Daisy Lungunan and Others on behalf of the Nyikina and Mangala People/Karajarri Traditional Lands Association (Aboriginal Corporation)Western Australia/Geotech International Pty Ltd

[2013] NNTTA 129

NATIONAL NATIVE TITLE TRIBUNAL

Daisy Lungunan and Others on behalf of the Nyikina and Mangala People/Karajarri Traditional Lands Association (Aboriginal Corporation)Western Australia/Geotech International Pty Ltd [2013] NNTTA 129 (3 September 2013)

Application Nos:             WO2012/0457, WO2012/0478

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Daisy Lungunan and Others on behalf of the Nyikina and Mangala People (WC1999/025) (Nyikina and Mangala native title party)

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Karajarri Traditional Lands Association (Aboriginal Corporation) (WCD2001/001) (Karajarri native title party)

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The State of Western Australia (Government party)

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Geotech International Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member

Place:  Perth
Date:  3 September 2013

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted

Legislation:  Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Environmental Protection Act 1986 (WA)

Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Mining Act 1978 (WA), s 111

Native Title Act 1993 (Cth), ss 29, 31, 32(4), 151(2), 237

Cases:Butcher Cherel and Others on behalf of Gooniyandi Native Title Claimants/Western Australia/Faustas Nominees Pty Ltd (2007) NNTTA 15 (‘Faustas’)

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

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243, (‘Little’)

Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)

Raymond Ashwin & Ors on behalf of Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd, [2013] NNTTA 44, (‘Raymond Ashwin’)

Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas’)

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

Smith on behalf of the Gnaala Karla Booja People v Western Australia (2001) 108 FCR 442; [2001] FCA 19, (‘Smith’)

Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’)

Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72, (‘Geotech’)

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)

Wilma Freddie and Ors on behalf of the Wiluna native title claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17, ('Emergent')

Representative of the      Ms Danica Trewern, Kimberley Land Council
native title party              Ms Barbra Friedewald, Kimberley Land Council

Representatives of the     Ms Bethany Conway, Department of Mines and Petroleum

Government party          Mr Trevor Creewel, State Solicitor’s Office

Representative of the      Mr Paul Askins, Geotech International Pty Ltd
grantee party                   

REASONS FOR DETERMINATION

1. The Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2153 (‘the proposed licence’/'exploration licence area') to Geotech International Pty Ltd, specifying the notification day as 25 January 2012. In the notice, the Government party included a statement that it considered the grant attracted the expedited procedure (that is, the grant could occur without the normal negotiations required by s 31 of the Act).

2. According to the notice:

   ·the proposed licence is approximately 648.3 square kilometres.

   ·the proposed licence is located 148 kilometres south east of Broome.

   ·the grant of the proposed licence would authorise the applicant to explore for minerals for a term of 5 years from the date of grant.

   ·the native title party had until four months from the notification day  to lodge an objection application against the expedited procedure statement for the proposed licence.

3. On 25 May 2012, objection applications were lodged with the Tribunal by Daisy Lungunan and Others on behalf of Nyikina and Mangala, and by the Karajarri Traditional Lands Association (Aboriginal Corporation).  The objections were accepted on 20 June 2012 and 6 July 2012 respectively.

4. The Nyikina and Mangala native title claim (WAD6099/1998; WC1999/025 - registered from 28 September 1999), (‘the Nyikina and Mangala native title party’), overlaps the proposed licence by 76.31 per cent. The Karajarri native title determination (WAD6100/1998, WCD2001/001), (‘the Karajarri native title party’), overlaps the proposed licence by 23.69 per cent.  I will also refer collectively to both groups as 'the native title parties' where appropriate.

5. The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted.  These directions allowed a period after the closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.

6. Directions were amended as parties attempted to reach agreement, but they were ultimately unable to do so. A number of conferences were held between July 2012 and March 2013 and at the listing hearing on 30 May 2013, parties agreed the matter proceed to inquiry.

