Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd
[2012] NNTTA 24
•14 March 2012
NATIONAL NATIVE TITLE TRIBUNAL
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24 (14 March 2012)
Application No: WO11/528
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Daisy Lungunan and Others on behalf of Nyikina and Mangala (WC99/25)
(native title party)
- and -
The State of Western Australia (Government party)
- and -
Geotech International Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 14 March 2012
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere with sites of particular significance – whether act is likely to interfere with community and social activities – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Mining Act 1978 (WA), s 66
Aboriginal Heritage Act 1972 (WA), ss 5, 6, 17
Cases:Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Cheinmora v Striker Resources NL and Others (1996) 142 ALR 21; [1996] FCA 1147
Dann v State of Western Australia and Another (1997) 144 ALR 1; [1997] FCA 332
Daisy Lungunan & Others on behalf of the Nyikina & Mangala Native Title Claimant Group/Western Australia/Conquest Mining NL, [2002] NNTTA 193
Dora Sharpe and Others and Ashburton Minerals and Ripplesea Pty Ltd and WA [2004] NNTTA 31
Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37
Les Tullock and Another on behalf of Tarlpa/Western Australia/Dukeden Consolidated Pty Ltd [2011] NNTTA 124
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Nyikina and Mangala Peoples/Western Australia/Rey Resources Ltd, [2007] NNTTA 78
Otto Oil Pty Ltd/State of Western Australia/Nyikina & Mangala People and Rubibbi People [2004] NNTTA 34
Parker on behalf of the Martu Idja Banyjima People v State of 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; [2002] NNTTA 24
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17
Wilma Freddie/Western Australia/Stephen Grant Povey [2001] NNTTA 162
Young v Western Australia and Another (2001) 164 FLR 1; [2001] NNTTA 42
Solicitors for the Mr Reece O’Brien and Ms Jacki Cole
native title party: 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 Dennis Jacobs and Mr Clyde Lannan
Government party: Department of Mines and Petroleum
Representative of the
grantee party: Mr Paul Askins, Geotech International Pty Ltd
REASONS FOR DETERMINATION
On 12 January 2011, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2015 (‘the proposed tenement’) to Geotech International Pty Ltd (‘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).
The proposed tenement comprises an area of 117.14 square kilometres located 107 kilometres south east of Derby in the Shire of Derby-West Kimberley and is 100 per cent within the Nyikina and Mangala native title claim (WC99/25 – registered from 28 September 1999). No other native title claims overlap the proposed tenement.
On 12 May 2011, Daisy Lungunan and Others on behalf of the Nyikina and Mangala 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.
On 27 May 2011, Deputy President Sumner was appointed Member for the purposes of conducting 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 period after the s 29 closing date (12 May 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.
Between 14 June and 10 August 2011 a number of conferences were held at which the grantee and native title parties advised they were attempting to negotiate an agreement that would facilitate the withdrawal of the application. At the status conference of 24 August 2011, the native title party advised that negotiations had not been successful and requested an extension to the standard directions to collect evidence for an inquiry into the application.
The Government party lodged its submissions on 12 August and 1 September 2011. On 21 December 2011, following two further requests for an extension, the native title party lodged its contentions and the affidavit of Annie Milgin sworn 13 December 2011. On 19 January 2012 a listing hearing was held at which the Government party requested leave to consider the native title party’s contentions, with a view to filing further Government contentions in reply. The Government party indicated it would require two to three weeks in order to complete that task. The grantee party advised that it would rely on the Government party submissions.
On 20 January 2012, I was appointed as the Member for the purposes of conducting the inquiry into the application. I granted the Government party leave until 7 February 2012 to provide its additional submissions. Notwithstanding the statement by the grantee party at the directions hearing on 19 January 2012 that it would rely on the Government party’s submissions, the grantee party filed a statement of contentions on 20 January 2012.
I have considered all the submissions from the parties and I am satisfied that the application can be adequately determined on the papers (s 151(2) of the Act).
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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘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) (‘Mining Act’) has since been amended and the Standard Conditions to be imposed on licences in Walley (at 453-454 [34]) have been strengthened.
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 State of 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.
Evidence in relation to the proposed act
According to Tribunal mapping and the Government party’s documentation, the proposed tenement is intersected by the Fitzroy River along its southern boundary, Six Mile Creek which runs east west through its centre, Seventeen Mile Dam along its eastern boundary, Uralla Creek which runs through its northern portion, numerous channels, and some 87 springs, soaks, rockholes or waterholes.
The Government party’s documentation establishes the underlying land tenure of the proposed tenement as follows:
- Liveringa Pastoral Lease I087500 at 40.5 per cent;
- Fitzroy Crossing to Nobbys Well Stock Route Common Reserve CR 23226 at 20.7 per cent;
- Private Land CG 00030 at 14.9 per cent;
- General Lease H711938 at 14.7 per cent;
- Private Land CG00039 at 3.8 per cent;
- Water & Stopping Place Common Reserve CR 1311 at 2 per cent;
- Vacant Crown land at 1.2 and 0.6 per cent;
- Myroodah Indigenous Held Pastoral Lease 3114/1165 at 0.4 per cent; and
- Four Road Reserves at less than 0.1 per cent each.
The proposed tenement is also overlapped by Historical Lease 396/444 at 3.1 per cent, National Heritage Listing 106063 at its entirety and by the National Estate Registered Site NER/18366 to the extent of 99.5 per cent. The Register of the National Estate details the Camballin Floodplain area has an abundance of flora and fauna, in particular waterbirds.
There are no Aboriginal communities identified within the proposed tenement area. However, according to Tribunal mapping, there are two Aboriginal communities within the immediate vicinity being Looma and New Looma, located approximately five to seven kilometres west of the proposed tenement. Additionally, the communities of Luluigui, Jarlmadanka, Jarlmadangah and Balginjirr are located between 20 and 40 kilometres west of the tenement in the vicinity of the Fitzroy River and within the native title party’s claim area.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals three Registered Aboriginal Sites and two Heritage Places registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) overlapping the area of the proposed tenement as follows:
- Fitzroy River Site ID 12687, mythological, open access;
- Liveringa Site ID 13184, skeletal material/burial, closed access;
- Walangari Site ID 13185, ceremonial, closed access;
- Walangari Camp Heritage Place Site ID 13186, ceremonial, camp, closed access; and
- Myroodah Station Heritage Place Site ID 14449, repository/cache, closed access.
