Charlie Lapthorne and others on behalf of the Thudgari People/Western Australia/Global Stone Group Inc
[2002] NNTTA 231
•13 November 2002
NATIONAL NATIVE TITLE TRIBUNAL
Charlie Lapthorne and others on behalf of the Thudgari People/Western Australia/Global Stone Group Inc, [2002] NNTTA 231 (13 November 2002)
Application No.: WO01/581
IN THE MATTER of the Native Title Act 1993 (Cth)
and
IN THE MATTER of an inquiry into an expedited procedure application
Charlie Lapthorne and others on behalf of the Thudgari People (Native Title Party)
and
The State of Western Australia (Government Party)
and
Global Stone Group Inc (Grantee Party)
DETERMINATION
Tribunal: Deputy President The Hon EM Franklyn QC
Place: Perth
Date: 13 November 2002
Catchwords: Native Title – Future Act – Grant of Prospecting Licence - expedited procedure – objection application – observations on relevance of evidence of present or prior tenements on grant area – observations on contention despite directions there is no obligation on Objector to identify location of sites of relevant particular significance – evidence inadequate to lead to conclusion of likely interference or disturbance within meaning of s 237 – the act attracts the expedited procedure.
Legislation:Native Title Act 1993(Cth)
Aboriginal Heritage Act 1972
Transfer of Land Act 1893
Land Administration Act1997
Mining Act 1978
Cases:Smith and others v State of Western Australia and another (2001) FCA 19
Chienmora v Striker (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
REASONS FOR FUTURE ACT DETERMINATION WO01/581
Background
[1.1] On 28 September 2001, the State of Western Australia (“The State”) issued a notice under Section 29 of the Native Title Act 1993 (Cth) (“the Act”), that it proposed to grant to the Global Stone Group Inc (“the Grantee”) prospecting licence P08/482 comprising 99.97 square kilometres, the notice containing the statement that the State considers the grant to attract the expedited procedure. The proposed licence and the land the subject thereof is hereafter referred to as “the PLA”.
[1.2] On 2 November 2001, expedited procedure objection application WO01/581 was lodged with the Tribunal by Charlie Lapthorne and others on behalf of the Thudgari People (“the Objector”), the registered native title claimants in respect of the PLA (Land Claim WC97/95 registered from 18 November 1997), objecting to the inclusion in the notice of the said statement on the grounds that the proposed grant does not meet any of the criteria prescribed by section 237(a), (b) and (c) of the Act.
[1.3] I am satisfied that the issues raised by the objection application can be adequately determined on the material before the Tribunal and in the absence of the parties.
Directions 8 January 2002
[2.1] Directions made on 8 January 2002, (the compliance dates which were subsequently extended in respect of all parties) required the State to provide (inter alia) information as to the boundaries of the various tenures of land within or overlapping the boundaries of the PLA with details of the nature of each tenure, details of current and prior mining tenements granted over the PLA and details of registered sites thereon under the Aboriginal Heritage Act1972 (“the AHA”). As originally supplied the material showed the PLA to be virtually wholly within the De Grey-Mullewa Stock Route Reserve, with no statement as to the authority under which the Stock Route Reserve was created and no indication of current or prior mining tenements existing or having existed on the tenement. The information provided by it as to Aboriginal Heritage Sites was unsatisfactory in particulars to which I subsequently refer.
[2.2] After the Objector, pursuant to the said directions, had lodged its contentions and the material on which it relied, the Grantee’s representative sought an extension of time to submit its contentions. On 12 September 2002 I was appointed by the Tribunal to determine the objection application and set the application for extension down for a hearing on 17 September 2002. On 16 September the Grantee’s representative (Mr Thomas Christopher O’Shaughnessy) made written application for an extension of time on the grounds that the parties’ documents sent to the Grantee’s address at “Malaga” had never been received or were possibly lost and consequently there had been no opportunity to read them. On 17 September that application for extension was opposed by the Native Title Party. I heard submissions from all parties in the course of which the Grantee’s representative advised that he understood the Grantee to have received the documents but had not made them available to him. The extension of time sought was refused. Also in the course of the hearing the Grantee’s representative advised that as recently as last year he had held a mining tenement over the same area as the PLA. Consequently, I directed the State to provide, on or before 1 October 2002, particulars of the Stock Route Reserve, of current and prior mining tenements on or overlapping the PLA and clarification of the Aboriginal Heritage Site information, allowing leave to the Objector and the Grantee to provide contentions and a reply, from the Objector by 15 October 2002 and the Grantee by 29 October 2002. The State duly lodged material in response to those directions.
