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 70
•20 May 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 70 (20 May 2010)
Application Nos: WO09/395 and WO09/396
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Butcher Wise & Others on behalf of the Kurungal Native Title Claimants (WC97/101) (Kurungal native title party)
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Butcher Cherel & Others on behalf of the Gooniyandi Combined 2 Native Title Claimants (WC00/10) (Gooniyandi native title party)
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The State of Western Australia (Government party)
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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: 20 May 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
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Hon C J Sumner
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
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
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: Ms Claire Malavaux, Department of Mines and Petroleum
Representative of the
grantee party: Mr Shannon McMahon, McMahon Mining Title Services P/L
REASONS FOR DETERMINATION
On 11 February 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 E04/1838 (‘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 11 June 2009 the following registered native title claimants and native title parties made expedited procedure objection applications to the Tribunal in respect of the proposed licence:
Butcher Wise and Others on behalf of the Kurungal native title claimants (‘the Kurungal native title party’) (WC97/101 – registered from 1 December 1997) – overlap 48.09 per cent of the proposed licence area (WO09/395); and
Butcher Cherel and Others on behalf the Gooniyandi Combined 2 native title claimants (‘the Gooniyandi native title party’) (WC00/10 – registered from 23 April 2001) – overlap 9.77 per cent (WO09/396).
No other native title claims overlap the proposed licence area.
The proposed licence comprises an area of 626.57 square kilometres located 65 kilometres southerly of Fitzroy Crossing in the Shire of Derby-West Kimberley.
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 (11 June 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 9 December 2009, following a number of conferences and requests to extend the time required for compliance with directions in an attempt to negotiate a heritage protection agreement, the grantee party representative reported that the grantee party had substantial concerns regarding the agreement and, although it intended to provide written comments to the native title parties, was doubtful agreement could be reached. The parties agreed that the matter should proceed to an inquiry, subsequent to which contentions and evidence were provided by each party by 21 April 2010.
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)).
At the listing hearing on 15 April 2010, the native title party representative, Ms Ania Maszkowski, advised that the unsigned affidavits submitted by the native title parties would be signed at the next meeting of the native title parties. Subsequently the Tribunal was advised that the next Gooniyandi meeting had been postponed to the last week of May at the earliest and possibly would not be held before mid June 2010. This was because of the death of two young persons from the Ngumpan community and the resulting mourning camp. Further, one of the witnesses, Ms Topsy Chestnut, had been admitted to hospital. Ms Hema Hariharan, solicitor for the native title parties, advised that the information for the draft affidavits had been obtained by the Kimberley Land Council (‘KLC’) representative by transcribing the evidence into notebooks after interviewing each of the witnesses, confirming the evidence with them and subsequently compiling the information in affidavit form. I can safely infer that the draft affidavits would be executed and affirmed by the native title parties’ witnesses substantially in the form prepared by KLC officers.
Because of the likelihood of delay in executing the affidavits the Tribunal wrote to the parties and informed them of the situation, advised that it was considering whether to accept the unsigned affidavits as evidence and sought submissions on the issue. As a matter of courtesy the parties were advised that on the basis of the evidence then before the Tribunal (including the unsigned affidavits) the determination would be that the expedited procedure was not attracted. The Government party responded that it would take no issue with the acceptance of the unsigned affidavits into evidence if the Tribunal is satisfied that it is appropriate to do so in all the circumstances of a particular matter. In light of the Tribunal’s foreshadowed determination the Government party also provided (on 12 May 2010) a further statement of contentions. No submissions were made by the grantee party on this issue.
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. I have had regard to the further contentions of the Government party and where appropriate have referred to them in these reasons but as they did not cause me to revise my foreshadowed view that the expedited procedure was not attracted did not seek a response to them from the native title parties.
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 to be as follows:
Christmas Creek Pastoral Lease 3114/1257 (48 per cent overlap);
Gogo Pastoral Lease 398/810 (51.9 per cent overlap);
Crown Reserve 35196 for the use and benefit of Aboriginal inhabitants (less than 0.1 per cent overlap); and
Road Reserve (less than 0.1 per cent overlap).
There is a National Heritage Listing (NHL/106063, The Kimberley) over 89.9 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’.
There are no Aboriginal communities identified inside the area of the proposed licence however the Aboriginal communities of Ngalingkadji and Wangkatjungka, wholly located within the Kurungal claim, abut the proposed licence area to the north and south respectively. There is a large number of Aboriginal communities situated within a twenty to thirty kilometre radius of the proposed licence area.