According to the Government party’s Quick Appraisal documentation, the proposed tenement is currently overlapped by PA67 petroleum exploration permits EP 428, EP 458 and EP 457 overlapping at 97.9, 1.4 and 0.7 per cent respectively. Tribunal records indicate all three exploration permits were the subject of consent determinations with the native title party, because although a satisfactory agreement had been reached with each of the grantee parties, there were legitimate difficulties in obtaining the signatures of all persons comprising the native title party applicant to the s 31(1)(b) agreement (Otto Oil Pty Ltd/State of Western Australia/Nyikina & Mangala People and Rubibbi People [2004] NNTTA 34; Nyikina and Mangala Peoples/Western Australia/Rey Resources Ltd, [2007] NNTTA 78).
The Government party’s Quick Appraisal documentation also indicates that five cancelled temporary reserves overlapped the proposed tenement between 6.9 and 100 per cent, of which four were active between 1965 and 1969 and one was active between 1980 and 1988. Three surrendered mineral claims, active between 1980 and 1981, overlapped the proposed tenement at one per cent each.
In addition, the Government party’s Quick Appraisal documentation notes the proposed tenement was overlapped by exploration licence E04/1189 to the extent of 31.5 per cent. According to Tribunal records, E04/1189 was the subject of an objection application lodged on 15 October 2001 by the native title party. On 23 August 2002, the Tribunal made a determination that the expedited procedure did not apply because sub-ss 237(a) and (b) of the Act were invoked (Daisy Lungunan & Others on behalf of the Nyikina & Mangala Native Title Claimant Group/Western Australia/Conquest Mining NL, [2002] NNTTA 193 (‘Nyikina & Mangala’)). Government party’s records indicate that, subsequent to the Tribunal’s determination, the application for exploration licence E04/1189 was withdrawn prior to grant on 7 November 2002. Pursuant to s 146 of the Act, I may consider the evidence and findings of the Nyikina & Mangala inquiry, if they are relevant in this manner
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]), two further conditions requiring the pastoral lessee to be notified of the grant of the licence and of certain exploration activities (Conditions 5-6) and:
‘7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Water & Stopping Place Reserve 1311.
8. Written notification, where practicable, of the time frame, type and extent of proposed ground disturbing activities being forwarded to the Department of Water Kununurra seven days prior to commencement of those activities.
9. Any significant waterway (flowing or not), wetland or its fringing vegetation that may exist on site not being disturbed or removed without prior written approval from the Department of Water.
10. The rights of ingress to and egress from the Licence being at all reasonable times preserved to officers of the Department of Water for inspection and investigation purposes.
11. The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Department of Water’s Guidelines and Water Quality Protection Notes.
12. Activities requiring the abstraction of water from any waterway, wetland or drain is prohibited unless the Department of Water has granted an abstraction licence.
13. Activities that may disrupt the natural flow of any watercourse are prohibited unless a licence has been obtained from the Department of Water.
14. Activities on any existing or designated future irrigation area, or on any strip of land within 50 metres of an irrigation channel, drain wetland or watercourse being confined to surface geological, geophysical and or geochemical surveys and drilling unless the written approval of the the [sic] Department of Water is first obtained.
15. Excavation activities are prohibited on any existing or designated future irrigation districts, or on any area of land within 50 metres of the banks of an irrigation channel, drain, wetland or watercourse, unless undertaken with the written permission from the Director, Environment, DMP and the Department of Water.
16. All Mining Act tenement activities prohibited within 200 metres of RAMSAR or ANCA listed wetlands unless written permission of Department of Environment and Conservation, in consultation with the Department of Water, is first obtained.
17. All Mining Act tenement activities prohibited within 200 metres of “Conservation” and “Resource Enhancement” Category wetlands unless written permission of the Department of Water is first obtained.
Consent to explore on Stock Route Reserve 23226 granted subject to:
18. No exploration activities being carried out on Stock Route Reserve 23226 which restrict the use of the reserve.’
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;
·Rights in Water and Irrigation Act 1914 and any Regulations thereunder;
·Water and Rivers Commission Act 1995 and any Regulations thereunder; and
·Identification of environmental sensitive wetlands listed within the RAMSAR Convention 1971, ANCA’s Directory of important wetlands, the National Estates Register and the Environmental Protection Policies 1999.
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.
3. The land the subject of this licence affects an area under quarantine for Noogoora Burr (under the provisions of the Agriculture and Related Resources Protection Act 1976) delineated in red and shown as File Notation Area 320 in TENGRAPH. Access to the quarantine area is subject to the licensee obtaining an entry permit from the Kununurra Regional Office of the Agriculture Protection Board of Western Australia.
4. The grant of this Licence does not include any private land referred to in Section 29(2) of the Mining Act 1978 except that below 30 metres from the natural surface of the land.’
In the contentions of the Government party (at 5(d)), a further Regional Standard Heritage Agreement condition (‘the RSHA condition’) will be placed on the grant of the proposed tenement:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Nyikina & Mangala, the applicants in Federal Court application no. WAD6099 of 1998 (WC99/25) such request being sent by pre-paid post to reach the Licensee's address, 214 York Street, Subiaco WA 6008 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Nyikina & Mangala the Regional Standard Heritage Agreement endorsed by peak industry groups [eg Goldfields/South West/CentralDesert/Pilbara/Yamatji Land and Sea Council RSHA] offered by the Kimberley Land Council.’
Section 66 of the Mining Act sets out what a holder of an exploration licence is authorised to do.
‘An exploration 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 exploring for minerals in, on or under the land;
(b) to explore, 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 therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.’
The prescribed limit for the purposes of s 66(c) of the Mining Act is 1000 tonnes: Regulation 20 of the Mining Regulations 1981 (WA).
There is no dispute that the future act encompasses both the grant of the proposed tenement and the activities which may be carried out pursuant to it.
