Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Karl Christian Pirkopf

[2012] NNTTA 50

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/Karl Christian Pirkopf, [2012] NNTTA 50 (9 May 2012)

Application No:               WO11/989

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Cyril Barnes and Others on behalf of Central East Goldfields People (WC99/30) (native title party)

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The State of Western Australia (Government party)

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Karl Christian Pirkopf (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  9 May 2012

Catchwords:  Native title – future act – proposed grant of prospecting licence – expedited procedure objection application– whether act is likely to interfere with sites of particular significance – expedited procedure not attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237

Mining Act 1978 (WA), s 48

Mining Regulations 1981 (WA), s 14
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15

Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65

Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977

Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027

Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28, [2008] FCAFC 23, [2008] ALMD 5175

Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18

Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19

Walley and Others v Western Australia and Another (2002) 169 FLR 437

Western Desert Lands Aboriginal Corporation v Western Australia and Another [2009] NNTTA 49

WF(deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA17

Solicitor for the

native title party:             Mr Dante Mavec, Goldfields Land and Sea Council

Solicitor for the

Government party:         Ms Alicia Warren, State Solicitor’s Office

Grantee Party:                Self represented

REASONS FOR DETERMINATION

1. On 20 April 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) of its intention to grant prospecting licence P25/2206 (‘the proposed tenement’) to Karl Christian Pirkopf (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed tenement comprises an area of 147.6 hectares located 52 kilometres east of Kalgoorlie in the City of Kalgoorlie-Boulder and is 100 per cent within the Central East Goldfields People native title claim (WC99/30 – registered from 4 October 1999).  No other native title claims overlap the proposed tenement.

3. On 17 August 2011, Cyril Barnes and Others on behalf of the Central East Goldfields People registered native title claimants (‘the native title party’) made an expedited procedure objection application (‘the application’) to the National Native Title Tribunal (‘the Tribunal’) in respect of the proposed tenement.

4. On 5 September 2011, Deputy President Sumner was appointed Member for the purposes of the conduct of an inquiry into the application. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date (22 August 2011) for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

5. At an adjourned preliminary conference on 18 October 2011, the grantee party advised parties and the Tribunal that he wished to proceed to inquiry.  

6. On 19 December 2011 the native title party lodged a Statement of Contentions and the affidavit of Daniel Steven Sinclair.  The Government party lodged its contentions and evidence by 23 December 2011.  On 2 February 2012, the grantee party advised the Tribunal that they wished to rely on the Government party’s submissions.  On 1 March 2012, with leave from the Tribunal, the Government party lodged Contentions in Reply to the native title party’s contentions and on 16 March 2012, with further leave from the Tribunal, the native title party lodged their Contentions in Reply to the Government party’s submissions.

7. At the Listing Hearing of 2 February 2012 parties agreed that the inquiry could be heard ‘on the papers’, that is, without holding a further hearing.

8. On 6 February 2012, I was appointed as the Member for the purposes of conducting the inquiry into the application.

9. I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).

Government Party Evidence in Relation to the Proposed Act

1. The Government Party filed its contentions and evidence on 11 December 2011. The Government party establishes the underlying land tenure of the proposed tenement to be entirely overlapped by Hampton Hill Pastoral Lease 3114/1214 with no roads or tracks located within the proposed tenement area.  Mapping provided by the Tribunal’s geospatial unit locates the proposed tenement along the north western shoreline of Lake Yindarlgooda.

2. There are no Aboriginal communities within the vicinity of the proposed tenement area. 

3. Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals one Heritage Place under the Aboriginal Heritage Act 1972 (WA) (‘the AHA’) overlapping the entire area of the proposed tenement, being Lake Yindarlgooda, Mammu Tjukurrpa (Site ID 30602, mythological, open access, no restrictions).

4. According to the Government party Quick Appraisal documentation, six previously granted tenements overlap the proposed tenement: one mining lease (M25/102) granted in 1992 and surrendered in 1994 overlapping 89 per cent; three exploration licences (E25/72, E25/120 and E25/258) granted and surrendered between 1991 and 2005 overlapping between 11 and 100 per cent; and three prospecting licences (P25/1324, P25/1325 and P25/1326) granted and surrendered in 1994 overlapping between 12 and 48.8 percent. The proposed licence is also entirely overlapped by one pending exploration licence (E25/467).

5. The Government party submissions include a Draft Tenement Endorsement and Conditions Extract which indicates the grant of the proposed tenement be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [11]-[12]) and two further conditions requiring the pastoral lessee to be notified of the grant of the licence and of certain exploration activities (conditions 5-6).