Department of Indigenous Affairs (‘DIA’) documentation provided by both the Government party and the native title party reveal nineteen sites registered under the Aboriginal Heritage Act 1972 (WA) overlapping the proposed licence as follows:
Site ID 12647 – Tjilatji/Christmas Creek (mythological, skeletal material/burial – permanent register, open access, no restrictions), significantly within the proposed licence and partially overlapping both native title party claim areas;
Site ID 12651 – Fig Tree Bore Area (artefacts/scatter – insufficient information, open access, no restrictions), partially within the proposed licence and partially overlapping the Kurungal claim area;
Site ID 12654 – Luraypa (named place – insufficient information, open access, no restrictions), partially within the proposed licence and partially overlapping the Kurungal claim area;
Site ID 12689 – Mandimalan (mythological, water source – permanent register, open access, no restrictions), slightly within the proposed licence and slightly overlapping the Gooniyandi claim area;
Site ID 13008 – Chestnut Bore (skeletal, material/burial – permanent register, open access, no restrictions), wholly within the proposed licence and wholly overlapping the Kurungal claim area;
Site ID 13223 – Ngumpan Community (ceremonial – permanent register, closed access, no restrictions), partially within the proposed licence and partially overlapping the Kurungal claim area;
Site ID 13424 – Flowing Bore (mythological, water source – permanent register, open access, no restrictions), wholly within the proposed licence but not overlapping either of the native title party claim areas;
Site ID 13431 – Cockatoo Bore (mythological, skeletal material/burial, artefacts/scatter, camp, water source – permanent register, open access, no restrictions), wholly within the proposed licence but not overlapping either of the native title party claim areas;
Site ID 13432 – Topyard Bore (ceremonial, mythological, camp, water source – permanent register, open access, no restrictions), wholly within the proposed licence but not overlapping either of the native title party claim areas;
Site ID 13433 – Baidbarra (mythological, man-made structure – permanent register, closed access, no restrictions), wholly within the proposed licence but not overlapping either of the native title party claim areas;
Site ID 13438 – Worrbirrba (mythological, quarry – permanent register, open access, no restrictions), significantly within the proposed licence and partially overlapping the Gooniyandi native title party and slightly overlapping the Kurungal claim area;
Site ID 13440 – Long Hole Billabong (ceremonial, mythological, – permanent register, open access, no restrictions), slightly within the proposed licence and slightly overlapping the Gooniyandi claim area;
Site ID 13441 – Bruten Hill (mythological – permanent register, open access, no restrictions), wholly within the proposed licence and partially overlapping the Gooniyandi claim area;
Site ID 13442 – Gandibal (mythological, camp, water source – insufficient information, open access, no restrictions), wholly within the proposed licence and partially overlapping the Gooniyandi claim area;
Site ID 13443 – Djabdub 1 (mythological, water source – permanent register, open access, no restrictions), wholly within the proposed licence but not overlapping either of the native title party claim areas;
Site ID 13444 – Wangeba (mythological, water source – insufficient information, open access, no restrictions), siginificantly within the proposed licence and partially overlapping both native title party claim areas;
Site ID 13484 – Bararaban (mythological, camp, water source – permanent register, open access, no restrictions), wholly within the proposed licence but not overlapping either of the native title party claim areas;
Site ID 13991 – Nipper Creek (mythological – permanent register, closed access, no restrictions), partially within the proposed licence and partially overlapping both native title party claim areas;
Site ID 14413 – Christmas Creek Area (painting – insufficient information, open access, no restrictions), wholly within the proposed licence and wholly overlapping the Kurungal claim area.
Government party documents indicate that a pending petroleum exploration permit 3/08-9 EP overlaps the proposed licence at 95.5 per cent. Further, the entire area of the proposed licence was released for geothermal acreage in 2009 and is covered by three proposed geothermal exploration applications (G09-157, G09-158 and G09-168) yet to be granted. There is no current mineral exploration or mining activity in the area of the proposed licence however one mining lease, with an overlap of less than 0.1 per cent, was active from 1992 to 1994. Similarly, a prospecting licence with an overlap of less than 0.1 per cent was active from 1996 to 1998. A large number of mineral claims and six temporary reserves were active variously between 1968 and 1984.
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).
In addition, the grant of the proposed licence will be subject to a condition requiring permission from the Minister responsible for the Mining Act 1978 prior to commencing any exploration activities on Use and Benefit of Aboriginal Inhabitants Reserve 35196 (condition 7).