7. In compliance with directions, the following were provided to the Tribunal and other parties:

(a)On 23 November 2012, DMP provided the following documents on behalf of the Government party:

(i)A Tengraph Plan with topographical detail, tenement boundaries, historical land tenure, Aboriginal communities;

(ii)A Report and Plan from the Department of Indigenous Affairs (‘DIA’) Register (now the Department of Aboriginal Affairs Register);

(iii)A copy of the Tenement Application and proposed endorsements/conditions of grant;

(iv)The Instrument of Licence and first schedule, listing land excluded from the grant; and

(v)The Tengraph Quick Appraisal detailing various tenures within and overlapping the boundaries of the tenement, details of s 29 notices for affected tenements, details of prior mining tenements available from the Tengraph database and details of Aboriginal communities.

(b)On 12 April 2013, the Nyikina and Mangala native title party and the Karajarri native title party provided an identical statement of contentions with:

(i)A copy of an article regarding the Yiriman Project;

(ii)An extract of the Register of Aboriginal Sites from DIA; and

(vi)An affidavit of Mr John Watson, affirmed on an unspecified date.

(c)On 22 April 2013, the grantee party provided a statement of contentions.

(d)On 14 May 2013, the State Solicitor’s Office provided the Government party’s statement of contentions in response to the native title party, with the following:

(i)Annexure 1: a map of the proposed tenement;

(ii)Annexure 2: the Tengraph Quick Appraisal Form; and

(iii)Annexure 3: DIA Aboriginal Heritage Inquiry System Results.

1. On 20 June 2013, the Tribunal provided parties with a copy of a map, prepared by the Tribunal’s geospatial services, to be used for the purpose of this inquiry. No objections were received in response. The map shows the proposed licence and relevant surrounding features such as DIA sites, registered claim areas and the underlying tenure and topography.

2. On 26 August 2013, I was appointed by President Webb as the Member for the purpose of conducting the inquiry.

3. Section 151(2) of the Act provided that the Tribunal may proceed to determine a matter ‘on the papers’ (that is, without a hearing) unless the issues for determination cannot be adequately determined in the absence of the parties. I have considered the documents and material provided by parties, and I am satisfied that this matter can be determined in this way.

Legal principles

1. Section 237 of the Act provides:

   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. The legal principles outlined by Deputy President Sumner, in relation to s 237 of the Act, in Walley (at [7]–[23]) are adopted for the purpose of this determination (by way of the operation of s 146 of the Act).

3. In relation to the nature of an exploration licence, I adopt the principles outlined in Tarlpa at [10]-[15].

4. In relation to s 237(a), in addition to the principles outlined in Walley, I note that evidence about community or social activities which is general and unspecified in nature will not be sufficient for a finding that interference is substantial and not trivial (see Asia Investment Corporation at [14]). I also adopt the definitions of ‘interfere directly’ and ‘carrying on’ from Tarlpa, as applied to s 237(a), (at [105]-[109]).

5. In relation to s 237(b), I adopt the principles outlined in Maitland Parker at [31]–[38], [40]-[41], recently endorsed in Raymond Ashwin at [16].

6. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Smith at [23]). This involves an evaluative judgment on whether major disturbance to land and waters concerned is likely to occur, from the point of view of the Australian community, inclusive of the Aboriginal community, as well as considering the concerns of the native title party (Little at [41]-[57]).

Evidence in relation to the proposed act

1. In its submissions of 23 November 2012, the Government party outlined that the underlying tenure for the proposed licence consists of:

   ·Pastoral Lease (Dampier Downs) overlapping at 15.6 per cent;

   ·Vacant Crown Land overlapping at 84.4 per cent;

   ·Petroleum Exploration Permits EP431 overlapping at 40.9 per cent and EP391 R2 overlapping at 13.7 per cent.

2. The quick appraisal also shows that 84.3 per cent of the proposed licence is designated as File Notation Area FNA/8723 and is managed by the Department of Environment and Conservation.

3. The quick appraisal indicates that the proposed licence area has previously been subject to: 13 exploration licences granted between 1987 and 2009 and surrendered or withdrawn between 1989 and 2010, overlapping at between 62.5 and 1 per cent; one prospecting licence granted and surrendered in 1991, overlapping at less than 0.1 per cent; and one temporary reserve granted in 1919 and cancelled in 1921, which covered the entire area of the proposed licence. In addition, services affected on the proposed licence included nine non-perennial major watercourses and 99 non-perennial minor watercourses.