[2.3] On 14 October 2002 the Objector lodged contentions alleging that provision of details of current or prior mining tenements on or overlapping the PLA are irrelevant to the inquiry, placed the Objector in an invidious evidentiary position and can give rise to wrong inferences. The contentions further allege that the only way of knowing the true location of an Aboriginal site is by contacting the Aboriginal informants of that site.
[2.4] I do not accept the validity of these contentions. If the evidence discloses present or past prospecting or exploration activity on the PLA the fact of such activity would be known to the Objector as would the fact that it does, or has, interfered with the carrying on of their social or community activities, should that be the case. One would then expect evidence from the Objector of present or prior relevant interference resulting from such prospecting or exploration activities. That no complaint of such interference is made is relevant to the issue of the likelihood of relevant interference arising from the grant of the PLA. It is difficult to see how the provision of details of current or mining tenements on or overlapping the PLA can put the Objector in “an invidious evidentiary position” as claimed by it. There is no reason why those who engage in the social or community activities cannot provide evidence of the interference. As to the identification of relevant sites within the meaning of s 237(b), the “Aboriginal Informant” may or may not be a person recognised by the claim group to speak for and as knowing the sites of relevant significance. There are however such persons and it is open to the Objector to produce evidence from such a person. Mr Lapthorne is such a person. If a relevant significant site is said to be on the PLA, the issue of likely interference with it arises and, if an objection relevant thereto is to be sustained, requires identification of the significant site to enable that issue to be dealt with. If it is not known whether such a site exists then the issue does not arise.
The State’s Material
[3.1] The material provided by the State reveals the PLA to be situated on Pastoral Lease 3114/1014 and Reserve 9700 (gazetted as Public Reserve 10 November 1905 for the purposes of the De Grey – Mullewa Stock Route under s 39 of the 1898 Land Act). The Reserve has never been the subject of a vesting order. A document “Crown Land Title” issued under the Transfer of Land Act1893 and the Land Administration Act1997 shows its status as “Reserve without Management Order” and it to have been registered on 10 December 2001. The “Quick Appraisal” sheet provided by the State shows it to occupy 99.9% of the PLA with the pastoral lease occupying 0.1% thereof.
[3.2] The State’s material reveals there to be no Aboriginal community situate on or in the vicinity of the PLA.
[3.3] The information as to Aboriginal sites registered under the Aboriginal Heritage Act 1972 (“the AHA”) (all, it seems, provided to the State by the Department of Indigenous Affairs (“the DIA”) formerly the Aboriginal Affairs Department) is somewhat confusing despite the Tribunal having sought clarification. On a sheet entitled “Register of Aboriginal Sites” and endorsed “Theme type: Sites Within a Mining Tenure”, it lists two sites. One is registered on the Interim Register with the site name “Telfer River”, identification number 6801 with “closed access”, “no gender restrictions”, as being “unreliable” and with site types “mythological” and “engraving”. The second site is registered on the Interim Register with the site name “Mundong Well”, identification number 11253 with “open access”, “no gender restrictions”, as “reliable” with site type “engraving”. That same sheet also provides coordinates which, it says, may not necessarily represent the true centre of the sites.