6. The following draft Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed tenement if breached) are noted:

   ‘1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

   2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.’

7. The contentions of the Government party (at 5(d)), state that:

   ‘the grantee party has signed a statutory declaration declaring that he has executed and sent a copy of the Regional Standard Heritage Agreement (“RSHA”) to the objectors to execute should they accept its terms and conditions. A copy of the statutory declaration is annexed and marked attachment “B”.’

8. Section 48 of the Mining Act sets out what a holder of a prospecting licence is authorised to do.

   ‘A prospecting licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject —

   (a)     to enter and re‑enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of prospecting for minerals in, on or under the land;

   (b)     to prospect, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;

   (c)      to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;

   (d)     to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water there from and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.’

9. The prescribed limit for the purposes of s 48(c) is 500 tonnes: Regulation 14 of the Mining Regulations 1981 (WA).

10. The Government Party filed contentions in reply on 1 March 2012

Native title party contentions and evidence

1. In support of its statement of contentions, the native title party has provided the affidavit of Daniel Steven Sinclair (‘DSS Affidavit’), sworn 6 December 2011 as follows:

   ‘I, Daniel Steven Sinclair, of 38 Killington Crescent, Boulder, in the State of Western Australia, being duly sworn, make oath and say as follows:

   1.My name is Daniel Steven Sinclair. I am 42 years old.

   2.I am a member of the Central East Goldfields native title claim and an applicant for the claim. I am a wati, an initiated man.

   3.The country covered by the Central East Goldfields native title claim is my father’s country. His name was Don Sinclair, and he is an apical ancestor for the Central East Goldfields claim. He was from Karonie, which is on the transcontinental railway line just south of Lake Yindarlgooda. My father also worked at Hampton Hill Station, which surrounds parts of Lake Yindarlgooda. These places are in the Central East Goldfields claim area.

   4.Annexed to this affidavit and marked “DS1” is an affidavit containing my evidence in relation to Tribunal objection WO11/358. The evidence in Annexure DS1 is all true and applies to tenement P25/2206 as well. The Mammu Tjukurrpa is all over Lake Yindarlgooda – on the lake, on the sand dunes, on the islands – they’re all connected. They’re all part of the Tjukurrpa.

   5.When we go out on that country the mammu is there watching – you can’t see him or hear him but you can feel his presence. It’s a spiritual feeling that lets you know he is there, you can sometimes tell by the wind and the rain. The mammu knows who the right people for that country are and we can announce ourselves to the mammu so he knows what is going on in his area.

   6.On 5 December 2011 a lawyer from Goldfields Land & Sea Council showed me a map of tenement P25/2206. That map is annexed to this affidavit and marked “DS2”.

   7.From the map I can see that this tenement is right on top of the lake. The lake and these islands are all connected and can’t be disturbed. There might be some areas away from the lake that are acceptable for disturbance, but I or the other Central East Goldfields people who know that country would need to go out and see it in person to be sure which areas are alright. I can’t go out to see the tenement myself because I am on remand. I know that prospectors don’t always do something as major as drilling, but Karl Pirkopf needs to come and speak to us about what he wants to do on the tenement so we can tell him what areas are okay. We won’t let him go on that lake or dig it up, because that would mess with the Tjukurrpa.

2. The affidavit of Mr Sinclair includes annexure DS1, being an additional affidavit of Daniel Steven Sinclair, sworn 24 August 2011, and states as follows:

   I Daniel Steven Sinclair, or 38 Killington Crescent, Boulder, in the State of Western Australia, being duly sworn, make oath and say as follows:

   1.My name is Daniel Steven Sinclair. I am 42 years old.

   2.I am a member of the Central East Goldfields native title claim and an applicant for the claim. I am a wati, an initiated man.

   3.The country covered by the Central East Goldfields native title claim is my father’s country. He name was Don Sinclair, and he is an apical ancestor for the Central East Goldfields claim. He was from Karonie, which is on the transcontinental railway line just south of Lake Yindarlgooda. My father also worked at Hampton Hill Station, which surrounds parts of Lake Yindarlgooda. These places are in the Central East Goldfields claim area.

   4.I also have rights and responsibilities to country in the Spinifex lands through tjamu (grandfather). His name was Jingi or Roy Sinclair and he called me Tjilpi Tjilpi, which means old man. Tjilpi Tjilpi is my Aboriginal name. My skin group is panaka.

