a finding that there has been or is currently any appreciable effect on the native title parties’ community or social activities from exploration and mining activity which the evidence of the native title party witnesses establishes still continues on a regular basis. The entire area of the proposed licence (with the exception of 0.1 per cent for the Aboriginal reserve) is covered by pastoral leases which also could have had such effect but again the native title parties’ evidence establishes that despite restrictions which may have been caused by these activities, the native title parties still carry out a broad range of community and social activities.
In making the assessment of whether the grant of an exploration licence is likely to directly interfere with the native title party’s community or social activities the Tribunal usually has regard to the fact that the area of an exploration licence is usually small compared to the overall claim area in which community or social activities can continue unimpeded by exploration on the tenement area as a factor in determining that the relevant interference is unlikely to occur. Government party documents reveal that the area of the proposed licence which overlaps the native title parties’ claim areas is 55,106.87 hectares (Gooniyandi) and 8,312.22 hectares (Kurungal) but the evidence of the deponents is that community and social activities of the native title parties occur over the total area of the proposed licence – a significant area of 63,424.28 hectares. Further, the area of the Gooniyandi Combined #2 People’s claim is some 11,209 square kilometres and the area of the Kurungal People’s claim is approximately 1,248 square kilometres, much larger than the area of the proposed licence, thus making it, less likely that exploration on the areas of the proposed licence, that overlap the native title parties, will impact on community or social activities. While accepting this to be the case, the evidence demonstrates that the extent and range of those community and social activities are such that they will be directly interfered with even though they are also carried out in areas which extend beyond the proposed licence area.
The Tribunal also has regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place. Usually, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. However, each case must be evaluated on its merits, taking account of the particular facts. In my view, despite the factors just referred to, the nature and intensity of the community and social activities are such that there is likely to be direct interference with them by the grant of the proposed licence and exploration activities undertaken. Importantly in this case there are three established Aboriginal communities abutting the proposed licence where Butcher Wise, Billy Chestnut and June Davis live and a significant number more in the very near vicinity. The evidence of Butcher Wise, Billy Chestnut and June Davis establishes that contemporary activities occur across the proposed licence, including hunting, fishing, gathering and collecting ochre for traditional ceremonies.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208; (1996) 136 ALR 557 that the very thought of intensive exploration activities could interfere with ‘community life’ (NTPSC para 14), I adopt my findings in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act 1972 (AHA) shows eight closed and seventeen open access sites within the proposed licence area. This does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particularly significance. It also says that the condition to be imposed on the grant will give the native title parties the option to require the grantee party to be bound by the Regional Standard Heritage Agreement (RSHA) and conduct a site survey in accordance with it. 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 and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (Butcher Cherel) (at [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.
The evidence of Butcher Wise, Billy Chestnut and June Davis establishes the following facts which support a finding that the sites identified below lie within or are in the vicinity of the proposed licence.
‘Paliyarra, a male dreamtime story that includes the area of the proposed licence and Bloodwood Bore where a goanna camped and went hunting. It is a ‘man’s story I can’t say anymore.’ (BW affidavit para 18)
‘for my malurlu, our Law ceremonies for boys, I didn’t go anywhere else. I went through law right there at Kunrungal, including inside the Exploration Licence Area and near Wangkajunka.’ (BW affidavit, para 21)
A burial site is located at Chestnut Bore, where some of the old people rest. ‘there are many sites in that area like that one, that we don’t want people disturbing or ruining’. (BC witness statement, para 17)
Dreaming places and dreaming tracks inside and around the proposed licence area. There are places ‘with the bones of our old people, places with their camps and paintings throughout the Emmanuel Ranges inside and around the Exploration Licence Area. There are many places for ceremony and law grounds. This area is special to us.’ (BC witness statement, para 18)
‘There is a lot of law ground.’ ‘There is a hill. Men were initiated in that place. I won’t say anymore.’ (BC witness statement, para 19)
‘We have a cemetery on Kurungal country which is in and around the Exploration License area where all our family are buried.’ (BW affidavit, para 20)
There is a rainbow snake inside and around the proposed licence near the Ngumpan Community and it is the original living place of the rainbow snake. (BC witness statement, para 22)
Christmas Creek within the proposed licence is an area where the Gooniyandi meet Walmajarri people for ceremonies once a year. (BC witness statement, para 27). See also statement of June Davis, para 18.