[3.4] Together with that sheet are two other sheets. The first entitled, “Aboriginal Sites Register Sites Search Overview Map”, is of no assistance. It shows the boundaries of the State of Western Australia divided into six areas with one major town marked within each area. Inter alia it cautions that sites may exist which are not entered on the register system or are on the register but no longer exist, and claims for the State copyright of specified information. It contains a “Legend” indicating different markings for “Selection Area”, “Site Search Map” and “Selected Sites”, which, one assumes, apply to the third sheet which is entitled “Site Search Map”. The Site Search Map has marked on it the boundaries of the PLA in heavy black print and three areas, one circular in shape located approximately 5 kilometres to the southeast of the PLA, another, also circular in shape, outside but touching the southeast corner of the PLA boundary (each of which have a diameter of approximately 1 kilometre), and the third, being a square area, approximately 2 kilometres x 2 kilometres, which overlaps the second mentioned circular area and the approximate north-south half of the PLA. The boundaries of those three areas are marked by broken lines and the areas themselves are hatched. Neither of the markings of the boundaries or the hatchings coincide with the marking and hatching shown under the heading “Legend” on the Site Survey Overview Map. There is no indication on the Site Search Map which of the three areas are the two sites referred to in the sheet headed “Register of Aboriginal Sites”. Nor is there any explanation why what appears to be three sites are marked on the Site Search Map, whilst only two are shown on the register.
[3.5] The tengraph map dated 8 April 2002 provided by the State showing the location of the PLA also shows the location of the two registered sites, one numbered 6808 (the site identification number for that registered as “Telfer River”) marked as “Mundong Well” abutting the eastern boundary of the proposed tenement near its southeast corner and the other numbered 11253, (the site identification number for that registered as “Mundong Well”) unnamed, located nearly 3 kilometres to the south, each in approximately the same position as the two circular areas shown on the Site Search Map. The State was requested by the Tribunal to provide a full and clear explanation of the material so provided in respect of registered sites and the third apparent site marked on the Site Search Map and, by letter dated 27 September 2002, advised that the DIA has replied as follows:
“The Register of Aboriginal Sites printout provides 1 point co-ordinates. There are varying reasons on how a site is mapped in terms of the information received by the heritage reporting team at the DIA. If a site is closed it is “dithered” so as not to disclose the location of the site. The only way to know the true location of a site is by contacting the aboriginal informants of that site and requesting permission to view the site file. Open sites are shown on the DIA maps as an hatched area and the point co-ordinates would normally represent the centre of the site. A lot depends on the initial information provided by consultants/recorders to the DIA officers and whether that officer is comfortable with the reliability of the person/s providing that information.”
I find that reply quite unhelpful and to not even attempt to clarify the information originally provided.
[3.6] The State’s information also reveals that the PLA was formerly the subject of prospecting licence 08/459 in the name of Thomas Christopher O’Shaughnessy, granted 23 March 1997 and expiring on 20 March 2001 and that approximately $20,000 was expended on exploration work there. It also reveals the PLA to have been surrounded by exploration licence 08/918 over the period May 1997 to November 1998 and to have been partially overlapped by mining lease 08/92 over the period 29 June 1989 to 8 February 1991 but, in that case, with “no work reported”.
[3.7] The State contends that the grant of the PLA will not give rise to any of the issues raised by s 237(a), (b) and (c) of the Act. It refers to the provisions of ss 24 and 26 of the Mining Act as it applies to the Reserve and to the statutory conditions provided by s46 of that Act which will apply if the tenement is granted. It also refers to the provisions of s 25 of that Act as they apply to pastoral lease land, to the provisions of ss 5, 17 and 18 of the AHA and to the standard conditions which will apply to the grant as set out in the schedule attached to its contentions.
The Objector’s Material
[4.1] The Objector’s contentions in respect of the predictive quality of s 237 of the Act include the following proposition:
“10.As “likely” is to be interpreted as involving a real and not remote chance or possibility, the objector is not required to give the exact location of the site or areas of significance, but merely sufficient evidence to establish that there is a real risk that it will be interfered with. To require further information would be to insist on a burden of proof that goes beyond what is required by law”.