   5.I went through the Law (initiation) first time in Tjuntjunjara in 1988 or 1989. Second time I went through at Kiwirrkura and Tjuntjunjara. When I went through the Law I was taught the stories by the wati tjilpi (old initiated men). They showed me the sacred things, the minma (dance), the Tjukurrpa (Dreaming stories) – the culture.

   6.Tjukurrpa is our history, connection stories, our Aboriginal Law. The Law is minmil (sacred). The Law was given to us by our ancestors, the old people, and in the Tjukurrpa. We have to give to Law to our kids. Tjukurrpa happened before white men came to this land. Tjukurrpa (ancestors from the Dreaming) always been here, they roamed this area, they made all the lakes and the hills. The stories of the Tjukurrpa come from the animals and they made things. When we learn about Tjukurrpa the old people teach us what we have to do, where in the country the stories start and stop.

   7.It is my job to look after this country, including Lake Yindarlgooda. Other families in my claim group, like the Graham and Barnes families, ask me to talk for country and to look after country because I am wati. I also have to look after the Tjukurrpa places for other wati from the desert, like Dinny Smith and Laurence Pennington.

   8.If a Tjukurrpa place gets damaged our culture and history is disturbed. If the wrong people let a Tjukurrpa place get disturbed it bounces back on them and they get sick. We wati (initiated men), we have to keep the Tjukurrpa going. It is our job to keep the Tjukurrpa protected. We have to look after it so we can pass it on.

   9.I know that the mining companies have done drilling on Lake Yindarlgooda before. That was all wrong. It should never have happened. White people have to follow our Law too. They need to leave that lake alone.

   10.If I say drilling can go ahead on this lake I will get into trouble. It will be ngulu (dangerous). If one community hears that this place is getting disturbed and that I said yes to it then they will hear it all along the desert communities and they’ll know what’s going on and they might punish me. It is not a money issue, not a white man’s way, it is the Law we got to follow. We’ve got to say no.

   Lake Yindarlgooda

   11.I’ve been to the area around the Lake Yindarlgooda many times with my family for hunting, camping and to learn and teach bush skills with my family. We have to be careful though because that area is mammu country. I can sense that the mammu is around, so we have to light a big fire to warn him we’re around and show respect to him.

   12.Danny Graham, Dinny Smith and I went out to the proposed tenement E28/2116 on the lake with an anthropologist Bill Kruse and we told him the story. Dinny Smith and I sang some of the Mammu Tjukurrpa song for him.

   13.Lake Yindarlgooda is Mammu Tjukurrpa (Devil/Ghost Dreaming). The mammu came from Coolgardie. There are standing stones there and they are the mammu. Some mammu ate up Mt Monger people and ate up the old Spinifex mob too. The Wati Kutjarra [Two Men], Papa [Dingo] and other Dreamtime people, they stayed away from the mammu because he tried to eat them.

   14.The mammu lived at Mt Monger but on their way to Mt Monger from Coolgardie, they travelled and hunted on Lake Yindarlgooda. When he’s travelling he’s looking for food, he eats wanga (insects) and people too. He hangs around the lake, it’s ngulu (dangerous) and when we come here we got to burn smoke to let the mammu know we are here. The tjilpi (old men) taught me it’s the whole lake that’s ngulu. Wati mammu he travelled on from Lake Yindarlgooda up through near Menzies.

   15.Mammu Tjukurrpa and all Tjukurrpa show us the country. Wati  and  minma mammu (man and woman devil/ghost), while they travel around, they bump into other Dreamtime people like the Wati Kutjarra and the Seven Sisters and also Aboriginal desert people. Sometimes when mammu camp on their ngurra (their country), if they see buru (smoke) from people they kill and eat them. Mammu sometimes trick people – they pretend to be a person and they cry like they are sad so people come up, and then they catch them and eat them.

   16.The Tjukurrpa story for Lake Yindarlgooda is an open one, for men, for boys, for ladies. Anangu [central desert Aboriginal people] and Wangkayi [goldfields Aboriginal people] can all see the dance and hear that song. It’s an ‘open door’, history and culture for all our mob.

   17.When I was young, when I was a boy at Cundeelee, I heard the old men and ladies singing the mammu song, this Tjukurrpa. I also heard it at Tjuntjuntjara when I was older. They call it “mammu show”.

   18.I gotta look after the Tjukurrpa and stop the mining companies making pirti (holes) in the Lake. Where they already done some holes that’s wrong way. We can’t say playa (good/ok) to pirty in this birlkili (flat or lake).