4. The report from the DIA Register establishes that there are no registered sites or ‘other heritage places’ within the proposed licence. There does not appear, from the Government party’s documents or Tribunal mapping, to be any Aboriginal communities within the proposed licence or the surrounding area.

5. The Draft Tenement Endorsement and Conditions Extract indicates that the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Tarlpa at [11]-[12]). The proposed licence will also be subject to two further conditions requiring the licensee to notify the holder of any underlying pastoral or grazing lease to be notified of the grant or transfer of the licence and of certain activities, and the following two conditions:

   7.  No interference with Geodetic Survey Station M 33 and mining with 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

   8.   No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.

6. The proposed licence will also be subject to the following endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached):

   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.

   3. The licencee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.

Native title party evidence

1. In support of its contentions the native title party provided the affidavit of Mr John Watson, at Annexure A to this decision.

2. The evidence of Mr Watson is uncontested and I accept it.  Mr Watson states that he is a named Applicant and one of the senior people for Nyikina and Mangala and under their law has authority to speak about land matters.  Mr Watson also states that he is the oldest person alive today for the Karajarri area and he is able to speak for Karajarri as his father came from that country. I accept that Mr Watson has authority to speak on behalf of both native title parties.

Grantee party evidence

1. In its statement of contentions, the grantee party outlined the planned first year of exploration:

   PROPOSED EXPLORATION METHOD

   For all minerals, especially phosphate rock, and excluding iron. The first phases of field work, after a review of past exploration work, are proposed to be non-ground-disturbing hand sampling of surface rock, soil/stream sediment. Non ground disturbing airborne surveying may be necessary. Maximum use will be made of appropriate remote sensing techniques.

   Follow up ground disturbing work if justified, such as drilling, will be done with appropriate consents.

   WORK PROGRAM and EXPENDITURE

   Proposed in first year, $200 000, (inclusive of Heritage Surveys, administration and statutory costs), as follows:

   1.compile all past mineral exploration data and geological mapping and geochemical sampling. $10 000

   2.purchase and interpret magnetic, gravity and other geophysical data. $10 000

   3.regolith studies utilizing remote satellite imagery including ASTER. $15 000

   4.reconnaissance rock chip, soil and stream sediment sampling. $40 000

   5.geological mapping, airphoto interpretation. $30 000

   6.detailed surface sampling of rock and alluvium. $40 000

   7.bulk sampling and metallurgical testing. $45 000

   8.marketing studies. $10 000

Note that the proposed bulk sampling under point 7 is not an exercise involving ground disturbance. It would be based on hand collection with a shovel or hand auger of perhaps 50kg of material, i.e. a few cement bag sized bags.
The second year program would be formulated based on the results of target generation in the first year, and if justified could possibly include exploratory drilling. Any drilling would normally require a heritage survey and site clearance.

Section 237(a) Community and Social Activities

1. The evidence of Mr Watson is to the effect that the area in and around the tenement is of such significance to the native title parties that they have purchased ­­Mowla Bluff Lease in order to be close to that country. The lease itself covers a small proportion of the proposed licence area at its northern end (at 9-10). The native title party’s contentions (at 16f), assert that members of the native title parties have taken commercial actions to secure access to the exploration licence area by purchasing the Mowla Bluff lease and seek to characterise that as a social or communal activity for the purposes of 237(a) of the Act (see also 9, 10 and 39, Watson affidavit).

2. Mr Watson describes how Nyikina and Mangala and Karajarri people have walked, camped and lived all over the exploration area, that it is rough country and that the best way to get there now is to walk in from air strip near Mowla Bluff (at 12-15). Mr Watson also describes how he takes young people from his community who are ‘not leading healthy and lawful lives’ in groups out onto the exploration area in order to live close to the country and develop skills so that they might have work opportunities in the future (at 16-17). Mr Watson says that he has been involved in that project, the Yiriman Project, since 1999 and he takes boys out for around 3 weeks at a time, though he indicates that last year they were unable to get out there due to a fire. They plan to go out this year but must go during the dry season, as during the wet season the grass is too high (at 20-21).