[4.2] I do not accept the validity of the Objector’s said contention. On 8 January 2002 directions were made requiring the Native Title Party to provide on or before 30 April 2002 a statement of contentions to include, “a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area”. That requirement was not amended and no application for a variation was made. Section 237(b) is concerned with the likelihood of interference with an area or site of particular significance in accordance with the traditions of the Native Title Party. That requires a predictive assessment as to the likelihood of a future act interfering with such an area or site, “likely” being interpreted to mean “a real and not remote chance or possibility of interference, regardless of whether it is more or less than 50%” (Smith and others v State of Western Australia and another (2001) FCA 19 at para 23). The making of a predictive assessment requires the Tribunal to take into account all matters revealed by the evidence and material before it relevant to the question whether the grant of the PLA is likely to result in interference of the nature referred to in s 237(b). That requires evidence and material which establishes the existence of an area or site of relevant particular significance, the nature of that significance and the location of the site. The “particular” significance must be one of more than ordinary significance (Chienmora v Striker (1996) 142 ALR 21 at 34-35) in accordance with their traditions to the persons who are the holders of native title in relation to the land or waters concerned and there must be evidence to that effect. The nature and location of the site are each relevant to the issue of likelihood of interference. The nature and/or location might be such that the activities pursuant to the rights conferred by a mining tenement will not be likely to interfere with it. Evidence of the Grantee’s intentions in respect of its operations may also be relevant to the issue of likelihood as may evidence of the current and/or prior use of the proposed tenement area, including mining operations on or in the vicinity of the site.
[4.3] When a site of relevant particular significance is claimed to be on a proposed tenement it is a reasonable and, in my opinion, an inevitable inference that the holders of native title are concerned to ensure that it is not interfered with by the proposed future act. To that end one would expect them to identify its location so that it is not at risk. Were there not a statement in the s 29 notice that the State considers the grant to attract the expedited procedure it seems inevitable that the site location would be made known to the State and the Grantee in the course of the good faith negotiations and, in the absence of a s 31 agreement, in the determination proceedings under s 35 of the Act. To refuse to advise the location of a site said to be of relevant particular significance indicates that the Objector is prepared to accept the risk of dismissal of the objection application pursuant to s 148(b), and, if there be no dismissal, the risk of interference with or even destruction of the site if the grant is found to attract the expedited procedure. These circumstances give rise to the inference that the claimed site is not, in truth, a site of relevant particular significance, or that, if it is, its location will be made known by the Objector to the State and the Grantee upon a determination that such procedure is attracted, and the protection afforded by the AHA relied upon.
[4.4] If the site is in truth one of relevant particular importance, then it is clear that the deliberate non-disclosure is a strategy engaged in, in defiance of the directions, with the intention of withholding evidence which would enable a proper predictive assessment of likelihood of interference to be undertaken, directed to preserving the right to negotiate, whether or not the area or site is likely to be interfered within the meaning of s 237(b) of the Act. In such case, in making its predictive assessment the Tribunal is entitled, in my opinion, to take into account the provisions of the AHA and to conclude that, it being a site of relevant particular significance, the Native Title Party would not permit it be interfered with in the event of the expedited procedure being attracted and in such event would notify the Grantee of its location, thereby bringing into operation the provisions of ss 5, 15, 10, 16 and 17 of the AHA. In other words, if the evidence reveals there to be a site of relevant particular significance on the PLA, the location of which is deliberately withheld, a predictive assessment would necessarily involve the conclusion that the Objector would not permit that site to be put at risk by the grant of the tenement and would disclose its whereabouts. It would thereby remove the element of risk of interference before prospecting activities commenced.
[4.5] The above observations assume, of course, that the evidence will disclose the presence of such a site on or in the vicinity of the ELA tenements. The Objector’s contentions allege the PLA to be in an area that is “site rich”, that over half of its area is covered by a registered site, that there are five registered sites within or in its vicinity and numerous unregistered sites within and around it, “the locations of which are known only to the Native Title Party”. Those contentions, in the main, are not supported by the evidence.
Objector’s evidence
[5.1] The Objector relies on the evidence of Charlie Lapthorne, a Thudgari elder of Port Hedland, contained in an affidavit sworn by him on 22 August 2002, the evidence of Cedric Stileman Davies, an employee of the Yamatji Land and Sea Council, contained in an affidavit sworn by him on 22 August 2002 and by further affidavit of Charlie Lapthorne lodged with the Tribunal as a confidential document (the confidential affidavit) also sworn on that date. I set out hereunder the affidavit of Charlie Lapthorne, for which confidentiality is not claimed, and that of Cedric Stileman Davies.