   19.The lake is a Tjukurrpa, which we can’t let them drill. I don’t want Lake Yindarlgooda disturbed, they need to stay off the lake because it will wreck the Tjukurrpa and make people sick, tkilpi (old people) will get sick. If they drill, other wati will hear and I’ll get in trouble and people will be angry. They can drill up in the scrub but not on the lake, not from the sand ridge down to the lake either.

3. Mr Sinclair states he is a member of, and applicant for, the native title party, with authority under the native title party’s law to speak for the area of the proposed licence. It is clear that Mr Sinclair’s affidavit of 24 August 2011 contains information also relevant in this matter, and this has not been contested by parties. As such I accept the evidence of the native title party.

1. The Native Title Party filed contentions on the 19 December 2011, and further contentions in reply to the Government Party contentions in reply filed on 1 March, on the 16 March 2012.

Legal principles

1. 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.

2. In Walley and Others v Western Australia and Another (2002) 169 FLR 437 (‘Walley’), DP Sumner 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 licences in Walley (at 453-454 [34]) have been strengthened.

3. With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38] and [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28, [2008] FCAFC 23, [2008] ALMD 5175). I also adopt the findings of DP Sosso in Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’). 

Consideration of Auditor General’s Report

1. Accompanying the contentions and affidavit evidence of the native title party was a copy of the Western Australian Auditor General’s Report entitled Ensuring Compliance with Conditions on Mining (‘the Report’). The native title party’s contentions draw attention to the report’s findings regarding the AHA, specifically (pg 22):

   a.DIA has not actively monitored if operations are meeting the conditions place on them under the [AHA].  This means that registered Aboriginal heritage sites could have been lost or destroyed without the State knowing or taking action

   b.We found that DIA has only undertaken inspections of heritage sites when responding to complaints received, but has taken no enforcement action when it has found non-compliance.

   c.Because DIA has not been actively monitoring compliance with Aboriginal Heritage conditions, it does not know the actual incidence of breaches of those conditions

2. The native title party asserts that this highlights the deficiencies and ineffectiveness of the State’s regulatory regime, as described and adopted by the Tribunal in Maitland Parker, resulting in a far greater likelihood of interference with sites of particular significance.

3. The Government party’s Contentions in Reply (‘GVP replies’), in short, argue the following:

   ·the Report relates to mining operations and not exploration, so it was not ‘particularly relevant’ to this inquiry;

   ·the Report doesn’t contain any information which bears on the predictive assessment in relation to s 237(b) of the Act to the extent of ‘whether it is likely or not that a particular grantee party will interfere with an area or site of particular significance’;

   ·the regulatory regime of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) does not necessarily mean ‘no area or site could ever be interfered with’, and

   ·improvements have been made to the regulatory regime since the Report data collection period ended (June 2011).

4. The Tribunal recently considered the effect of the Report on the weight given to the State’s regulatory regime and, in turn, the predictive assessment required by s 237(b) (see Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (‘ASJ Resources’)).

5. I largely agree with the findings of Member Shurven in ASJ Resources in relation to the impact of the Auditor General’s report. However I also accept the Governments argument that in order to establish that a protective regime operates effectively does not necessarily require universal compliance by enforcement of those protective procedures. As Member Shurven acknowledged ‘I do, however, agree with the Government party’s reply that weight must also be given to the evidence provided in relation to the proposed activities of each particular grantee party’ (ASJ Resources at [50]).

Section 237(a) – community or social activities

1. The Tribunal is required to make a predictive assessment as to whether the grant of the tenement, and activities undertaken pursuant to it, are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interferences) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’).  The notion of 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 into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).

2. The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 46 and conditions to be imposed on prospecting licences, s 20(5) in relation to pastoral leasehold areas 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. The Tribunal has previously found that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).

3. Government party documentation notes that some exploration and prospecting activity has occurred over the proposed licence between 1991 and 2005. While there is no specific evidence as to the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that such activities may have, to some extent, interfered with the native title party’s obligations to look after some areas of country.  In addition, pastoral activity has probably affected the capacity of the native title party to carry out its traditional, social or community activities to some extent.