3. Mr Watson describes how the native title parties take young people out through Yerramin which is between Scorpion Hills (Brugbrumon) and Babrongon Tower (at 22). He proceeds to describe how they work with the boys and teach them about their family history and the country in the exploration licence area. They need to know where the water holes are in the exploration licence area and how to live in the area self sufficiently (at 23-24). Mr Watson also describes how they do not talk about sacred things and he says they need to know about these places because this is where their grandmothers and grandfathers came from (at 25). While they are out there, they collect bush tucker and hunt for emu and turkey in the rough country (at 26). Mr Watson also describes Bandal, which is on the eastern edge of the tenement, as a place where people used to live and camp (its alternative name is Illarano) and he states a lot of people used to live there, walking down Geegully Creek and camp there. There is also a place called Jabiya or Blue Hole pool which sits in a pocket of the hill (at 26-27). Mr Watson has marked another area on the map which is near where the ‘massacre happened’. Mr Watson further indicates that he would like to take young people out to the exploration licence area for camping, this time to a place called Yilbe.

4. It should be noted that Scorpion Hills and Babrongon Tower are outside and to the west of the tenement area, by approximately 10-15 kilometres. Similarly the areas marked by Mr Watson on the map attached to the affidavit itself are in fact outside the tenement area. The area of the ‘massacre’ which is referred to, is stated (at 34) as being near Geegully River and Goorda Tower at a place called Geardiyanbulbul. These areas are within a kilometre or so of the boundary of the proposed licence.

5. Native title party contentions argue that s 237(a) should apply because, amongst other things, the native title party has demonstrated they ‘belong to the country’ within the tenement, live on the tenement, ‘conduct their community’ on the tenement, conduct aspects of their community, and live on the tenement area (at 13a-b, 16a-b).

1. Community and social activities are activities which must be a manifestation of the claimed native title rights and interests of the native title party. Social activities must be grounded in the traditional laws and customs of the native title party (see Silver at 58). In my opinion, taking commercial action to secure access to an exploration licence area by purchasing the area or an area adjacent to it cannot be characterised as a social or community activity for the purposes of s 237(a). It may be that, as a result of that purchase, increased activity of a social or communal nature may be able to take place on the land in question, and that will be the matter for the Tribunal’s consideration, not the purchase itself.

2. In any event, in these particular circumstances, it is not clear to me that the purchase of Mowla Bluff was designed to secure access to the exploration licence area. No doubt it was designed to secure access to the area of the lease itself and the surrounding areas, but I do not think it can be considered as having been taken purely for the purpose of gaining access to the exploration licence area.

3. The evidence of the native title parties social and communal activities on the proposed licence and the area within the associated Mowla Bluff lease essentially relates to the activities that Mr Watson and other senior members of the native title parties undertake with younger people from the native title party group, pursuant to the Yiriman project. Those activities seem to occur on an annual basis, although as indicated (at 21 of the affidavit) it did not take place last year. It is clear that Mr Watson, his ancestors and other senior members of the native title party have conducted community activities including hunting, camping and ceremonial activities in the past. However, his affidavit provides no evidence of contemporary activity other than which is related to the Yiriman project. He does indicate an intention this year to take young people to Yilde, which may be a project outside the parameters of the Yiriman Project, but the location is outside the boundaries of the proposed licence.

4. I would add that I think that it is reasonable to infer from the evidence of Mr Watson that a great deal of the activity undertaken pursuant to the Yiriman Project takes place on the Mowla Bluff lease or parts of it, which are outside the proposed licence.

5. When considering the likelihood of interference to social and community activities of the native title party by the grant of a proposed licence, the Tribunal is entitled to take into account the context in which the activity takes place, including other activities which occur on the land and the stated intentions of the grantee party (see Tarlpa at 122). In this case, the balance of the land is unallocated crown land which, as Mr Watson has indicated, is rugged, remote and difficult to reach. In those circumstances, it seems to me that it is reasonable to conclude there are unlikely to be any other regular activities carried out in the area other than those by native title parties or previous holders of mining or exploration tenements (see Faustas at [59]-[60]).

6. The grantee party contentions indicate that it acknowledges the importance of the ‘ranges area’ to the native title parties and indicate they have no desire to adversely impact upon the life of the community or their ability to enjoy their environment and use it for teaching purposes. The grantee party states ‘in fact Geotech, when operating in the area would like to cooperate with such activities and would keep the communities informed of proposed exploration work. Seeking permission to enter the area would be sought from the community so long as that did not result in an effective veto to carry out exploration’. That is a similar position to the one adopted by the company in Faustas (at [60]).