The grant of the proposed licence will also be subject to conditions restricting mining activities in the vicinity of the Great Northern Highway or any other road and interference with the Aerial Landing Ground and Geodetic Survey Stations T229 and EN28 (conditions
8-10).
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; and
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.
Mr Shannon McMahon of McMahon Mining Title Services Pty Ltd for the grantee party provided a Statement of Contentions on 13 April 2010, as well as a response to the reply of the native title parties lodged on 21 April 2010. The proposed licence area is prospective for the discovery of coal. The grantee party sets out its intentions to comply with all relevant legislative requirements, including the Aboriginal heritage and mining regimes.
Evidence provided by the native title parties
The submissions of the Kurungal native title party (WO09/395) include the unsworn affidavit of Butcher Wise (‘BW affidavit’) made in the following terms:
‘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 60 years old. I was born in Kurungal country. I belong here. Kurungal is our name for the whole of Christmas Creek Station and Surrounding Areas, but is also the name for a spring on that 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 E04/1838, “the exploration licence area”, very well, because I have been shown a map of the exploration license area. The exploration license area is on Gooniyandi and Kurungal country. The map I was shown 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. Christmas Creek Station is on the exploration license area.
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 tenement 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 tenement area. They used to tell us stories. Today, we still visit that place for law and ceremony.
17. Chestnut bore in the northern part of the exploration license area is a very special lace for the Kurungal People. We travel that whole area and down the river. There is a billabong inside the exploration license area. 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 mens story.
18. There is another man’s story about Paliyarra that includes the exploration license are at Bloodwood bore, where a goanna camped there and went hunting. It is a man’s story I can’t say anymore.
19. We have a cemetery on Kurungal country which is inside the exploration license 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.
20. 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 tenement 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.
21. 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.
22. 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
23. 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.
24 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.
25. 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.
26.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.
27.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 contentions of the Gooniyandi native title party (WO09/396) include the unsworn affidavits of Topsy Chestnut (‘TC affidavit’) and Louise Chestnut (‘LC affidavit’) made in the following terms:
‘AFFIDAVIT OF TOPSY CHESNUT (sic)
I, Topsy Chestnut, of Ngalingkadji Community, on Christmas Creek Station near Fitzroy Crossing, in the State of Western Australia, affirm:
1.My name is Topsy Chestnut. My Aboriginal name is Nyoorloorna. I have Nyawoorroo skin, or subsection identity.
2.I am one of the senior people for the Gooniyandi Native Title Determination Application WAD 6008/00. I speak the Gooniyandi language.
3.I know the area where Cullen Exploration Pty Ltd “the grantee party”, have applied for exploration number E04/1838, “the exploration area”, very well, because I have been shown a map of the application area. The maps I was shown is attached to this affidavit and marked “A”.
4.I was born at Louisa Downs Station, but came to Christmas Creek as an infant. I took my first steps in the Bloodwood Bore. When I was a small child I moved all through which is in and around the tenement area, with my parents. My parents worked throughout the tenement area, we lived on Gooniyandi country as a family and all around Christmas Creek, GoGo Station and Fossil Downs Station.
5.I live at Ngalingkaji Community, on the Christmas Creek Pastoral Lease, which is in the tenement area. My community gets its name from Ngalinggaji, an area near where we live. Ngalinggaji is the name of the creek there. My family started the community back in the 1980s. Ngalingaji is apart of Gooniyandi country. Gooniyandi people, my people are from that country, we are Dawa or Traditional Owners for this country. That is my mothers’ country.
6.We call that Christmas Creek area Gooroongal or Kurungal. The Walmajarri spelling is Kurungal. My old people come from the area in and around the tenement. My Marriyali, my grandmother’s father, Walgirdi, came from Maroowarr, or Christmas Creek. Walgirdi is my son-in-law blackfella way, skin way. My Joogoo, my great-great-grandfather from my mother’s side, Loombarjri, used to live at Ngalinggaji before. He is my son skin way. He died at Ngalinggaji a long time ago. We never had to ask anybody for permission to live at Ngalinggaji, because we are Dawa for this country. We only had to ask white people from the station for this block.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
7.The exploration licence area fall, in Kurungal and Gooniyandi country.
8.There are many sacred and important sites throughout Kurungal country. There are several ceremony and law grounds there in & around the exploration license area. These places are important to my people, they are apart of our culture and what our old people taught us.
9.There is good hunting and fishing throughout the exploration licence area. We hunt Goanna (Wanwanyi), snakes, Frogs, Bush Turkey and Kangaroo, what we call Walumba inside the exploration area.