4. The native title party has not made any contention in relation to ss 237(a). The affidavit of Mr Sinclair contained in DS1, makes passing reference to going to “the area around Lake Yindarlgooda many times with my family for hunting, camping and to learn and teach bush skills with my family” (DS1 at para 11). However, this evidence is general in nature and provides no indication that these activities take place on or near the area in question, as opposed to the far greater balance of area that is Lake Yindarlgooda. Given the affidavit contained in DS1 was prepared for a separate matter, relating to a tenement that is located approximately 21 kilometres to the east, there can be no reason to presume the area Mr Sinclair is referring to and the area of the proposed licence are one and the same.

5. The evidence adduced in this matter by the native title party does not provide any basis for suggesting that there are significant social or community activities carried out by the native title party in or within the vicinity of the proposed licence, which are likely to be affected by the grant of the tenement.  I find that the grant of the proposed licence is not likely to directly interfere with the exercise of the community and social activities of the native title party.

Section 237(b) – sites of particular significance

1. The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows one registered Heritage Place within the proposed licence, but this does not mean there may not be sites or areas of particular significance to the native title party within or in the vicinity of the proposed tenement. 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.

1. The evidence of Mr Sinclair attests to Lake Yindarlgooda and the surrounding sand dunes as being an area of particular significance. Mr Sinclair deposes to visiting the area around the lake ‘many times with my family’ (DS1 at para 11).  Mr Sinclair states Lake Yindarlgooda is Mammu Tjukurrpa (Devil/Ghost Dreaming) (DS1 at para 13) and that the ‘mammu lived at Mt Monger but on their way to Mt Monger from Coolgardie, they travelled and hunted on Lake Yindarlgooda’ (DS1 at para 14).  Importantly, Mr Sinclair states ‘The Mammu Tjukurrpa is all over the Lake Yindarlgooda           - on the lake, on the sand dunes, on the islands - they’re all connected. They’re all part of the Tjukurrpa.’ (DSS Affadavit para 4).  Mr Sinclair also states that the Lake is ngulu (dangerous) and ‘when we come here we got to burn smoke to let the mammu know we are here. The tjilpi (old men) taught me it’s the whole lake that’s ngulu’ (DS1 at para 14).    Mr Sinclair explains that ‘Tjukurrpa is our history, connection stories, our Aboriginal Law’ (DS1 at para 6) and that if a Tjukurrpa place gets damaged or disturbed people will get sick (DS1 at para 8 and 19).  Mr Sinclair deposes to the fact that it is his job to look after this country, including Lake Yindarlgooda (DS1 at para 7) and he must look after the Tjukurrpa so that they can pass it on (DS1 at para 8).  Mr Sinclair indicates he is aware that mining companies have done drilling on the lake previously but that ‘that was all wrong. It should never have happened. White people...need to leave that lake alone’ (DS1 at para 9).  Mr Sinclair suggests that ‘there might be some areas that are away from the lake that are acceptable for disturbance’ (DSS Affidavit, para 7), and that ‘they can drill up in the scrub not on the lake, not from the sand ridge down to the lake either’ (DS1, para 19), but that a member of the native title party ‘who knows that area would need to go out and see it in person to be sure which areas are alright’ (DSS Affidavit, para 7).

2. In its contentions in reply, the Government party notes that Lake Yindarlgooda is a large salt lake of approximately 1145 square kilometres. It notes that, while there are no registered sites in the area covered by the proposed tenement, the lake as a whole is listed as an ‘other historical place’ on the Aboriginal Heritage Inquiry System. It contends that the fact that it is so listed is not determinative of the question of whether the lake or the area of the proposed tenement is ‘of particular significance’ within the meaning of section 237(b) of the NTA. The status of the lake or the proposed tenement must be determined by an evaluation of the evidence adduced by the native title party. I agree with this contention. At paragraph 56 of the Governments party’s contentions in reply, they contend that ‘to say that any place or area crossed by a Tjukurrpa or associated with a particular dreaming qualifies as an area or site of particular significance raises the inference that the native title party is setting a low threshold which would encompass most, if not all, areas in any native title claim area.’  They refer in support of that propositions to my recent decision in WF(deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA17 at [39]. In that decision I made reference to an assertion by Doctor William Kruse, to the effect that he

   ‘deposes to the fact that areas and locations associated with the specific activities of mythic beings are typically deemed the most culturally significant by Martu people and there protection is considered paramount.  He states this is the basis by which Martu people distinguish country which is generally spiritually significant – as Martu religion is intrinsically linked to land and country – from specific culturally significant areas requiring protections from activities that are perceived to cause damage or harm....It would seem to me to be reasonable on the basis of this classification to come to the conclusion that the areas subject under the specified dreaming tracks within the proposed tenement area are areas that might be deemed to be generally significant whereas, arguably, the sites particularly the Tjarlka site and Mt Bartle and Mt Russell could be regarded, being manifestations of specific activities of mythic beings, as specific culturally significant areas and therefore particular significance to the Martu people. This such a distinction where not drawn, it would be on the argument of Dr Kruse, necessary to categorise all Martu land, including land which is covered by the current application as of particular significance to the Martu people.’