7. Given that the native title parties activities on the land are intermittent and seasonal, and the willingness of the grantee party to consult with the native title party with a view to avoiding the exploration activities of the grantee party interfering with the social and community activities of the native title parties, it is my opinion that it is unlikely that the grant of the proposed licence would interfere with the conduct of those social and community activities on the area of the proposed licence. Consequently I find that s 237(a) is not attracted.

Section 237(b) Sites of Particular Significance

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there are no registered DIA sites or other heritage sites within the proposed licence area. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.

2. In his affidavit, Mr Watson identifies a number of areas which he says are of particular significance to the native title party. The first such area is the area which is described by Mr Watson as being ‘along the border’ of the exploration licence area where a massacre is said to have occurred. That massacre occurred near a place called Geardiyanbulbul near the Geegully River and Goorda Tower (‘on the very edge of the tenement’) (at 32-33). The massacre is said to have occurred in 1916 and Mr Watson says he knows all the stories about it from his mother and father, including the story of Yamadu, who witnessed the massacre (at 39-43). Mr Watson also asserts that part of the reason for buying the station (Mowla Bluff) was so that they could be close to the area where these events occurred.

3. Mr Watson identifies other sites including artefact scatters and stone axes close to Near Hill in the northern part of the proposed licence and also artefacts which were found near Blue Hole (at 44). Mr Watson also indicates that they have ‘found paintings in the tenement area’ (at 45). Mr Watson describes how there is a dreaming story near Near Hill in the north of the exploration licence, it being the story of the Blue Tongue lizard (at 46). Mr Watson identifies that there is a law ceremony area at a place called Jilarjuddi on the ‘western edge’ of the exploration licence area. He asserts that ‘this is a special place for me’ (at 48). Mr Watson indicates that none of these areas are marked and the explorer would not know where they were unless they had consulted with the native title party (at 46).

4. The area of the massacre is clearly outside the proposed licence area, although in telling the story, Mr Watson makes reference to Yamadu, his son and wife who were camped on a hill in the exploration area overlooking the area of the massacre and that after the massacre Yamadu ‘snuck away and disappeared’ into the proposed licence area (at 40-41).

5. Native title party contentions assert (at 28) that by inference all of these sites referred to above are sites of particular significance and that they are likely to be interfered with by virtue of the grant of the proposed licence. They further submit that what constitutes interference may be different for different native title holders and should be assessed in reference to the laws and customs of the particular native title holders. They then go on to particularise that by identifying the sites which they say are of particular significance to them, without making any reference to how the possibility of interference should be assessed in reference to the laws and customs of the native title party.

6. The Government party in its contentions (at 63) does not accept that the sites identified are sites of particular significance and also takes the view that there is considerable doubt as to the exact location of the Blue Hole Pool, the law ceremony ground – Jilarjuddi – and a number of other sites referred to in the context of s 237(b). The Government party also submits that the site of the massacre and the site of Yilde lie outside the proposed licence area. It further submits that there is nothing in the material provided by Mr Watson which indicates why the areas which are clearly located on the area of the proposed licence are of particular significance (such as the artefact scatters and the dreaming story in the north of the tenement near Near Hill), and no reason is given for asserting those areas are sites of any greater significance to the native title parties than other sites within the country. The Government party makes the general distinction between the dreaming tracks and the particular significance of sites associated with specific activities of mythic beings. In his affidavit, Mr Watson says only that the dreaming track crosses the tenement near Near Hill and is associated with the story of the Blue Tongue lizard and two boys.

7. Having considered the evidence and contentions in this matter, it is my conclusion that the site of the massacre at or near Geardiyanbulbul is a site of particular significance to the native title party but it is not located in the area of the proposed licence. The artefact area described as being near Near Hill is located in the proposed licence area, but there is nothing in the evidence of Mr Watson as to why it would be a site of particular significance to the native title parties. There is no evidence to suggest that it is a site any more significant than any other site of a similar nature might be to the native title parties. The same holds true for the artefacts found near Blue Hole. In relation to the paintings which were said to have been found in the area, I am unable to conclude whether they provide a site of significance because there is no further information other than the assertion that such paintings exist in the area. In those circumstances there are insufficient details for the Tribunal to be able to conclude whether such sites would be significant or indeed where they would be located.