Native title party contentions and evidence
In support of its statement of contentions the native title party has provided the affidavit of Annie Milgin, sworn 13 December 2011 as follows:
‘I Annie Milgin, health worker, affirm:
1. I am a senior woman and elder of the Nyikina Mangala Native Title Claim Group (WC99/25) and under our law I have authority to speak for Nyikina and Mangala native title determination application area, “Nyikina and Mangala Country”.
2. I was born on 1 July 1950 at Paradise Station which is within the Nyikina and Mangala Country. I am connected to Nyikina and Mangala Country through my father, Darbi Nangarin (Jayikala), my grandfather Tommy Kunjugar and my great-grandfather Marrka Buck.
3. I know the area where Geotech International Pty Ltd, “the Grantee Party”, has applied for an Exploration Licence (E04/2015), the “Exploration Licence Area”, very well because I have been shown maps of the area and this area is in Nyikina and Mangala Country. The maps I have been shown are attached to this affidavit and are marked “A1” and “A2”.
4. 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.
Interference with community and social life
5. The Exploration Licence Area is close to Jarlmadangah Burru where I live. It is also close to the communities at Looma (Nyaliwinyan) and Camballin (Badjayankoodany).
6. I visit the Exploration Licence Area very often to do many activities including camping, hunting, fishing, collecting bush tucker and bush medicine and to tell our children about the stories about the land and the Dreamtime (Bookarikarra).
7. I visited the Exploration Licence Area two weeks ago to go fishing and some family members also went to Bidinyan, which is in the Exploration Licence Area, last week to go fishing.
Hunting, fishing and bush tucker
8. I was taught about hunting, fishing, bush tucker and bush medicine from my mother, father and grandmother. I have to pass on this knowledge and my culture to my children and grandchildren.
9. If we camp in the Exploration Licence Area we usually sleep near Liveringa Pool to go fishing and hunting. We can get water straight from the river and there are also billabongs we know about in the area.
10. We use different types of wood to make fires and cook. We use light wood to cook fish and heavy wood to cook emu and kangaroo. We also can use River Gum wood as seasoning for cooking fish. We always cover up the fires before we leave.
11. There are lots of different things we catch when we visit the Exploration Licence Area. We catch Barramundi (Walja), Catfish (Barooloo), Crocodile (Koowaniya), Sawfish, Black Bream, Stingray (Baya/Blankirr), Freshwater Cherabun (Jarramba).
12. We often go hunting in the Exploration Licence Area to teach our children and to maintain our culture. It is very important to go fishing when people are fasting (Jaminy) after a loved one has passed on because the family cannot eat red meat. It is very important that during Jaminy that people get their food from the river.
13. We share our catch with our family especially when we catch a big mob of Cherabun. It is important not to waste anything we catch from the river because of Rai. Rai is a little spirit man who gives songs to people in their sleep.
14. When we go hunting goanna we still use our traditional stick which is made from the hard wood from the Boolissi tree which grows in the Exploration Licence Area.
15. We also can tell from certain trees flowering that it’s time to collect crocodile eggs.
16. The Exploration Licence Area is a flood plain and contains the river, swamps and billabongs. The exploration drilling may cause problems when the area floods after rain and will damage the water system.
17. Because the Exploration Licence Area is a flood plain we are able to collect a lot of freshwater crabs (Kamba) in that area. The Kamba have an important story in the dreamtime and we use them as bait for fishing during flood water time.
18. One of our traditional methods for fishing in the Exploration Licence Area is collecting a big mob of Kamba and crushing them in our hands. The crushed crabs are squeezed into a bunch of green grass and placed at the edge of the river. This method is called Kalooloo and it attracts fish to the shore for when we fish during the flood time.
19. We also know all the types of the trees in the Exploration Licence Area and the different witchety grubs which are in the roots of the different trees. These trees grow along the river in the Exploration Licence Area.
20. The exploration in the Exploration Licence Area would interfere with our hunting and fishing because they will take water from the river. This will take up our fishing spots and could poison the water. This is a big problem because the Exploration Licence Area covers a flood plain.
Bush Medicine
21. We also use the Exploration Licence Area to collect lots of types of bush medicine. We use the cockroach bush (Birral birral) for insect bites, snake vine (Wilkara) for headaches, freshwater mangrove (Majala) as a natural anesthetic [sic], booniyan for keeping mosquitoes away, blood wood tree (Bilawal), the four types of wattle tree (Koorlban) and spikey vine (Balkada).
22. The Majala grows throughout the Exploration Licence Area and it has a very important story. It is a very powerful anesthetic [sic] and we use it when we get stung by barramundi and catfish.
23. Majala is also used to fish. When it is crushed and thrown into the water the fish get stunned and can be caught.
24. We have bush medicine which we use for headaches, spikes from fish, sores like cold sores, ringworm and rashes. Exploration in the Exploration Licence Area will clear trees which have a very important story and which we need for our bush medicine.
25. I am very worried that the exploration will disturb the rainbow serpent (Yoongoorookoo) who lives in the ground in the Exploration Licence Area.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
26. The Exploration Licence Area has a lot of very important areas because Oongooboo (the Dreamtime Man) travelled up and down this country following the channels to the Fitzroy River. The travels of Oongooboo are contained in our songs and stories about the country.
27. Oongooboo travelled up and down the channels in the Exploration Licence Area until he reached a spot in the water where he used Majala to poison the water and stun the fish so he could catch them. This place is in the Exploration Licence Area and is a very important area. We still go there often because there are a lot of fish in this area.
28. Along his travels Oongooboo left his fossils. There is a special place in the Exploration Licence Area where you can see fossils of his arm and two legs. The fossils are from when Oongooboo was waiting for big fish. I’ve seen this myself – it’s true. My Dad took me there with my brothers and my sisters.
29. There are many songlines from the mouth of the Fitzroy right through to the Koorabay. The Exploration Licence Area is in this area and the songs from this country talk about the different animals and fish.
30. We carry on these stories and the law from Oongooboo. He gave us the law and we must do the right thing and carry on the law.
31. If these songlines are disturbed and we are not able to pass them on to our children it means we’re not listening to the old people. It breaks our spirits and our ancestors spirits (Liyan).
32. If we do not look after the songlines and our culture the spirit that lives in that land, the Rai, will go away to another place and will not come back.