10.When I was a young girl we always went hunting and fishing in and around Christmas Creek. My mothers Renee Chestnut, Suzy Laney, my grandmothers, and the old girls from the station, Nola, Mary and Nelly, taught us how to go out fishing properly. We were taught how to get Jalinyi, Moon Grub and Jadoo, grasshopper, as well as frogs, as bait. The old girls from the station taught us how to dig frogs up from the ground. We continue to use that bait whenever we go to the river for fishing.
11.When we hunt for goanna and frogs, we use a digging slick. That stick, we make out of Barnbara that Whitewood tree that is all through the exploration license area. This is the same wood that we use to make fighting sticks. Old people used to hunt on foot, right up along Maroowarr, the Christmas Creek, looking for gawi or fish, wanyjirri, or river kangaroo, and wawanyi, or goanna. When we hunt for these animals, nowadays we use rifles to hunt them.
12.In Christmas Creek we would fish jambinbaroo, brim, balga or barramundi as well as goorloomangarragi, what white people call catfish, sometimes after a good wet season. When I was a little girl, I was taught how to push fish up the bank using a bush. Everybody walks in a line to push along the fish toward the sand bank. We use White River Gum and yimala with the little black fruit on it, we break off a branch and block the fish from getting through, forcing them forward onto the bank.
13.In and around the exploration licence area, we collect different types of bush foods and medicines. We still go out and collect langarndi (Witchetty Grub) from the trees in that area, we collect ngalinya, sugar bag from them trees too. We get bryli or koongkuberry from the area in and around the exploration licence. We use that tree for different things including for smoking babies, and using the smoke for getting rid of spirits and when someone passes away. You can use that tree to help with colds aswell, we boil it up and use it like tea or cough medicine. We use Jooloomoorndoo for colds as well, we use its like Vicks. Jooloomoorndoo has a smell that helps you when you have a cold.
14.We use that jarlaloo tree, that Whitewood tree to make a Coolamon. You can find lots of these trees near Chestnut Bore. My mother used Coolamon to carry me, my sister Louise Chestnut used Coolamon to carry her son Flynn when he was a baby. Louise still makes Coolamons out of jarlaloo.
15.In the country in and around the exploration licence area, we collect different types of ochre for use in Junbu or ceremony. The yellow ochre you can find in the exploration license area is rubbed on the boys for dancing during Junbu. My sister Louise uses the white ochre, what we call Galardi, to paint her body for Junbu. We use all three colours of ochre, white, red and yellow for Junbu for law time, a ceremony for smoking someone and when someone dies.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
16.I know Gooniyandi country very well, that is the country that the exploration licence is in and around. There are many places in that area that are sacred and important to my people, including in the exploration licence area.
17.There are burial sites where our old people lay, on that country that the exploration licence is on. Those burial sites are in the Chestnut Bore area. It is an important area because our old people are buried there, we don’t want that area disturbed, it is a burial site.
18.The area around Christmas Creek, including the exploration license area is known as Kurungal country. We still do Junbu in that country. There are many ceremony grounds there. These are very important places.
19.The old people used to do ceremony there in the tenement area. They used to tell us stories. Today, we still visit those places for ceremony and to fish and hunt there.
20.There are places with artefacts and scatter all around that place including Fig Tree Bore in the exploration license area. There are paintings from our old people right around the Christmas Creek area, in and around the exploration licence area. This area is special to us. We don’t want like people getting to close too that area.
21.There are camps of our old people in that country too. We remember the camps of our old people around the Christmas Creek area.
22.It is important for us to look after these places, to look after the country and the stories. The old people told us these stories for these places, and for our law and culture, we have to make sure that we look after and pass it on to our young people. We want to continue this so that our country and law go on.
23.Other people coming through our country need to ask permission to. Mining companies are the same, this is our country. They should come and speak to us about what they want to do in our country and where they want to go, so that we can tell them if they can go to that place, or which places are important, and they shouldn’t go to that place.
MAJOR DISTURBANCE TO LAND OR WATER
24.I am aware of the activities which the grantee party could do on the exploration licence under the Mining Act if they are granted the exploration licence.
25.People who are not from my country must ask permission when they come onto my country because we have special sites in that area, that we do not want disturbed or ruined. Strangers do not know where our important places are. If they enter our country without our guidance they might interfere with our important places.
26.People who are not from our country do not know where our important ceremonial places are or when we do Junbu. They do not know our law and culture, and they might come in to our country at the wrong time, like when law time is on. They don’t know this country, they might go somewhere that they are not supposed to. They may disturb a place that they are not meant to go to.