8. The site of the ceremonial ground of Mr Watson’s father at the place called Jilarjuddi, on the western edge of the exploration area is said by Mr Watson to be special for him, and on that basis I am prepared to conclude that it is a site of particular significance to the native title parties given his standing. However, I am unable to conclude with any certainty that that area described as being ‘on the western edge of the exploration licence area’ is in it or not in it. It is clear that the dreaming story associated with the Blue Tongue lizard and the two boys does cross the exploration area in its northern extension. As has been indicated, the Tribunal will make a distinction between an area of general significance to a native title party such as a dreaming track or a song line and an area of particular significance which might form part of that dreaming track or song line, where particular specific activities of mythic beings took place which engender the site with a significance above and beyond the significance of the areas that surround it (see Emergent at [39]). Mr Watson notes that there is a story which young people are taught about in relation to that matter by Yiriman and that it is a special place, but there is no further detail as to its significance.

9. In these circumstances, as I have found that there are no sites of particular significance to the native title parties actually within the area of the proposed licence area, it is unnecessary for me to consider the question of any likely interference with those. However, I do note that the grantee party has indicated that as a result of this process, it is now aware of the existence of the sites which have been described by Mr Watson in his affidavit and also aware of the significance of the area to the ‘Aboriginal community’. As outlined above, the grantee party intend to cooperate with the community and will seek permission to enter the area from the community so long as no veto is exercised over the carrying out of exploration. The grantee party also specifically indicates that although it recognises the massacre site as being outside the licence area, it would ‘act with appropriate sensitivity in nearby areas in its tenement’.

10. Similarly, in relation to the law ceremony area, the grantee party has indicated that it would act with appropriate sensitivity when exploring nearby areas. The grantee party has also indicated that any areas of artefacts or paintings will be treated in accordance with the AHA and, if there was an RSHA, in accordance with that. It would also treat the area of the proposed licence crossed by the dreaming track with sensitivity to recognise the ‘importance of such story lines’. This is a matter which in many ways reflects the difficult task confronted by the Tribunal when it comes to carry out its predictive assessment as to the likelihood of interference with the native title parties’ way of life, when determining whether objections under s 237 should be upheld.

11. There is no capacity for the Tribunal to impose conditions upon the parties which would mitigate the risk of interference occurring. All it can do is make an assessment as to whether that risk is likely or not in the circumstances of a particular case. In this matter, I have come to the view that in the whole of the circumstances and based on the evidence, including the attitude of the grantee party, that it is not likely interference will occur in these circumstances. It would seem in these circumstances to be common sense that a native title party and a grantee party consult with one another before and during the conduct of the exploration activities on the area of the proposed licence.

12. I am unable to conclude that there are any sites of particular significance in the area of the proposed licence, and as such I find there is no real risk of interference with sites of particular significance for the purposes of s 237(b) of the Act.

Section 237(c) Major Interference with Land or Waters

1. It is well established that the starting point and precondition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas at [84]). It has been noted on many occasions by the Tribunal that s 237(c) relates to significant, direct physical disturbance of land or waters. Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance (see Geotech at [44]). In support of s 237(c) disturbance, the native title parties make broad contentions about places which are ‘so significant to the local Aboriginal community, unchecked persons and activities may disturb the ecological and environmental balance which the Native Title Party relies on for the hunting, gathering and teaching opportunities it provides’ (at 35).

2. In particular they state that exploration may damage the massacre site referred to in Mr Watson’s affidavit, and it may also damage artefacts and affect fresh springs. While I do note that Government party evidence shows there are a great number of perennial and non-perennial springs and waterways on the proposed licence, there is no evidence provided by the native title party of significant direct, physical disturbance of land or waters on the proposed licence.

3. In the absence of such evidence, I do not find that major disturbance to land or waters is likely to occur, as in envisioned by s 237(c) of the Act.