33. The Exploration Licence Area is also used for law and ceremony. This occurs mainly in the wet season in December but it depends on the age of the boys. People come from all different language groups around to do ceremony.
34. When we do ceremony we usually camp for a few days and people stay up all night to dance and sing. The men sing and the women dance.
35. Women have their own business and men have their own business. I cannot talk about men’s business and men cannot talk about women’s business.
36. The exploration in the Exploration Licence Area would mean that we have to do ceremony somewhere else because these ceremonies are private.
37. If we could not do our ceremony there at the right time we would be interfering with the dreamtime story which is very significant and should not be disturbed. I have a responsibility to look after the sites in the Exploration Licence Area. This responsibility was passed on from Oongooboo to the old people, and from the old people to us. We must pass this on to our children.
38. The ceremony and law are very important for looking after the land.
39. When these places get damaged it makes me feel sad and worried about what’s left for our children. It also makes the old people sad because their spirits are still with us in the land.
40. It is dangerous for anyone to travel to these special areas without proper ceremony. Something bad might happen to people who damage the country like the Grantee Party might do.
41. In our law and culture when somebody wants to come onto our land they must come and see the traditional owners and get a welcome properly. We have a welcoming ceremony where we rub rock under your armpit and before you enter the elders must talk to the spirit. We also have a smoke ceremony so that they are safe and no harm comes to them. We smoke them with Koongkara tree.
42. To stop damage to the country in the Exploration Licence Area we have to be there with the mining company. We have to have Traditional Owner monitors with them all the time. These people must be the right people and the people doing the exploration have to abide by our rules. If our monitors go with the Grantee Party, they can make sure that the Grantee Party doesn’t get sickness or a rash.
MAJOR DISTURBANCE TO LAND OR WATER
43. There are places in our country where mining companies have cleared trees which we need for bush medicine.
44. On our land we have had to tell the mining company Rey Resources about not destroying the Malagei. The Malagei is in the trees and in the river and everywhere. Trees are very important because they are the home for Rai. The Rai does bad things to you if you do bad things to it but it also can direct and look after you and give you songs. Balangan are little spirits which live in the land but in different trees like Boab trees.
45. I have been working with anthropologists to tell them where the Malagei is so they can tell the miming [sic] companies. We need to be able to talk to the mining companies to make sure they don’t destroy the Malagei otherwise we would get blamed because we are not doing the write [sic] thing. We also have to look after our own people working with the mining companies, not only white people (Gudiya).
46. I know of other places where sacred sites have been damaged because of exploration and mining like Argyle where a sacred women’s site for Barramundi Dreaming was damaged. We didn’t practice that story but we know of this because we have meetings of the Land Councils and we’re told about the damage mining companies do to people’s land.
47. We are very protective of our country and we make sure that it is not damaged. It is very important the land in the Exploration Licence Area is not damaged and the mining company come and talks [sic] to us before doing anything on the land.
48. The answers in this affidavit are true based on my own knowledge.’
Ms Milgin states she is a senior woman and elder of the native title party claim group and has authority under the native title party’s law to speak for the area of the proposed tenement. Her evidence is uncontested and I accept it.
Government party contentions and evidence
In addition to the standard contentions and evidence it submits for all objection applications proceeding to an inquiry before the Tribunal, the Government party also lodged a document entitled the ‘Government Party’s Statement of Contentions in Response to the Contentions of the Native Title Party’ on 8 February 2012. The document rewrites and elaborates upon the original contentions provided by it, and includes a detailed appraisal and rebuttal of the evidence of Ms Milgin.
Grantee party contentions and evidence
Notwithstanding the grantee party’s indication at the directions hearing on 19 January 2012 that it would rely on the Government party’s contentions, the grantee party filed a statement of contentions on 20 January 2012. In those contentions, the grantee party concedes that the native title party has grounds for valid concerns in relation to the protection of heritage sites and the respect for cultural issues within the proposed tenement area. The grantee party advises that it has consulted the DIA website and it is of the view that there is a potential for interference with sites of significance if ground disturbing activities were carried out. The grantee party asserts that they are aware of the operation of the AHA and the grantee party’s obligations under that Act. The grantee party accepts that it is necessary for it to enter into the Regional Standard Heritage Agreement (‘RSHA’) proposed by the State in order to ensure that heritage sites are protected. The grantee party reiterates its willingness to enter into such an agreement with the native title party, notwithstanding that the native title party has rejected that offer. Further, the grantee party indicates that it is willing to undertake heritage surveys over any areas where ground disturbing activities are planned, apart from private land in circumstances where surveys have already been conducted. The grantee party asserts that the exploration planned in the first year “is entirely office based”. In the second year it asserts that any on ground activity will be based on the first year’s results and will be non ground disturbing. If any drilling is carried out in areas other than private land, it states that heritage surveys would be required. The grantee party also indicates that as there are many existing roads and tracks within the area, it is unlikely that there will be need for new access tracks to be constructed, and in any event the grantee party agrees to meet all the rehabilitation standards of the Mining Act and Regulations. Finally, the grantee party agrees that it will not conduct any activities on the ground within the confines of the registered site along the Fitzroy River, which are marked on the map at the western end of the tenement area.