Most of the old people were born on Fossil Downs (Jalnganjoowa) and have their jarring there – ‘it is special to them and it becomes a special place.’ (JD witness statement, para 15)
A big tree in the river inside the proposed licence is the gateway for the barramundi and ‘there are spirits all through the Exploration Licence Area, helping our people.’ (JD witness statement, para 19)
There is a woman’s area in and around the proposed licence and area near Fossil Downs Station. We can’t go there. But we look after that place it is very special, we pass on stories of that place.’ (JD witness statement, para 24)
The ranges around Fossil Downs and in and around the proposed licence have a lot of graves and bones. ‘In the cave there are skeleton’s of the old people. Their spirits are still there.’ (JD witness statement, para 28)
The evidence of the Kurungal and Gooniyandi native title parties establishes the existence of sites of particular significance to them within and around the proposed licence area. Tribunal mapping establishes that the Emanual Range is over the proposed licence area and the Kurungal and Gooniyandi claim areas, the Bloodwood Bore site partially overlaps the proposed licence area in the Kurungal claim area and Fossil Downs is within five kilometres to the north of the proposed licence and in the Gooniyandi claim area. I accept that there are areas and sites including burial grounds, skeleton remains, dreaming tracks, Law grounds and gender specific areas that are of particular significance to the native title parties within the proposed licence area. In relation to Chestnut Bore, which the Tribunal mapping establishes is about ten kilometres west of the proposed licence, and Christmas Creek and the Wangkatjungka Aboriginal community, located approximately twenty kilometres south, I accept that these sites and areas are of particular significance to the Kurgunal native title party, but it is unlikely that they will be interfered with by exploration on the proposed licence area, given their location. The relevance in this case is to reinforce the evidence that the general area of the exploration licence is rich in sites which are of particular significance to one or other of the native title parties.
The evidence provided by the native title parties in relation to sites is uncontested and I accept that it establishes the existence of a number of sites in the general area of the proposed exploration licence, most of which are, given their nature, of particular significance to the native title parties. The portion of the Kurungal native title claim overlapping the proposed licence is relatively small (less than 15 per cent) but there are registered sites on this portion of the subject area (including Bloodwood Bore) and it is within the general area of significance to the Kurungal native title party which stretches south-west, to the area of Christmas Creek pastoral lease as evidenced in the affidavits of Butcher Wise (para 18) and Billy Chestnut (para 17), and noted above.
I am satisfied that Bloodwood Bore, the ceremonial sites and law grounds, Gender specific areas, and the areas associated with the male dreamtime story, Paliyarra, are all areas or sites of particular significance to either one or both of the native title parties. I am further satisfied that the burial sites identified in the evidence, by their very nature, are sites of particular significance to both native title parties. While the evidence does not locate all the sites within the proposed licence area a considerable number of them fall within it.
I can also safely infer that many of the sites on the Register are of the relevant kind given their characteristics including eight closed sites which are wholly within, partially overlap or abut the registered claims of the native title parties. Of the twenty five registered sites which overlap one or both of the native title parties’ claim areas, a majority are mythological with some skeletal material/burial sites, which by their nature, permit an inference that they are sites of particular significance to the relevant native title party. The mapping evidence also establishes that there are a considerable number of registered sites surrounding the proposed licence and particularly to the north-east.
The affidavit of Butcher Wise, and witness statements of Billy Chestnut and June Davis evidence concerns about mining companies entering Kurungal and Gooniyandi claimed land without permission and consultation with traditional owners. All three deponents say that strangers must ask permission when they come onto country because there are a lot of special places in and around the area of the proposed licence (BW affidavit para 28, BC witness statement para 24 and JD witness statement para 38) and that if they enter without permission and guidance, they might interfere with important sites. Butcher Wise affirms that they are frightened of strangers entering the country uninvited because ‘we know that strangers don’t follow our Law. That’s why they have to meet with us’ (BW affidavit para 26). Billy Chestnut says mining companies don’t know this country and ‘they don’t know what they are disturbing, interrupting or ruining (para 24).’ The evidence is corroboration of the fact that the areas and sites identified in the evidence are of particular significance to the native title party in accordance with their traditions.
Taking into consideration the whole of the evidence, I am satisfied that the area of the proposed licence which overlaps the Kurungal and Gooniyandi claim areas is rich in sites of particular significance to the native title parties in accordance with their traditions.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein).
The grantee party indicates in its Statement of Contentions (GPSC) that it will carry out its work program in compliance with all legislative requirements including the AHA and Mining Act and will comply with all tenement conditions imposed by the Government party (paras 5 and 7) and further contends that it has never been prosecuted under or accused of breaching the AHA (para 6).