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2153 to Geotech International Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
3 September 2013

ANNEXURE A

AFFIDAVIT OF JOHN WATSON

‘I, John Watson, Cultural Advisor, of Jarlmadangah Community, in the State of Western Australia, affirm:

1.My name is John Watson. My Aboriginal name in Dadigar.

2.I was born on Mt Anderson Station in 1949.

3.I am a Named Applicant and one of the senior people for the Nyikina and Mangala Native Title Determination Application (WAD6099/98). Under our Law I have authority to speak about Nyikina and Mangala land matters.

4.I can speak for Karajarri too because my father came from that country, I am the oldest person alive today for the Karajarri area, I have an old sister at Bidgidanga and that is why I go out to Bididanga.

5.I know the area where Geotech International Pty Ltd, “the grantee party”, have applied for Exploration Licence Number E04/2153 “the exploration licence area”, very well, because I have been shown a map of the application area. The map I was shown in attached to this affidavit and marked “A”.

6.The exploration licence area falls partly within Nyikina and Mangala country and partly across Karajarri country. I can speak for both Nyikina and Mangala, Karajarri. Ngurrara and Yawaru country is also on the map, where old Dampier Downs is but the tenement is not in Ngurrara country.

7.The exploration licence area is part of the Edgar Range, is beside Twin Buttes, is over Scorpion Hill (Brabrugna), runs across Geegully River and reached almost all of the way to Mowla Bluff.

8.The explorer will have to use helicopter to get in there because it is on the ranges.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

9.I live at Jarlmadanga community which is not close to the tenement however in the mid 1990s we bought the Mowla Bluff lease so that we would be able to guarantee our community access to the area of the exploration licence area.

10.The purchase of the lease demonstrates how important the area of the exploration licence area is to our community.

11.The exploration licence area is not far from Dampier Downs it is only about 25kms in a straight line.

12.People still wandered around and camped and lived in the exploration license area after the massacre, discussed below, because there is good water and there is good hunting.

13.When I say ‘people walked through’ I mean they camped, lived, walked and used their cultural and traditional knowledge to survive all over the area.

14.The exploration licence area is in rough country.

15.There is an airstrip out near Mowla Bluff one way to get out to the exploration license area is to fly in and then you can walk into the area from there.

16.We often use the exploration license area for Yiriman Projects with our young people who are not leading healthy and lawful lives. We have also taken groups to the exploration license area for Bilby Research trips, to teach the young people how to interpret what their environment is telling them about the animals which live there and develop their skills so they might have work opportunities in their future.

17.Yiriman is an organisation which is for Nyikina Mangala, Karajarri and Walmajarri people and it aims to provide leadership, training and on country experiences for our young people. Some of the projects target young people who need real help to stay out of jail and lead a healthy lifestyle and other projects are about developing leadership and cultural understandings.

18.The first time we took young people out to the exploration license area as part of a Yiriman Project was around 1999. Myself and other community elders took some boys who were petrol sniffers out to camp and walk for 3 weeks to help straighten them out.

19.We have taken other groups of boys out there since then. Yiriman has funding to take young people out to the exploration license area.

20.We still use this place to take our young people out on country.

21.Last year there was money ear marked to take some young people out to the exploration license area but we could not get out there because a fire went through and then it was too hot. We cannot go out in the wet season as the grass is too high.

22.We take the young people out through Yerramin which is between Scorpion Hills (brugbrumon) and Babrongon Tower.

23.Out in the exploration license area we work with the boys to teach them about their family history and their family’s country.

24.It is important our young people know their country so they can use it properly, know their history, identify and experience places where their old people lived, know where significant events took place and people got knocked around. The young people need to know where the water holes are in the exploration license area and how to live in the area self sufficiently.

25.We believe it is important for our young people to know about Nyikina Mangala and Karajarri ways, about survival, their history and their country. We do not talk about sacred things; we talk about how the old people lived and teach them how to survive. The young people have to know the places they need to look after because their grandmothers and grandfathers come from there.

26.When we go out to the exploration licence area we get bush tucker along the way. Emu is very easy to catch in the tenement area because the emu and turkey’s have to climb into the rough country then they can’t get away as fast. Fresh water brings the good animals.

27.Bandal is on the east edge of the tenement. It is a place people use to camp and live there, it is called Illarano. A lot of people use to live there walking down the Geegully creek and camp. There is a place called Jabiya or Blue Hole pool which sits in a pocket of the hill.