27.Other blackfellas, who are not from this country, know not to just come without permission or being invited. They know to check with the people if it’s all right to come on to country at that time, and what places they shouldn’t go to. That’s what white people should do, they just come without asking or talking to anyone.
28.This is our country, people should ask to come to our home like white people have to do for other white people. They must check with us first, if we don’t like what they are saying they want, they must leave our country. If we say ‘yes’ to them coming onto our country and make money out of it, there should be something that we get in return. Just a little bit to help our community, because they are taking something from the land in our country. It might be something like money to help make our community better or something like that.
29.If we agree to make an agreement with the people who want to mine our country, we will tell them or show them where they can and can’t go. We don’t want them to come and interfere with any of our important places. If we let them come onto our country, they cannot do anything to these places. If we say they can start drilling, we want them to give us something to help the community in return. This money could be used to help with roads, or lights or an office. This is the right way because we are the people who look after this country.’
‘AFFIDAVIT OF LOUISE CHESNUT (sic)
I, Louise Chestnut, of Ngumpun Community, near Fitzroy Crossing, in the State of Western Australia, affirm:
1.My name is Louise Chestnut. My Aboriginal name is Barrangali. I have Nangala skin, or subsection identity.
2.I am one of the senior people for the Gooniyandi Native Title Determination Application WAD 6008/00. I speak the Gooniyandi language.
3.I know the area where Cullen Exploration Pty Ltd “the grantee party”, have applied for exploration number E04/1838, “the exploration area”, very well because I have been shown a map of the application area. The maps I was shown is attached to this affidavit and marked “A”.
4.I was born at Chestnut Bore I grew up there. Chestnut Bore is in and around the tenement area. I moved to GoGo Station as a child, with my family. I lived with my older sister, my little brother Billy Chestnut, and our parents.
5.I live at Ngumpun Community with my husband, near the tenement area. I am connected to the tenement area through my mother; she was a Gooniyandi woman from the tenement area.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
6.The exploration licence area falls within Gooniyandi and Kurungal country.
7.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.
8.There is good hunting and fishing in many parts of the exploration licence area. We hunt Walumba (small Kangaroo) and bush turkey inside the exploration licence area. In the old days we would hunt these with spear, but now we go and shoot them. We get goanna or Wawunyi, snake and frogs using a digging stick made from Barnbara, which is Whitewood tree.
9.We go fishing in around the tenement area, often. In Christmas Creek, we go fishing for Barramundi (Balga), Catfish (Goorloomangarragi) and Brim (Jambinbaroo). Depending on whether or not it was a good wet season, we sometimes catch sawfish or Ngarngoo in that country.
10.There are several sacred and important sites throughout Gooniyandi country. There are several ceremony and law grounds there in around the exploration license area. These places are important to my people. These places are apart of our traditions and our law and culture.
11.We use the tenement area to collect different bush fruits and medicines. We find Witchetty Grub (Lagarndi) and Sugar Bag (Ngalinya) from the trees in around the tenement 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 Jooloornoorndoo, this is used to help fight colds as well. We also collect Gordirda, or bush apple and Junda, bush onion. 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.
12.I have used the wood from jarlaloo to make a Coolamon. We call coolamon Yamadi in our language. In the old days, old people would use Coolamon to carry babies and food. I made a Coolamon when my son Flynn was born, I carried him in the Coolamon. There are a lot of these Jarlaloo trees near Chestnut Bore.
13.We collect three different types of ochre in the country in and around the tenement area. We use the red, white and yellow ochre in Junbu, or 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 tenement area.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
14.I know the Gooniyandi country and Christmas Creek 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 culture and traditions of my community.
15.Gooroongal is a place where we still have ceremony today. The old people used to do ceremony in that country, and we still do law ceremonies and Junbu in that area, today.
16.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.
17.There are sacred site in that area that we have to look after. There are artefacts and scatter and different places including Fig Tree Bore. All through the tenement area are 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, places for ceremony and law grounds.
18.There are areas that are ceremony and law grounds. This area is special to us. We don’t want like people getting to close to that area.
19.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.
20.Mining companies should ask permission and show us respect as the traditional owners. How would they feel if we did that same thing to there 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.
MAJOR DISTURBANCE TO LAND OR WATER
21.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.
22.White people and mining companies 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 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 if they touch any sacred site. We know that white people don’t follow our Law. That’s why white people 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.