The grantee party also indicates the following:
Preparedness to enter into a heritage protection agreement with the native title parties based on the Regional Standard Heritage Agreement (RSHA) that operates in the Pilbara (GPSC para 2);
Awareness of registered sites within the proposed licence and belief that the current regulatory regime will provide adequate protection (GPR para 2 and 3);
The tenement is ‘greenfields exploration’ and no modern work has been conducted on the area of the proposed licence (GPSC para 9);
Exploration planned includes reconnaissance sampling and geological mapping; interpretation of available seismic data; and drilling of targeted areas (GPSC para 10). It includes soil sampling, rock chip sampling and down hole geophysical logging and survey (GPR para 14);
The ‘majority’ of work ‘will be non-ground disturbing’ and that the ‘work that is ground disturbing will be broad spaced traverses and would only be considered minor disturbance’ (GPSC para 11);
Where the grantee party proposes to conduct activities that could ‘excavate, destroy, damage, conceal or in any way alter an Aboriginal site, it procures that the subject area is surveyed for sites (whether registered or unregistered), by those nominated for the purpose by the Traditional Custodians of the land under a RSHA or if the Traditional Custodians elect not to conduct such survey for whatever reason, then by a suitably qualified and experienced anthropologist and/or archaeologist, in order to avoid any such impact’ (GPR para 13);
Attempts to negotiate an Alternative Heritage Agreement (KLC Agreement) were unsuccessful (GPR para 15), due to issues relating to costs and rights under the AHA (in particular s 18). The grantee party confirms that the cost issue does not relate to the cost of conducting heritage surveys but rather the cost of community benefits in the KLC Agreement. Further the grantee party is only a junior exploration company and the costs to be paid in accordance with the KLC agreement diminish its exploration potential (GPR para 16).
While the grantee party’s evidence suggests that the rights given under an exploration licence may not be exercised to their fullest extent, the evidence establishes that there will be ground disturbing activity with the potential to interfere with significant Aboriginal sites. Soil sampling, rock chip sampling and drilling all have the capacity for interference with a site of particular significance to the native title parties.
The grantee party’s contentions about the reasons for the failure to reach agreement with the native title parties on the KLC agreement are only relevant to confirm the grantee party’s intentions to take steps to make it unlikely that there will be interference with sites. However, the reasons for the breakdown in negotiations are not otherwise relevant as, in the absence of agreement, the Tribunal’s task is confined to considering whether the expedited procedure is attracted based on the factors in s 237 of the Act. This does not involve the exercise of a discretion of the kind exercised by reference to s 39 of the Act in relation to a future act determination. For the same reason, the fact that the grantee party is a junior exploration company is not relevant in the context of s 237.
There is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA and its contentions reveal an awareness of its obligations in this respect. The fact that the grantee party was prepared to enter into a heritage agreement is a relevant factor which indicates the grantee party’s awareness of the need to avoid interference with sites of particular significance. My determination is based on the presumption of regularity which presumes that the grantee party will act lawfully. In this case the presumption is supported by the actions taken and statements made by the grantee party.
However, despite the intentions of the grantee party and presumption of regularity I am satisfied that this is a case where the protective provisions of the AHA will not be adequate to ensure that interference with sites of particular significance is unlikely to occur. Given the nature and extent of the sites of particular significance which have been identified and that the area of the proposed licence is site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38). While the grantee party indicates awareness of registered sites in the proposed licence areas, and is now on notice that other sites may exist, the exact location and extent of some of those sites is unknown and unless there is close liaison between the native title parties and grantee party through negotiation and agreement, I find there is a real risk of interference with them.
Many of the sites on the Register are identified by reference to a buffer zone of ten square kilometres making it important for consultation and negotiations to occur in relation to the precise dimensions of the site. While such negotiations may not be necessary where there are only relatively few sites, the proposed licence area contains a considerable number of registered sites delineated by the buffer zone and others where the precise location will need to be the subject of negotiations if interference with them is to be avoided. This is a case where the site rich nature of the proposed licence area means there is a real risk of interference, despite the intentions of the grantee party to comply with the site protection regime based on the AHA i.e. it is a case where the regulatory regime is not adequate to prevent the likelihood of interference with sites of particular significance to the native title party in accordance with their traditions.
My findings in relation to s 237(a) and s 237(b) of the Act are consistent with those made in three other objection inquiries in the general area involving the Gooniyandi native title party (see Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined 2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, NNTT WO09/395 and WO09/396, [2010] NNTTA 70 (20 May 2010), Hon C J Sumner at [57] and two other cases cited therein).
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to ss 237(a) and 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1896 to Cullen Exploration Pty Ltd, is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
23 August 2010
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