[5.2] Affidavit of Charlie Lapthorne
I, Charlie Lapthorne of 37 Captains Way, South Hedland, in the state of Western Australia, Thudgari elder, being duly sworn make oath and say as follows:
1.I am an elder and an applicant of the Thudgari claim. I am recognised under the traditional Thudgari laws as speaking for and knowing the sites and traditional stories of the tenement area and because of this I have been requested by the Thudgari people to make this statement about the sites in and around the tenement area.
2.I have seen a map, which shows the location of tenement P08/482 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement, which is on Glen Florrie Station.
3.I was born on Maroonah Station, near the homestead in the gully there in 1942. Maroonah station is the station just to the south of the proposed tenement. I grew up on Maroonah Station and then later I was taken to the mission at Carnarvon in bout 1948. From 1953 my father was working at Glen Florrie as manager there and I used to go back to Glen Florrie each holidays.
4.In 1957 I went back to Glen Florrie Station because my father was running the station at the time. Up until the 1950s there used to be a lot of Aboriginal people working and living on the stations. I worked on the station for about 3 years until about 1960 with my father. My father and uncle, old Jack Butler, taught me all about that country and showed me the places and sites there. They taught me the names of the different places, showed me where Thudgari country went up to and showed me the different bush foods there and how to get these.
5.My uncle and father told me where I could go and where I should stay away. There is a place at the Barlee Ranges, not so far from the tenement area, that we were told to stay away from as kids, this was because there were wild people still living there. Jack Butler had upset them so it was dangerous for us to go there. They were through there right up until the sixties. One time in the fifties when we went there, we found some fresh humpies that were only about one month old. I was speaking to a bloke up at Maroonah who said he was with a geologist mob there in the sixties and they saw about 7 old Thudgaris there. They thought they were emus from a distance, but when they got closer they saw that they were human footprints and they jumped straight in their motor car and got out of there.
6.When I was at Glen Florrie, Thudgari people would camp all through the tenement area. The old stock route follows the Telfer River and runs right through the tenement area, Mundong Well and Minga Spring. The old people used to travel along the Telfer River and camp all along there, they left artefacts, like grinding stones, tools and dishes, wherever they camped, including in the tenement area. They would move from Minnie Springs, through Mundong Well, Minga Spring and the tenement area and then down to Mountain track. These areas are important to us because that is where our people stopped and left their gear. It is part of our history and out culture.
7.Mundong Well is an old government well that was a big camping area for the Maroonah and Towera Mobs, when they were travelling through, people like old Frank Lyndon, Dido, Dominic, Sailor and their families. It was a big meeting place. It is near the spot marked as No. 40 Well on the map annexed and marked as “Annexure 1”. When the old people came through the tenement area they would camp all along the Telfer River and through the tenement area. Mundong Well and the area around this includes the southern portion of the tenement area and is very important to us Thudgari people, because that is where our old people camped and it has many memories for us. I can see from the map that there is a registered Aboriginal site called “Mundong Well” marked on the map right on the south-eastern side of the tenement area. I am informed and believe to be true that this is an engraving site. It does not appear from the maps that the Mundong Well camping area that I was talking about has been registered as a site with the Department of Indigenous Affairs. There are lots of other sites, where people camped, in the tenement area that are not registered as sites. In the granite there you will find patches where the old people would grind seeds. There are engravings all through there.
8.There is a big corroborree ground about 15 kilometres south west of the tenement area in the clay pan there. People would come from all over for corroborrees there. There would be Thudgaris, Purdunas, Thalanjyis, Baiyungus and Ingarrdas there. When there were corroborees there, there would be the biggest mobs of people camped up in and around Mundong Well, Minga Spring and the tenement area, because lots of them would come down along the Telfer River.
SWORN by the said Deponent ) Charlie Lapthorne
At South Hedland in the said State )
of Western Australia this 22nd day )
of August 2002 )
[5.3] Affidavit of Cedric Stileman Davies
I, Cedric Stileman Davies of Perth in the state of Western Australia, future acts officer, being duly sworn make oath and say as follows:
1.I am an employee of the Yamatji Land and Sea Council and am engaged as future acts officer.