Section 237(a) – community or social activities
The evidence of the native title party in relation to this matter is contained in the affidavit of Annie Milgin sworn on 13 December 2011. In the portion of the affidavit relevant to s 237(a): Ms Milgin states that she lives at Jarlmadangah Burru, which is located on the Mount Anderson pastoral lease, approximately 20-25 kilometres west of the western boundary of the proposed tenement area. The communities of Looma and New Looma (Nyaliwinyan) are approximately five to seven kilometres to the west of the western boundary of the proposed tenement area, and the town of Camballin (Badjayankoodany) is approximately three kilometres north west of the proposed tenement area (at para 5). Ms Milgin deposes to the fact that she visits the area very often, most recently two weeks before she swore the affidavit, to camp, hunt, fish, collect bush tucker and medicine and tell stories to her children about the Dreamtime (Bookarikarra) (at para 6). When in the area, members of the native title group catch a range of fish, including barramundi (walja), catfish (barooloo), crocodile (koowaniya), sawfish, black bream, stingray (baya/blankirr) and fresh water cherabun (jarramba) (at para 11). They also catch kangaroo and emu, and they cook the animals and fish using different types of wood. When hunting on the area, the members of the native title party teach their children to maintain culture and share food with fellow members of their group (at paras 12-13). Ms Milgin states that they go hunting for goanna using a traditional stick made from the boolissi tree, which grows in the proposed tenement area (at para 14), and they collect crocodile eggs (at para 15). It is also suggested that during the flood times they collect a lot of freshwater crabs (kamba) in the area and use them for bait. They also hunt for witchety grubs, being able to identify where they may be by their knowledge of the trees that grow in the area of the proposed tenement (at para 19). Ms Milgin states that she believes the little spirit man Rai will be annoyed if they waste any fish they catch in the river (at para 13). Ms Milgin also deposes to the fact that they collect bush medicine from the area of the proposed tenement including cockroach bush (birral birral), snake vine (wilkara), freshwater mangroves (majala), booniyan for keeping mosquitoes off, blood wood (bilawal) and four types of wattle (koorlban) and spiky vine (balkada). Majala is important as it is a natural anaesthetic and it is used for catching fish (at paras 21-23). In her affidavit in relation to these matters, Ms Milgin also states that she is worried that drilling will cause problems when the area floods and damage the water system, and that exploration activities are likely to lead to poisoning of the water and clearing of important bush medicine trees. Finally, Ms Milgin indicates that she is worried that exploration activity will disturb the Rainbow Serpent (Yoongoorookoo), who lives in the ground in the proposed tenement area (at para 25).
At para 13 of the native title party’s contentions, the community and social activities of the native title party are summarily categorised under eight points. Of those eight, I accept that the affidavit of Ms Milgin provides evidence in relation to at least two, i.e. (d), members of the native title group hunt and fish in the proposed tenement area, and (e), members of the native title party visit country and collect traditional foods and products in the tenement area. I also accept, as part of (b), that they camp on the area, notwithstanding evidence from Ms Milgin at para 9 of her affidavit, where she says that when they go there they camp at Liveringa Pool, which is outside and to the west of the proposed tenement area. However, there does not appear to be evidence that they live on the area or indeed ‘conduct their community’ within the area. Further, at point (c) of the summary, it is asserted that the native title party conduct law ceremonies in the tenement area, at point (f), that they look after paintings, burial places and sites of importance and significance, and at point (g), that they have ancestors and family members buried close to the proposed tenement area. There doesn’t appear to me to be any evidence in the affidavit of Ms Milgin that would sustain those contentions. Similarly, the first summary characterisation at (a) states the members of the native title party belong to the country within the tenement area. Firstly, Ms Milgin makes no such assertion in her affidavit, secondly, as the Government party contends in their contentions filed on 8 February 2012, belonging to country is not an activity, but a state of belief or a state of mind, in the sense that belonging to country might be manifested by physical activities. Those activities are mentioned in reference to hunting, gathering, etc, but belonging to country in itself cannot be characterised as an activity for the purpose of considering the impact of s 237(a) (see Government party contentions para 43). Such a submission is analogous to the question of whether or not activities referred to in s 237(a) can have a spiritual dimension. As the Government party contends at para 34:
‘While certain activities of native title parties may have a spiritual dimension, section 237(a) of the NTA is concerned with interference directly with the physical aspects of the relevant activity … Accordingly, spiritual activities are within the scope of section 237(a) of the NTA only when the activities are rooted in physical activities. In other words, for section 237(a) to be engaged, the native title party must identify a physical dimension of the community or social activity relied on. It is that physical dimension which must be physically interfered with (Silver v Northern Territory (2002) 169 FLR 1 at [49]-[62] and Drury v Western Australia (2002) 170 FLR 182 at [17.1]).’
In the previous Nyikina & Mangala matter mentioned in [19] above, the evidence of the native title party, particularly in the affidavit of John Watson and Aggie Puertollano in relation to community and social activities was considerably more precise and detailed than that contained in the affidavit of Ms Milgin. In that matter, there had been no submissions made by the grantee party of how it intended to exercise its prerogatives within the area of that proposed tenement. In this matter, the grantee party has indicated in its contentions that it will not engage in on country activities in the first year of the grant of the proposed tenement. In the second and subsequent years, the grantee party foresees that it will need to carry out activities within the area of the proposed tenement, and has indicated its preparedness to enter into a RSHA which would require the conduct of surveys prior to ground disturbing activity, and its commitment to remain outside the area of the registered site along the Fitzroy River on the western end of the proposed tenement area.
The native title party, at para 15 of its contentions, suggests that direct interference with the carrying on of community and social activities cannot, logically, be insubstantial in its impact. The Government party, at para 49 of its contentions takes issue with that proposition and refers to the decision of French J in Smith v Western Australia and Another (2001) 108 FCR 442; [2001] FCA 19 where it was noted that differing degrees of interference with community or social activities might be documented. The Government party cites a series of reasons as to why it is unlikely that there would be substantial interference with the community and social activities of the native title party within the proposed tenement area on the basis of the evidence. Those reasons refer to:
1. The low impact and non-intrusive nature of the proposed exploration;
2. The willingness of the grantee party to enter into a RSHA type agreement;
3. The absence of any evidence to the effect that the grantee party will fail to comply with the requirements of the regulatory regime;
4. The extent of previous exploration activities within the area;
5. The extent of other interests in the area, including pastoral leases, general leases, private land and Crown reserves, and the significant amount of water irrigation infrastructure within the area;
6. The absence of Aboriginal communities within the proposed tenement area;
7. The unlikelihood of any real interference with hunting or fishing activities given the infrequent nature of exploration activities; and
8. The lack of overlap between the conduct of exploration activities and the conduct of ceremonial activities within the area.
Neither party has made any submissions as to the relevance of the timing of the conduct of the respective activities of the native title party and the proposed grantee party. In my understanding, it is commonly accepted that the conduct of ceremonial activities coincides with the wet season in the Kimberley region. Further, it is commonly accepted that the conduct of exploration activities by mining companies takes place during the dry season (see Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 at [37]). In Ms Milgin’s affidavit a number of activities that she has identified take place during the wet season. Without relying too heavily on this observation, it does seem to me that it gives an indication that there is likely to be periods of activity of the native title party during the wet season which are highly unlikely to intersect with any exploration activities by the grantee party during that season.