23.If we agree to make an agreement with the people who want to mine our country, we will tell them or show them where they can and can’t go. We don’t want them to come and interfere with any of our important places. If we let them come onto our country, they cannot do anything to these places. If we say they can start drilling, we want them to give us something to help the community in return. This money could be used to help with roads, or lights or an office. This is the right way because we are the people who look after this country.
24.If the mining company wants to come onto our land they must ask us first. If they do this, we can tell them where our important places are, and that these must not be disturbed. We can show them the places that they shouldn’t go on country. If we allow them to come, they cannot damage or change these places, our sacred places. If we let them come onto country, they should give us something for this, something of what they make from that mining they do. Maybe we could use this to help fix the community. We are Dawa or traditional owners for this country. This is the right way.’
The evidence of Topsy Chestnut and Louise Chestnut is uncontested and I accept it. Topsy Chestnut and Louise Chestnut say they are senior people for the Gooniyandi application. Topsy Chestnut is a named applicant for the Gooniyandi native title claim and therefore has the necessary authority to speak for country on behalf of Gooniyandi. Although Louise Chestnut is not one of the persons comprising the applicant and registered Gooniyandi native title claimant, I accept that she is a member of the Gooniyandi claim group and also has the necessary authority to speak for country on behalf of Gooniyandi.
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 Ngalingkadji and Wangkatjungka abut the proposed licence area and that there are a number of Aboriginal communities in the near vicinity. Butcher Wise and Louise Chestnut depose to belong to the Ngumpan Community which is some five kilometres north-easterly of the proposed licence. Topsy Chestnut deposes to living at Ngalingkadji Community adjacent to the northern border of proposed licence. Both communities are located within the Kurungal claim area. Although Topsy Chestnut and Louise Chestnut belong to the Gooniyandi native title party, both live within the Kurungal claim area and the evidence suggests that the activities of the Gooniyandi native title party extend beyond their claim area including to the area of the Kurungal claim and the proposed licence area.
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 Gooniyandi and Kurungal 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 very little exploration and mining activity has occurred in the area of the proposed licence over the years. Although one mining lease, active from 1992 to 1992, overlapped less than 0.1 per cent of the proposed licence area, there is no specific evidence to support a finding that there has been or currently is any appreciable effect on the native title parties’ community or social activities from exploration and mining activity. 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 could have had such effect but 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.
Government party documents reveal that the area of the proposed licence which overlaps the native title parties’ claim areas is 6,122.11 hectares (Gooniyandi) and 30,138.03 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 62,657.02 hectares. Further, the area of the Kurungal People’s claim is approximately 1,248 square kilometres and the area of the Gooniyandi Combined 2 People’s claim is some 11,209 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 facts of this case demonstrate that the native title parties’ community or social activities will be directly interfered with even though they are also carried out in areas which extend beyond the proposed licence area.
The Tribunal must have 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 two established Aboriginal communities abutting the proposed licence and a number more in the very near vicinity. The evidence of Butcher Wise, Topsy Chestnut and Louise Chestnut establishes that contemporary activities occur across the proposed licence, including hunting, fishing, gathering and collecting ochre for ceremonies.
With respect to the Government party’s further contentions I make the following observations. First, 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. Second, based on the Federal court decision in Smith I accept the Government party’s submissions that the direct interference must be substantial and more than trivial in its impact. The native title parties’ contentions (NTPSC para 15) that insubstantial impacts are encompassed by direct interference is rejected. Third, the Government party says that the evidence of community or social activities in the three affidavits are described in vague terms as to the frequency and location of their activities. I have already dealt with this contention and reaffirm that the circumstances of this case (particularly the proximity of a number of Aboriginal communities) take it out of the usual category.
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 three closed and sixteen open access sites within the proposed licence however six of those sites, including one closed site, do not overlap the registered claims of the native title parties. 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 a condition will be imposed on the grant giving the Gooniyandi native title party the option to require the grantee party to be bound by the Regional Standard Heritage Agreement 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.