At paragraph 58(b) of the Government party contentions in reply, the Government party seeks to argue that the evidence of Mr Sinclair reflects ‘a general spiritual concern’ to which section 237(b) of the NTA does not apply. They argue that to enliven section 237(b) of the NTA spiritual or emotional concerns must attach to physical interference with an identified area or site of particular significance within the proposed tenement area and which stands out from the background of general Tjukurrpa spiritual dreaming associated with Lake Yindarlgooda or the claim area as a whole. The difficulty with this contention is that the plain evidence of Mr Sinclair demonstrates that because of the presence of the Mammu Tjukurrpa the whole of the lake is imbued with a spiritual and emotional nsignificance to the native title party. In my understanding, what Mr Sinclair is saying is that the lake, not withstanding its size, is in fact a site of particular significance to the native title. The Mammu Tjukurrpa inhabit the landscape on a permanent basis and in consequence all of the lake needs to be protected and interference with it would be prejudicial to the spiritual and physical welfare of the members of the native title party, in particular initiated men such as Mr Sinclair. It is also notable that the Tribunal has previously found that a large lake can be characterized as a site of particular significance in its entirety in relation to Lake Disappointment (Western Desert Lands Aborginal Corporation v Western Australia and Another [2009] NNTTA 49 at 149).

1. On the basis of Mr Sinclair’s evidence, the native title party asserts in its contentions that the area of Lake Yindarlgooda is a site of particular significance.  The native title party does not identify any specific sites within the area of the proposed tenement, or within the area of the lake for that matter, that bolsters this contention, but rather asserts that the lake as a whole is a site of particular significance and any disturbance to any part of the lake damages the native title party’s culture and history.  I believe Mr Sinclair has demonstrated with sufficient detail, that Lake Yindarlgooda is an area of particular significance to the native title party.  It is clear that the lake is an integral part of the Mammu Tjukurrpa dreaming story and that under traditional laws and customs certain members of the native title party have an obligation to monitor and control any person’s access to and activities within the area of the lake.

2. Having found that the proposed tenement is within the boundaries of a site of particular significance to the native title party, I am required to reach a view as to the likelihood of that site being interfered with if the tenement were granted given the existence of the Western Australian protective regime. The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [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 Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Butcher Cherel’) at [81]-[91]). The Tribunal must consider, based on the facts of a particular case 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 which are found to exist. In ButcherCherel, the Tribunal found that although there were sites of particular significance in the area of the proposed licence, and even in the absence of a Regional Standard Heritage Agreement (‘RSHA’), AHA protection was sufficient because of the evidence of the intentions of the grantee party to protect any sites of significance and consult with the native title party before ground disturbing work was undertaken.

3. In this matter the grantee party has not provided any evidence of its intentions in relation to the exercise of its rights under the grant of the proposed tenement. It has, in accordance with Government policy, given an indication of its willingness to enter into the RSHA appropriate to the Goldfields region should the native title party accept its offer to do so. As is discussed in Butcher Cherel, the intentions of a Grantee party in circumstances where the existence of a sight of particular significance has been identified within a proposed tenement area is of great importance.  In these particular circumstances there is an absence of any indication from the grantee party of its intentions; the RHSA allows non ground disturbing work to take place without the need for consultation with the native title party; and, the native title party has demonstrated the clear importance and significance of the lake. As such, it is my view that, without further cooperation between the native title party and the grantee party, there is likely to be disturbance to a site of particular significance to the native title party, being that part of the lake covered by the proposed tenement.

237(c) – land or waters

1. The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 at [41]-[57]).The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration or prospecting will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration or prospecting activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that prospecting and exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion [74]-[79]) and the cases cited therein). As with ss 237(a), the native title party has not made any contention in relation to ss 237(c) in this matter, therefore the evidence does not establish that the grant of the proposed licence will result in a major disturbance to land or create rights which will do so.

Determination

1. The determination of the Tribunal is that the grant of prospecting licence P25/2206 to Karl Christian Pirkopf is not an act attracting the expedited procedure.

Daniel O’Dea
Member
9 May 2012