It is clear from the evidence of Ms Milgin that the native title party conducts significant social and community activities within the area of the proposed tenement. These include, in particular, fishing, gathering of bush medicine and other products, and hunting. Those activities appear to take place throughout the year, but intensify during the wet season. On the other hand, the area is criss-crossed with roads and access tracks and is used extensively for pastoral and irrigation activities. The grantee party has indicated a willingness to enter into a RSHA and to avoid the area the subject of the Registered Site over the Fitzroy River at the western end of the proposed tenement area entirely. On that basis, and in the context of my task to conduct a predictive assessment as to whether or not there is likely to be interference with those social and community activities, I am unable to come to the conclusion that interference is likely to occur.
Section 237(b) – sites of particular significance
In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) 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 AHA shows three Aboriginal sites and two Heritage Places within the proposed tenement, 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.
The evidence of Ms Milgin in relation to this limb of s 237 is contained in paras 26-42 of her affidavit. Ms Milgin deposes to the fact that the exploration area has ‘a lot of very important areas because Oongooboo (the Dreamtime Man) travelled up and down this country following the channels to the Fitzroy River ... Oongooboo travelled up and down the channels in the Exploration Licence Area until he reached a spot in the water where he used Majala to poison the water and stun the fish so he could catch them’ (at paras 26-27). Ms Milgin deposes that the area where this occurred is a very important area and that they go there often to fish. Ms Milgin, however, does not identify the location of that area within the proposed tenement. Ms Milgin deposes that Oongooboo left his fossils within the proposed tenement area, including fossils from his arm and two legs, an area where Oongooboo ‘was waiting for big fish’. Ms Milgin deposes to the fact that she has seen this site herself, and that it was shown to her and her siblings by her father (at para 28). Ms Milgin deposes that there are many songlines coming from the mouth of the Fitzroy River to the Koorabay. Ms Milgin then states ‘[t]he Exploration Licence Area is in this area and the songs from this country talk about the different animals and fish’ (at para 29). It is not clear from that statement whether what is being said is that the proposed tenement area is within the area between the mouth of the Fitzroy and Koorabay, or within the area of Koorabay. In any event, the location of Koorabay is not identified (at para 29). Ms Milgin deposes to the fact that the Nyikina Mangala people carry the stories of Oongooboo and his law. If the stories are not passed on to their children, it will break the spirits of their ancestors (Liyan). If the songlines and their culture are not looked after, the Rai will go away to another place and not come back (at para 30-32). Ms Milgin deposes that the area of the proposed tenement is used for law and ceremony during the wet season in December, but it is dependent on the age of the boys. Ms Milgin indicates that these ceremonies involve camping for a few days and people stay up all night to dance and sing (at paras 33-34). Ms Milgin indicates that men and women have separate business and that she cannot talk about men’s business. Ms Milgin suggests that if exploration was to take place within the area of the proposed tenement, they would have to do their ceremony somewhere else because it was private (at para 36). She notes further that if the ceremony is not done at the right time it would be interfering with the Dreamtime stories and would have a significant effect. She deposes to the fact that she has responsibility to look after the sites within the proposed tenement area and that that has been passed on to her by the old people and that she must pass it on to her children. If places are damaged, then the Nyikina Mangala people will feel sad and worried (at para 39), and it is dangerous to travel in the country without proper ceremony something bad is likely to happen to people, like the grantee party, if they do (at para 40). Ms Milgin concludes by saying that their law and culture require that anyone who wants to go onto their country must come and see the traditional owners first and go through a welcoming ceremony. If an exploration company was to conduct its activities on the area, traditional owners would need to monitor those activities in order to ensure that the grantee party abided by their rules. If this is done, the grantee party won’t get sick (at paras 41-42).
On the basis of that evidence, the native title party asserts in its contentions that the area of the proposed tenement is ‘site rich’ and consequently, in the absence of evidence from the grantee party as to how they would avoid damage, there should be a presumption that the relevant interference is likely (see paras 18-19 of the native title party contentions). After some discussion about the adequacy of the protective regime in Western Australia, the native title party identifies, at para 29 of their contentions, that the areas referred to in paras 26-29 and 36-37 of Ms Milgin’s affidavit are all areas of particular significance and importance to the native title party. As has been outlined above, in para 26 Ms Milgin refers to the travels of Oongooboo up and down the channels of the Fitzroy River. In para 27, Ms Milgin refers to the spot where Oongooboo used Majala to poison and stun the fish, and in para 28 Ms Milgin discusses the area where Oongooboo left the fossils. In para 29, Ms Milgin discusses the many songlines from the mouth of the Fitzroy River right through to Koorabay. In para 36, Ms Milgin asserts that if exploration was allowed in the area of the proposed tenement they would have to move their ceremony elsewhere, and in para 37, Ms Milgin suggests that if ceremony isn’t done at the right time it would lead to interference with the Dreamtime story, which would be significant. It seems to me from the evidence, apart from the assertion, that there are dreaming tracks crossing throughout the area of the proposed tenement, particularly along the Fitzroy River, and that Ms Milgin identifies two sites, being the place where Oongooboo used the Majala to stun the fish and the place where Oongooboo left his fossils (see paras 27-28). The references to paras 26 and 29 seem to make reference to songlines which pass through the Fitzroy River valley in general, and the references in paras 36 and 37 are to the consequences of interference with the conduct of ceremonial activity. None of these sites, either those referred to in paras 27 and 28, or the sites of the ceremonies referred to in paras 36 and 37, are identified. The location of any of the dreaming tracks is not provided in the evidence.