2.In the course of my work I deal with grantee parties and assist with the resolution of future act matters, including expedited procedure matters. I have had the initial conduct of this matter.
3.I spoke to Mr John Chegwidden, the representative of the grantee party, on 12 February 2002, who advised that he did not wish or intend to undertake an Aboriginal heritage survey over the proposed tenement area P08/482.
4.From my work on this matter I am aware that the letter, marked and attached as Annexure “A” to this was affidavit, was sent to Mr John Chegwidden on behalf of the grantee party on 21 August 2002. This letter requests that the grantee party advise us as a matter of urgency if it has changed its position in relation to the conduct of an Aboriginal heritage survey of the proposed tenement area.
5.As at 4:00pm 22 August 2002, I have not been made aware of any indication from the grantee party that it is prepared to undertake an Aboriginal heritage survey of the proposed tenement.
SWORN by the said Deponent ) Cedric Stileman Davies
At Perthin the said )
State this 22nd day )
of August 2002 )
[5.4] Paragraph 1 of Mr Lapthorne’s affidavit makes clear that he is recognised as having knowledge of the location of Aboriginal sites on the PLA. In paragraph 2 he identifies only the location of the PLA on the map annexed to the affidavit, which map, however, is not marked “A” as testified to in his affidavit. He does not depose in any way to the other markings on that map. In paragraphs 3-5 inclusive he outlines his connection with Glen Florrie Station but is not specific as to the PLA. In paragraph 6 he deposes to the Thudgari people camping all through the tenement area when he was at “Glen Florrie”. Paragraph 4 makes clear that this is a reference back to 1960 and earlier. His references in paragraph 6 to the old stock route following the Telfer River through the Tenement area, Mundong Well and Minga Spring and the old people travelling along the Telfer River and camping implies that they travelled along the Stock route. The name “Mundong Well” is printed on the black and white photocopy map annexed to his affidavit and could refer to either a marked square area to the east of the PLA having its western boundary in common with the eastern boundary of the PLA or to a circular area apparently touching the south-eastern corner of the PLA.. The markings however are not clear due to the poor quality of the photocopy. Neither the name “Minga Spring” nor “Mountain track” appear on that map. The name “Minnie Spring” appears approximately 12 kilometres to the northeast of the PLA. The Telfer River is shown as running to the PLA (but to what extent it runs through it is obscured) and on to and beyond the marking of “Minnie Spring”. The name “Telfer River” is printed at two places on the map, but does not appear in either case as marking the location of an Aboriginal site and would seem to be directed to identifying the course of the river.
[5.5] The map dated 8 April 2002 produced by the State shows the location of registered site 6808, said on the Register of Aboriginal Sites to be named “Telfer River” but marked on that map, apparently incorrectly, as “Mundong Well”, to be situate on the Stock Route Reserve adjacent to the PLA, and that of registered site 11253, which is unnamed on that map but named “Mundong Well” on the Aboriginal Sites Register, to be approximately 3 kilometres to the south of the PLA to the east of the Stock Route Reserve. The maps produced by the State on 24 September 2002 show “Minga Spring” to be approximately 750 metres to the northeast of the PLA, situated on the Stock Route. None of those maps show the location of “Mountain track” referred to by Mr Lapthorne and none contain the marking “Telfer River”. They each however show the course of the Telfer River as running minimally across the northwest corner of the PLA within the Stock Route Reserve.
[5.6] Returning to Mr Lapthorne’s affidavit, the evidence in paragraph 6 refers to old people, at the latest in 1960, travelling and camping “all along the Telfer River moving from Minnie Springs, through Mundong Well, Minga Spring and the tenement area and on down to Mountain track leaving behind, wherever they can, things like grinding stones, tools and dishes”. The importance of “these areas” is said to be that the old people stopped and left their gear there. Mr Lapthorne does not claim “mythological significance” or the presence of “engravings” as the significance of the two registered sites shown on the register despite those being the registered “site types”. Having regard to the extent of the area said to have been travelled by the old people, the fact that objects in common use in travelling and camping were left behind wherever they camped can be seen as to give those places some significance but, in my opinion, the evidence is insufficient to establish them as areas of relevant particular significance. That conclusion is supported by the fact that only two sites, a considerable distance apart, are registered, only one of which is said to be reliable, and neither of which has the significance claimed by Mr Lapthorne. It is a reasonable inference that, generally, a site of mythological significance would be likely to be of relevant particular significance although evidence of the particular mythological significance would be required.