In relation to the Kurungal and Gooniyandi native title parties, the evidence of Butcher Wise, Topsy Chestnut and Louise Chestnut establishes the following facts which support a finding that the sites identified below lie within or in the vicinity of the proposed licence:
Chestnut Bore, described as ‘a very special [p]lace for the Kurungal People’ (BW affidavit para 17) that is associated with a male dreamtime story. Topsy Chestnut and Louise Chestnut identify Chestnut Bore and the surrounding Christmas Creek area as a place where burial sites are located (TC affidavit para 17 and LC affidavit para 16). Mr Wise notes the presence of a cemetery on Kurungal country which is located inside the proposed licence ‘where all our family are buried’ (para 19), but it is not clear on the face of the evidence if this cemetery is located in or around the Chestnut Bore area. Tribunal mapping locates Chestnut Bore within the northern portion of the proposed licence abutting the Gooniyandi claim area and wholly within the Kurungal claim. Evidence provided from the DIA Register supports the presence of burial sites over the proposed licence in the areas identified by the deponents. The registered sites of Tjilatji/Christmas Creek (ID 12647) and Chestnut Bore (ID 13008) classified as skeletal material/burial sites and Tjilatji/Christmas Creek is further noted as a mythological site. Chestnut Bore overlaps the Kurungal claim area and Tjilatji/Christmas Creek overlaps both claim areas.
Ceremonial sites and law grounds (BW affidavit paras 20 to 22, TC affidavit paras 18 and 19 and LC affidavit paras 15 and 18). Although the location is not specifically identified in all cases the evidence satisfies me that these places exist on the area of the proposed licence. Mr Wise says that he went through the Law at Kurungal, including inside the proposed licence near Wangkajunka (para 20). I understand Mr Wise is referring to the abutting Aboriginal Community identified in Tribunal mapping as Wangkatjungka and I can accept that there are law grounds located in the very near vicinity of Wangkatjungka and within the proposed licence area and wholly overlapping the claim of the Kurungal native title party. DIA evidence supports the deponents’ evidence as to ceremonial sites said to be of importance to both native title parties within the proposed licence area. The registered site of the Ngumpan Community (ID 13223) is classified as ceremonial with closed access and is located a short distance from Wangkatjungka in a north-easterly direction and the boundaries of it are within the Kurgunal claim and the proposed licence area. One further registered site with open access and of ceremonial and mythological classification is Long Hole Billabong (ID 13440) which slightly overlaps the proposed licence and falls entirely within the Gooniyandi native title claim. There is also an additional registered site identified as a ceremonial and mythological site (Topyard Bore – ID 13432) which is located wholly within the proposed licence area but does not overlap either of the claim areas but is corroborative of the fact that the general area is one which is rich in Aboriginal sites.
In relation to the Kurungal native title party specifically, Mr Wise provided information as to the following site:
Paliyarra, a male dreamtime story that includes the area of the proposed licence and Bloodwood Bore where a goanna camped and went hunting. Mr Wise says it is a ‘man’s story I can’t say anymore’ (para 18). Tribunal mapping establishes Bloodwood Bore as approximately five kilometres from the proposed licence area.
I accept that this is a site of particular significance to the Kurgunal native title party but it is unlikely that it will be interfered with by exploration on the proposed licence area given its location and the fact that the grantee party has knowledge of it. Its 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.
Topsy Chestnut and Louise Chestnut provided evidence as to the following sites in relation to the Gooniyandi native title party:
The presence of artefacts and scatters throughout the area including Fig Tree Bore (TC affidavit para 20 and LC affidavit para 17). There are also camps ‘of our old people’ (TC affidavit para 21) and paintings ‘from our old people right around the Christmas Creek area, in and around the exploration licence area. This area is special to us. We don’t want like people getting to close too that area’ (TC affidavit para 20). Although the precise location of Fig Tree Bore is not given, the open access registered site of Fig Tree Bore Area (ID 12651) partially overlaps the southern segment of the proposed licence area and the Kurungal claim area but does not overlap the Gooniyandi claim area. Its classification as an artefacts/scatter site supports the evidence of the two deponents.
- Other important sites in the Christmas Creek area (LC affidavit para 16) although the evidence is not specific as to what those particular sites are and why they are of importance to the Gooniyandi native title party.
All three deponents make repeated mention of Christmas Creek. The use of Christmas Creek as an identification point in the evidence is somewhat ambiguous given the number of areas identified as Christmas Creek. Firstly, Christmas Creek is the name of the pastoral lease which overlaps half of the proposed licence area and the entire Kurungal native title claim. Although the pastoral lease does not overlap the Gooniyandi claim, members of the Gooniyandi native title party, such as Topsy Chestnut and Louise Chestnut, live at Aboriginal communities located on the Christmas Creek pastoral lease and identify the Christmas Creek area as Gooroongal or Kurungal (TC affidavit para 6 and LC affidavit para 7). Second, the next Christmas Creek location is the river, identified as Christmas Creek, which runs through a significant portion of the proposed licence in a north-easterly direction and passes through the registered claims of both native title parties. The third Christmas Creek location is that on the DIA Register, noted as Tjilatji/Christmas Creek (ID 12647), which is listed as a mythological, skeletal material and burial site. The evidence is therefore unclear as to pin point the specific location of places identified generally in the affidavits as ‘that Christmas Creek area’ (LC affidavit para 16 for example) and whether it is the river, the area around Chestnut Bore which is a registered site (Tjilatji/Christmas Creek) or the Christmas Creek pastoral lease which wholly overlaps the registered claim of the Kurungal native title party and extends beyond the proposed licence. Nevertheless, I am satisfied, taking account of the various references to Christmas Creek and other evidence that there are sites of particular significance to the native title parties on the area of the proposed licence. In general terms this is confirmed by Topsy Chestnut (TC affidavit para 17).