As has been referred to in [16] above, there are three Registered Sites and two Heritage Places. According to the maps provided by Department of Mines and Petroleum, the Fitzroy River Site (ID 12687) appears to run along the main channel of the Fitzroy River, which passes roughly from east to west along the southern boundary of the proposed tenement area. It is unclear from those maps provided exactly where the other two Registered Sites and two Heritage Places are located, but it would appear that they are located in the area marked on the map at the western end of the proposed tenement, which effectively takes up some 15-20 per cent of the total proposed tenement area. It is not clear to me that any of these sites are the same as the sites identified in the affidavit of Ms Milgin. The Walangari Site, ID 13185, and the Walangari Heritage Place, ID 13186, which are described as ceremonial closed access, may in fact be the locations at which the ceremonial activity deposed to in Ms Milgin’s affidavit takes place. Although it is somewhat unclear, I am prepared to assume that those activities do take place at the Registered Walangari Site, ID 13185, and Walangari Camp Heritage Place, ID 13186, as they are both noted as being closed access for ceremonial purposes or ceremonial camp.
The native title party, in its contentions, argues that the area is site rich, citing the three Registered Sites and two Heritage Places within the proposed tenement area, and contend that in the absence of evidence from the grantee party, the presumption should be that the relevant interference is likely to occur (see paras 18-19). They further contend that what constitutes interference may be different for different native title holders and should be assessed by reference to laws and customs of the particular native title holders (see para 28). I agree with the proposition that what constitutes interference with the sites of particular significance of any particular native title group may well be different from any other group and should be assessed on the basis of the evidence before the Tribunal. The native title party makes submissions in relation to the efficacy of the AHA in Western Australia, and in particular notes the difference between the definition of an area that the AHA applies as being more restrictive than in the terms of s 237(b) of the Act. I have recently addressed the different purpose of the protection mechanisms within the AHA and the legislative purpose of s 237, particularly s 237(b), see Les Tullock and Another on behalf of Tarlpa/Western Australia/Dukeden Consolidated Pty Ltd [2011] NNTTA 124 at [28], where the point was made that s 237(b) did not provide a regime of protection for sites of particular significance. The native title party submits that the definition of an area which is afforded protection under the AHA is more restrictive than the terms of s 237(b) of the Act. That is an assertion which cannot be accepted. Section 237(b) refers to sites of particular significance to the native title party. Section 5 of the AHA affords s 17 protection to a much wider range of places than those which are defined as sites of particular significance to Aboriginal people:
‘This Act applies to —
(a)any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
(b)any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;
(c)any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;
(d)any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.’
Section 6 of the AHA sets out additional protections which are afforded to objects which are found within the State and are of sacred, ritual or ceremonial significance to people of Aboriginal descent. The native title party in its contentions seeks to make the point that in order to fall within s 5(c) of the AHA, the place needs to be of importance or significance to the cultural heritage of the State, whereas the relevant factor of s 237(b) of the Act relates to the site’s particular significance to the native title party. That submission does not consider the fact that s 5 is a provision which identifies four separate types of site or object to which the AHA applies. The matters referred to in s 5(c) are alone to be judged in light of the significance of their cultural heritage to the State. The native title party also contends that ‘[t]he criteria for the activation of the offence provisions in the Aboriginal Heritage Act, as contained in section 17 of that Act, are different from the test of interference to sites of particular importance under section 237(b) of the NTA’ (at para 23). They cite the a previous Tribunal decision by DP Sosso, the correct citation for which is Young v Western Australia and Another (2001) 164 FLR 1; [2001] NNTTA 42 (‘Young’) at [36]. In that matter, the question discussed by DP Sosso related to whether or not it was true that the registration of a site under the AHA necessarily led to the conclusion that it was a site of particular significance:
‘The criteria for the activation of the provisions of the Aboriginal Heritage Act 1972 are different in many respects to the test of “particular significance” under section 237(b). Whilst in many instances a place or site that sections 5 or 6 applies to would be of ongoing significance to native title holders (however compare s6(2)), that of itself would not meet the test of particular significance mandated by Parliament. Moreover both sections cover places and objects which were of significance to Aboriginal People, even though they may no longer be – sections5(c) and 6(1).’
The inference that can be drawn from Young is that while a site of particular significance to a native title party may not be registered, it is almost impossible to conceive that a site of particular significance to a native title party could not also be a site to which ss 5 and 6 applied and therefore subject to the protections contained in s 17 of the AHA. It is arguable that the nature of the interference to a site contemplated by s 237(b) of the Act may be wider than that protected by s 17 (particularly s 17(a)) of the AHA. The native title party asserts the mere presence of the grantee party may amount to interference (native title party contentions para 24) but that will depend on the evidence in the matter. The evidence in this matter is that the presence of strangers on the country will impact the spiritual beings who live in it, but that evidence is not tied to any specific site of particular significanc.
The question of the status of a Dreaming track may be somewhat more problematic. Neither the language of the AHA nor the Act makes reference to Dreaming tracks. The common language relates to sites. The Tribunal has found that Dreaming tracks can be regarded as sites of particular significance for the purpose of s 237(b) although that will depend on the evidence presented in any particular case (see Freddie and Others v Western Australia and Another (2007) 213 FLR 247; [2007] NNTTA 37 at [44]-[47]). Further, I note the distinction between areas of general spiritual significance and areas of specific significance as referred to in my recent decision WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 at [39]. The native title party asserts that the provisions of the AHA will not be sufficient to protect the sites of particular significance that it says have been identified because of ‘[t]he complex nature and number of sites and areas of particular significance within and around the tenement’ (see para 27).
The State argues in its contentions that the native title party has not provided evidence of the existence of any site of particular significance in the area of the proposed tenement. They say the areas or sites which are described by Ms Milgin in her affidavit are largely confined to evidence of ‘many songlines’ and the assertion that there are ‘a lot of very important areas’ in the proposed tenement area (see Government party contentions paras 68 and 70). The Government party rejects the assertion by the native title party in its contentions that the area is site rich (native title party contentions at para 19), and adds that in their view the term ‘site rich’ is of no forensic value to the Tribunal (Government party contentions at para 69). The Tribunal has in the past used the term site rich. In Wilma Freddie/Western Australia/Stephen Grant Povey [2001] NNTTA 162, Member Stuckey-Clarke observed at [49]:
‘The area of the proposed tenement has been shown to be extremely site-rich: see Re Mirriuwungand Gajerrong Peoples (1996) 128 FLR 90. In these circumstances, it is incumbent upon the grantee to lead some evidence upon the basis of which the Tribunal might be assured that interference, intentional or otherwise, is not likely given the practical difficulties associated with avoiding interference with sites in extremely site rich areas.’