[5.7] In paragraph 7 Mr Lapthorne refers to a map “annexed and marked Annexure 1” by which he identifies the “old Government Well” said to be “Mundong Well”. There is only one map annexed to his affidavit and it is not marked either “A” or “Annexure 1”. Nor does the marking “No. 40 Well” appear thereon. It is not known to what map he refers. It is not in evidence. However, the maps produced by the State dated 24 September 2002 show “No. 40 Well” to be a little less than ½ kilometre slightly to the southeast of the southern boundary of the PLA and on the Stock Route and, also on the Stock Route, a well with tank named “Mundong Well (PD)” some 500 metres to the southwest of the PLA, westward of and close to No. 40 Well. They also show “Mundong Well” marked across the outline of the PLA. Mr Lapthorne speaks of a big camping area for the Maroonah and Towera Mobs that “was” at “Mundong Well”, the old Government Well. He does not identify either of those “mobs” or the persons he there names as members of the native title group. He refers to that camping area as being near No.40 Well which suggests he is referring to “Mundong Well (PD)”. He distinguishes this “Mundong Well” site from the registered site Mundong Well “marked on the map right on the south-eastern side of the tenement area”, which, he states, he is “informed and believes” to be an engraving site. He there appears to be referring to the circular area, possibly, marked “Mundong Well,” shown on the map annexed to his affidavit touching the south-eastern corner of the PLA. It would appear from the State’s map of 8 April 2002 that that site has the registered number 6808, and is named “Telfer River” on the Register of Aboriginal Sites but was incorrectly shown on that State map as “Mundong Well”. The coordinates for the site “Mundong Well” provided by the Register of Aboriginal Sites would seem to locate it south of the PLA. Mr Lapthorne asserts there to be lots of other unregistered sites where people camped in the tenement area. The evidence does not give rise to a conclusion that camping sites are sites of relevant particular significance in the sense of “out of the ordinary” significance, or that there is any site of relevant particular significance on the PLA.
[5.8] Paragraph 8 of Mr Lapthorne’s affidavit is concerned with a site well outside the tenement area and, so far as the evidence discloses, one unlikely to be relevantly interfered with, whether or not it be of relevant particular significance. His evidence makes clear that it is a place which used to be used for corroborrees attended by the Thudgari People and other Aboriginal groups, resulting in people camping over a very large area including the tenement site. There is no evidence to suggest that corroborees continue to be or have recently been held there and nothing suggests that the grant of the PLA is likely in any way to interfere with that site.
[5.9] Mr Lapthorne’s said affidavit contains no evidence of social or community activities of the native title holders carried on upon the PLA likely to be directly interfered with by the grant of the PLA, and there is no other evidence to lead to such a conclusion. Nor does the evidence give rise to a finding of the existence on the PLA (or in such close location thereto as to be likely to be interfered with by the grant) of any site of relevant particular significance within the meaning of s 237(b) of the Act.
[5.10] I find Mr Davies’ evidence of no assistance in this matter. It would seem to be concerned with issues of good faith negotiations, issues not relevant to the present inquiry. There is no obligation on a proposed grantee to engage in an Aboriginal heritage survey of a proposed tenement area. There are many reasons why a proposed grantee may not be prepared to enter into a heritage agreement as is referred to in the letter of 21 August 2002 annexed to Mr Davies’ affidavit. A copy of the agreement referred to in that letter is not provided. The Tribunal is, however, familiar with a form of heritage agreement advocated by the Objector’s representative. Whilst it may be acceptable to some proposed grantees, it is not necessarily acceptable to all. Some of the issues known to arise in respect of its terms are the timing of the survey, the period or periods over which it will or may take place, the number of the Objector’s representatives, Aboriginal and others, including professional consultants, who should take part, the fees to be paid for their attendance, the necessity or otherwise for the participation of all such persons and the costs of travel, accommodation and transport to be provided by the Grantee. I am not prepared to draw the inference on the basis of Mr Davies’ affidavit that the grantee in this matter is not prepared to take all reasonable means to avoid and protect Aboriginal sites and, in particular, sites of relevant particular significance. The issue raised by s 237(b) is whether the grant is likely to interfere with areas or sites of particular significance in accordance with their traditions to the holders of the native title. For that issue to arise there must be credible evidence of the existence on the area of the proposed grant or in its immediate vicinity of a relevant site that may be interfered with if the grant is made. There are statutory obligations which apply if the Grantee does become aware of the location of any such site and penalties for interference therewith.