28.There is another important place I have marked on the map which is near where the massacre happened and from that camp we walk in and around the exploration lisense area.

29.We use these places to camp when we walk with our young people.

30.There is money earmarked to take the young people to the exploration license area again this year. I would like to go out to Yilbe this year, there is plenty of fresh water out there. Yilbe is the stick to make the fire. This place is the black mark further east point of the tenement.

AREAS OR SITES OF PARTICULAR SIGNIFICANCE

31.I know the exploration licence area and the country around it very well. There are places in the tenement area that are important to the many people in our communities.

MASSACRE AND HISTORICAL COMMUNITY LIVING

32.There is a massacre site along the border of the exploration licence area. My wifes’ father’s mother who was called Wagarnine, and is also known as Lucy, was a little girl at the time of the massacre.

33.The massacre took place near Geardiyanbulbul which is the black mark on the Geegully River near Goorda Tower on the very edge of the tenement.

34.My father comes from the country around the exploration licence area. In 1916 the Massacre took place: east of Goorda Tower on the edge of Geegully river which borders the exploration licence area. The massacre happened near Geardiyanbulbul. Whilst this was happening my father followed the Geegully River to Mt Anderson.

35.My father travelled all through the area of the exploration licence area.

36.There is a movie which we made about the massacre called Whispering in our Heart. To film the movie we had to fly to get into the exploration license area because it is rough country.

37.This area is so important to us we bought the station so we could get in there. There is only one person still alive now who walked all through that area in those old times.

38.It is important to look after these places because the old people lived there and the massacre happened out there.

39.I know all of the stories about these places because my mother told me about all of the places and now we know we can access places through Mowla Bluff we are able to look after the place ourselves. The massacre was before my time but when we went out there we found many of the special places which showed the old people lived there and we could figure out where the massacre was from the details of the story of Yamadu.

40.Yamadu, his son and his wife camped up on the hill, in the exploration license area. They heard gun shots and heard the people at the bottom of the hill yelling ‘the police area here, the police are here’. All of the people who camped at the bottom of the hill were rounded up together, but Yamadu hid in the hill and saw what happened.

41.Yamadu snuck away and disappeared into the exploration license area. All over this area Anderson had sheep.

42.Yamadu use to go to Broome and live behind the police station. Other police boys which were his countrymen never dobbed him in.

43.Yamadu use to follow the police, so when they came back to Broome he would go back to the country.

ARTEFACTS AND PAINTINGS

44.When we went up to the northern part of the exploration licence area, close to Near Hill we found a lot of artefacts. We left the artefacts like stone axes in the exploration licence area where we found them which is the right thing to do in our law and culture. There are also artefacts near Blue Hole.

45.We have found paintings in the tenement area.

DREAMING STORIES

46.There is a dreaming story about Near Hill which is within the north of the exploration licence area. It is a story about Blue Tongue lizard and two boys hunting and tracking the lizard. They were going North. Because there is a story, we went out with the young people to find the special places even before the organisation I have already discussed, Yiriman started.

47.We took 7 cars out to find the special places after we bought Mowla Bluff.

CEREMONY

48.My father did his law ceremony in a place we call Jilarjuddi on the west edge of the exploration licence area. This is a special place for me.

49.None of these special places are marked an explorer would not know where they are but we know where they area. When we have an agreement with an explorer we can tell them where they are.

50.The best way to protect these places under our law and white law is to have an agreement with companies who want to explore the area.

MAJOR DISTURBANCE TO LAND AND WATERS

51.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 an exploration licence.

52.If an explorer starts digging out there I would be very upset and lots of other people would be upset too since their families have lived out there also.

53.I would feel bad if an explorer interferes with the massacre place because we don’t know all of the people who got massacred there was a big mix of different people who lived along that area. Some of my father’s brothers are buried on the exploration license area, there are many people buried on the exploration license area.

54.I would like to go along with the explorer to make sure people leave the artefacts and look after those very special places. Under our law anyone who is not Nyikina Mangala or Karajarri need to ask permission before they can go out on to our country.

55.The exploration license area is over a very important catchment area for water. The catchment area feeds into the Geegully River and other waterways.