In that determination, Member Stuckey-Clarke had recognised that in the context of s 237(b), the view of Carr J in Cheinmora v Striker Resources NL and Others (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora’) at [34]-[35] to the effect that the word particular in s 237(b) meant that the site was to be of special or more than ordinary significance to the native title holder in accordance with their traditions. In the passage cited from Cheinmora, Carr J also makes reference to the fact that there is no reason why there shouldn’t be more than one such site in any relevant area, and that in such circumstances where there are several sites of particular significance ‘the Tribunal will have to make its own factual assessment of that matter’. Further, Member Stuckey-Clarke accepted for the purpose of her decision the correctness of the view adopted by Deputy President Franklin in Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 to the effect that the particularity of the significance of areas or sites must be capable of identification and established by the evidence of the native title party. Further, in Dora Sharpe and Others and Ashburton Minerals and Ripplesea Pty Ltd and WA [2004] NNTTA 31 at [43] I came to the conclusion that on the basis of the evidence in that matter the area was site rich ‘although not all of those sites have been shown to be of particular significance’. On that basis, I concluded that in the absence of any evidence from the grantee party regarding its proposed intentions relating to the protection of sites of significance, I accepted that there was a potential of a real risk of inadvertent interference with those sites (see [44]).
The first question raised by the above matters is whether, on the evidence, there are any sites which could be properly characterised as sites of particular significance to the native title party in accordance with its traditions. There can be no suggestion that the existence of a significant number of sites which do not individually have the requisite level of particular or special significance to the native title party according to its traditions can become an additional ‘cumulative’ category of sites of particular significance which might be conveyed by the term site rich. In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstance, in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely. On that point, I accept the Government party’s contention that the use of the term ‘site rich’ is of no value to the Tribunal in the exercise of its predictive assessment.
On the basis of the evidence provided by the native title party in this matter, I am unable to reach a conclusion that there are any sites of particular significance in this area. The evidence does not specifically identify the locations of any sites within the proposed tenement area or the reasons why those places are of more than ordinary significance to the native title party. Similarly, the evidence in relation to the dreaming tracks or songlines is vague and imprecise. I contrast the evidence of Ms Milgin with the detailed evidence provided in Nyikina & Mangala, where Ms Milgin’s father, Mr Darby Narngarin, Mr John Watson and Ms Aggie Puertollano gave evidence in relation to a tenement to the north of the proposed tenement, but which overlapped it to the extent of 31 per cent. The evidence of those witnesses was precise as to location, and detailed as to why places were of particular significance in accordance with the traditions of the native title party. That evidence has simply not been replicated in this matter. Some of the sites discussed in Nyikina & Mangala may be within the area of the proposed tenement but that is not at all clear. In Nyikina & Mangala, there were 11 sites then identified as being on the AHA Interim Register. Three of those sites, Liveringa Site ID 13184, Walangari Site ID 13185 and Walangari Camp Site ID 13186 are, as has been identified in [16] above, are within the proposed tenement area. However, as with the evidence of Ms Milgin in this matter, there is no evidence in Nyikina & Mangala which link any of the sites identified by the deponents to the three, now Registered Sites, which are common to the two tenement areas.
I recognise that there are Registered Sites and Places within the area. These are clearly marked on the DIA mapping provided by the Government party and the grantee party is on notice of its obligations in relation to those matters. Further, as has been previously noted, the grantee party has indicated that it will not conduct any activities on the site associated with the Fitzroy River in the south western corner of the proposed tenement area.
As I have been unable to conclude that there are sites of significance within the proposed tenement area it is not necessary to further consider the Government party’s protective regulatory regime.
Section 237(c) – land or waters
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 evidence of Ms Milgin in relation to s 237(c) relates to her general concern that mining companies may clear trees which the Nyikina and Mangala People use for bush medicine. She states that they had to advise another mining company that it was important that the trees, called Malagei, which grow near the river and everywhere, are protected. They are important because they are the home of Rai, who is the spirit who will do bad things to people, and Balangan, who are little spirits which live in the land, but in different trees like boab trees. She also makes references in para 46 to damage which has occurred in other areas of the Kimberley, including in Argyle, where the Barramundi Dreaming was damaged.
The native title party contends that there is likely to be major disturbance to the lands or waters. They contend that while the expression major disturbance must be given its ordinary English meaning, and considered from the viewpoint of the community generally, the Tribunal must be aware of cultural differences and take account of Aboriginal perspectives on major disturbance, see Dann v State of Western Australia and Another (1997) 144 ALR 1; [1997] FCA 332. They contend that the extent of the rights granted under an exploration licence pursuant to the Mining Act permits the holder to undertake a range of activities which are likely to create major disturbance, including drilling, the excavation of up to a thousand tonnes of material, the creation of tracks and the excavation of minerals and earth. The grant of the tenement in circumstances where the area of the proposed tenement is of such significance to local Aboriginal people amounts to a violation of their obligation to look after strangers in their country and consequently is likely to cause major disturbance (see para 36 of the native title party’s contentions). They assert that under Nyikina Mangala law, anyone who comes onto the proposed tenement area must seek permission of the traditional owners before entering and they must follow Nyikina Mangala law and custom. The native title party also contends that there is a burial ground on or near the proposed tenement area. The Government party contends that the mere fact that strangers enter the country of the native title party without going through the particular process they prefer does not amount to major disturbance (see Government party contentions para 101). Similarly they contend that there is no legal basis for the native title party’s assertion that permission is a requirement before any party can enter their country. Further, they contend that the grantee party’s contentions, particularly at paras 12-14, make it clear that most of the exploration activities will be low impact and non intrusive, that the grantee party will respect heritage sites and local Aboriginal concerns and has indicated a willingness to use existing roads and not conduct activities in relation to registered sites adjacent to the Fitzroy River.
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration 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 activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that 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 v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 at [75]-[79] and the cases cited therein).
On the basis of the evidence before me, I am unable to conclude that the grant of the proposed tenement is likely to involve major disturbance to the land or create rights the exercise of which is likely to involve major disturbance to the land.
Determination
The determination of the Tribunal is that the grant of exploration licence E04/2015 to Geotech International Pty Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
14 March 2012
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