The confidential affidavit of Charlie Lapthorne
[6.1] I do not set out the content of this affidavit in full. The confidentiality order was in the following terms:
“The said document is available for inspection by the other parties, their legal advisors or, if no legal advisor, a person authorised by the relevant party to inspect it for and on behalf of the authorising party, such inspection and the information obtained thereby to be used only for the purposes of these proceedings, the content of the document to be otherwise treated as confidential by the parties, their legal advisors and any such authorised person at all times. Such contents may however be used and referred to by the Tribunal to the extent it considers necessary or appropriate for the purposes of its published reasons for determination.”
[6.2] In it Mr Lapthorne speaks of “Minga Spring”, said to be “within or in the immediate vicinity of the north-eastern portion of the tenement area”, as being a “thalu” site, very important to the Thudgari People, with which is associated a dreaming story about which he cannot speak, which site must not be disturbed. Mr Lapthorne is concerned that the site may be disturbed if the PLA is granted. He does not say in what way these disturbances may occur. He also asserts that the Aboriginal site marked “Telfer River” on “the map” is called a mythological and engraving site by the DIA, that it covers half the tenement area and “it looks like it is the Minga Spring Site that I was talking about”. He does not identify the map to which he refers.
[6.3] The only maps in evidence which refer to “Minga Spring” are those provided by the State which show it to be located on the Stock Route Reserve some 750 metres from the northeast corner of the PLA. There is no evidence of a site marked “Telfer River” on any map in evidence. There is no map in evidence which shows a site covering half of the tenement area, save the Aboriginal Site Search Map which has the unexplained and unidentified square hatching on it which is not said by any party to be an Aboriginal site and is not registered as such. The map of 8 April 2002 produced by the State, to which no objection has been taken, shows the two sites plotted from the information on the Aboriginal Sites Register to both be outside the tenement area and both on the Stock Route Reserve. I find the evidence to be insufficient to lead to a conclusion that the “Minga Spring” site of which the deponent speaks is on or in the immediate vicinity of the PLA.
Conclusion
[7.1] I find the grant of the PLA is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the lands and waters concerned and is not likely to interfere with areas or sites of particular significance in accordance with their traditions to the persons who are the holders of native title in relation to such land and waters. Applying the methodology and law set out in the judgments in Dann v Western Australia (1997) 74 FCR 391, I also find that the grant is not likely to involve major disturbance in any of the senses provided for in s 237(c). In coming to these conclusions I take into account that the PLA was the subject of prospecting licence 08/459 from March 1997 to March 2001, $20,000 having been expended on exploration works and that, from May 1997 to November 1991, it was partially overlapped by a mining lease M08/29. There is no evidence to suggest any interference or major disturbance within the meaning of s 237(a), (b) and (c) and arising out of the operations of those tenements even though prospecting licence 08/459 was in force until only 6 months prior to the s 29 notice. It is also of relevance that the PLA and the camping areas of which Mr Lapthorne speaks are on the Stock Route Reserve created in 1905 and registered under the Transfer of Land Act 1893 as recently as 10 December 2001, leading to an inference that it is still in use. There is no suggestion of any interference or disturbance arising out of its use or the operations of the Pastoral Lease holder. The evidence is insufficient to lead to a finding that there is any site of relevant particular significance on the PLA or that any relevant site in its near vicinity is likely to be interfered with by the grant of the PLA.
Determination
It is the determination of the Tribunal that the grant of prospecting licence P08/482 is an act which attracts the expedited procedure.
The Hon EM Franklyn QC
Deputy President
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