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. I note that the portion of the Gooniyandi native title claim overlapping the proposed licence is relatively small (less than 10 per cent), however, it is clear that registered sites occupy this portion of affected land, and the general area of significance to the Gooniyandi people stretches easterly, beyond the official boundaries of the claim area, to Fig Tree Bore and the general area of the Christmas Creek pastoral lease as evidenced in the affidavits of Topsy Chestnut and Louise Chestnut and noted above.
I am satisfied that Chestnut Bore, the ceremonial sites and law grounds, Fig Tree Bore area, and the areas associated with the male dreamtime story, Paliyarra, are all areas or sites of particular significant 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.
I can also safely infer that many of the sites on the Register fall into this category given their characteristics including two closed sites which overlap the registered claims of the native title parties. Of the thirteen registered sites which overlap one or both of the native title parties, 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 affidavits of Butcher Wise, Topsy Chestnut and Louise Chestnut 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 25, TC affidavit para 25 and LC affidavit para 22) and that if they enter without permission and guidance, they might interfere with important sites. Mr Wise and Louise Chestnut (para 22) depose 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 25). 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 lease which overlaps the Kurungal and Gooniyandi native title parties and the surrounds 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 6 and 8) and further contends that it has never been prosecuted under or accused of breaching the AHA (para 7).
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, given the ‘major issues with the AHA [Alternative Heritage Agreement] related to the removal of Cullen Exploration’s legal rights and costs’ (GP response to NTP reply to GPSC (‘GRP’) para 2);
Awareness of registered sites within the proposed licence and belief that the current regulatory regime will provide adequate protection (GPR para 3);
Planned exploration for the proposed licence includes reconnaissance sampling and geological mapping, interpretation of available seismic data and drilling of target areas for coal (if warranted by previous results) (GPSC para 11); and
Limited and minor ground disturbing activities, if at all, noting that ‘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 13).
The grantee party also says (GPSC para 12) that as the exploration is for coal, it will be ‘less intensive in the initial stages in terms of drilling than exploration for materials’. In the absence of more definite evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning may be required, particularly as the grantee party concedes that the ‘less intensive’ activity is at the initial stages of coal exploration. While 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 which may progressively increase depending on the results of initial exploration activity.
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.
The grantee party further contends that the chances of mineral discovery is minimal, taking into account the small number of granted and pending mining leases in comparison to the high proportion of granted and pending exploration licences in Western Australia (GPSC para 14). In my view this is not a factor relevant to this inquiry. The Tribunal must consider only the effect of the proposed future act (i.e. the grant of the exploration licence and the exploration activity which is likely to be carried out pursuant to it) on the three limbs of s 237, and not enter into speculation over the potential to discover a resource and progress to mining.
Taking all these factors into account, and particularly the nature and extent of the sites of particular significance which have been identified and that the area of the proposed licences 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 10 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.
With respect to the Government party’s further contentions I make the following observations. The Tribunal has long accepted that unless there is evidence to the contrary, the Tribunal will act on the basis of a presumption of regularity which presumes that the grantee party will act lawfully and I have done so in this case. The Tribunal further accepts that the Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [75]-[77]) found on the facts of that case that the protective effect of the AHA was such as to make interference with sites of particular significance remote but does not accept that this is an inevitable finding in all objection inquiries. There are circumstances where the regulatory regime, including a grantee party acting lawfully and being bound by a RSHA and the obligation to conduct a heritage (site) survey will not be sufficient to render interference with a relevant site unlikely (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [29]-[35]). This is such a case.
My findings in relation to s 237(a) and s 237(b) of the Act are consistent with those made in two other objection inquiries in the general area involving the Gooniyandi native title party, namely Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Hon C J Sumner and Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner.
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 E04/1838 to Cullen Exploration Pty Ltd is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
20 May 2010
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