Daisy Lungunan and Others on behalf of the Nyikina and Mangala People/Western Australia/ Areva Resources Australia Pty Ltd (formerly AFMECO Mining & Exploration Pty Ltd)
[2013] NNTTA 74
•21 June 2013
NATIONAL NATIVE TITLE TRIBUNAL
Daisy Lungunan and Others on behalf of the Nyikina and Mangala People/Western Australia/ Areva Resources Australia Pty Ltd (formerly AFMECO Mining & Exploration Pty Ltd), [2013] NNTTA 74 (21 June 2013)
Application No: WO2012/0335
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 the Nyikina and Mangala People (WC1999/025)
(native title party)
- and -
The State of Western Australia (Government party)
- and -
Areva Resources Australia Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 21 June 2013
Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – 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 not attracted
Legislation: Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Acts Interpretation Act 1901 (Cth), s 36(2)
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Mining Act 1978 (WA), ss 61(2), 66
Native Title Act 1993 (Cth), ss 29, 31, 146, 151, 155, 237
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield, [2012] NNTTA 27, (‘Banjo Wurrunmurra’)
Banjo Wurrunmurra & Others on behalf of the Bunabu Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibraa, [2008] NNTTA 127, (‘Monte Justin Ling’)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Butcher Cherel’)
Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21, (‘Cheinmora’)
Crowe v Western Australia (2008) 218 FLR 429; [2008] NNTTA 71, (‘Crowe’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24, (‘Geotech International’)
Jack Dann v State of Western Australia and GPA Distributors [1997] FCA 332; (1997) 144 ALR 1, (‘GPA Distributors’)
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] FCA 506 (‘Little’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243, (‘Oriole’)
Maitland Parker and Others on behalf of Martu Idja Banyjima /Western Australia/Derek Noel Ammon, [2006] NNTTA 65, (‘Maitland Parker’)
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, [2006] NNTTA 133, (‘Mineralogy’)
Maureen Young on behalf of the Ngadju People/Western Australia/South Coast Metals Pty Ltd, [2001] NNTTA 42, (‘Young’)
Monadee and Others v Western Australia and Another (2003) 174 FLR 381, (‘Monadee’)
Ned Cheedy and Ors on behalf of Yindjibarndi #1/Western Australia/Cazaly Iron Pty Ltd, [2008] NNTTA 39, (‘Cheedy’)
Queensland Gas Company Limited/Iman People #2; Mandandanji People/Queensland, [2010] NNTTA 210, (‘Mandandanji’)
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 v Northern Territory of Australia (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’)
State of Western Australia/Winnie McHenry on behalf of the Noongar People, [1999] NNTTA 210, (‘Winnie McHenry’)
Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
Ward v Western Australia (1996) 69 FCR 208; (2006) 136 ALR 557, (‘Ward’)
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 Others on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd, [2007] NNTTA 37, ('Globe Uranium')
Representatives of the Danica Trewern, Kimberley Land Council
native title party
Representatives of the Clyde Lannan, Department of Mines and Petroleum
Government party Cheyne Beetham, State Solicitor’s Office
Representatives of the Steve White, Spinifex Land Access Consultants
grantee party
REASONS FOR DETERMINATION
The Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice (‘the notice’) under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/2144 (‘the proposed licence’) to AFMECO Mining and Exploration Pty Ltd, specifying the notification day as 14 December 2011. 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).
On 20 August 2012, AFMECO Mining and Exploration Pty Ltd changed its name to Areva Resources Australia Pty Ltd (‘the grantee party’).
The native title claim of the Nyikina and Mangala People (WAD6099/1998; WC1999/025 - registered from 28 September 1999), (‘the native title party’), overlaps the proposed licence by 96.1 per cent. The claim area comprises approximately 26,000 square kilometres.
According to the notice:
·the proposed licence is approximately 93 BL in size (which equates to approximately 260.4 square kilometres).
·the proposed licence is located 44 kilometres south east of Derby.
·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. Although the notice stated 14 April 2012 was four months from the notification day, the closing day moved to the next business day of 16 April 2012 according to s 36(2) of the Acts Interpretation Act 1901 (Cth).
On 16 April 2012, an objection application was lodged with the Tribunal by Daisy Lungunan, John Watson and Others on behalf of the native title party, according to s 32(4) of the Act. The objection was accepted. The claim of the Warrwa People #2 (WC2012/009) currently also overlaps the proposed licence. However, as this claim was not registered at the four month closing day of 16 April 2012, there is no other native title party for the purpose of this inquiry.
The Tribunal had 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.
Directions were amended as parties attempted to reach agreement, but they were ultimately unable to do so. Status conferences were held between May 2012 and March 2013 and at the listing hearing on 16 May 2013, parties agreed the matter proceed to inquiry and that the inquiry be held on the papers (as allowed by s 151 of the Act).
In compliance with directions, the following were provided to the Tribunal and other parties:
(a)On 23 November 2012, DMP provided the Government party’s statement of contentions and evidence, together with:
(i)A Tengraph Plan with topographical detail, tenement boundaries, historical land tenure, Aboriginal communities;
(ii)The Tenement Application and proposed endorsements/conditions of grant;
(iii)The Instrument of Licence and first schedule, listing land excluded from the grant;
(iv)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; and
(v)A Report and Plan from the Department of Indigenous Affairs (‘DIA’) Register.
(b)On 12 March 2013, the native title party provided a statement of contentions with:
(i)An extract of the Register of Aboriginal Sites from DIA; and
(vi)An affidavit of Ms Rona Charles affirmed on 7 February 2013 with Annexure A (a map of the tenement prepared through Native Title Vision).
(c)On 21 March 2013, the grantee party provided a statement of contentions together with:
(i)An agreement which had been offered to the native title party ('Alternate Agreement'); and
(ii)A letter from the Kimberley Land Council to the Managing Director of AFMECO Mining and Exploration Pty Ltd dated 28 February 2012. Notably, this letter refers to tenements other than the proposed licence, but does demonstrate the general viewpoint that 'the Nyikina and Mangala People do not support uranium mining. Uranium exploration is seen as the first step toward uranium mining'.
(d)On 23 April 2013, the State Solicitor’s Office provided the Government party’s statement of contentions in response to the native title party, with the following annexures:
(i)Annexure 1: a map of the proposed licence;
(ii)Annexure 2: the Tengraph Quick Appraisal Form;
(iii)Annexure 3: DIA Aboriginal Heritage Inquiry System Results; and
(iv)Annexure 4: Draft Endorsement and Conditions.
On 19 December 2012, I was appointed by former President Neate as the Member for the purpose of conducting the inquiry.
On 3 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. Interestingly, the map clearly identifies Curtin Air Base, an item not addressed by the parties when outlining tenure. In the absence of contrary information, it is assumed that Curtin Air Base is the private land referred to in the Government party’s contentions of 23 April 2013. The map does not show any Aboriginal communities within the proposed licence, but shows an Aboriginal site overlapping the licence. This information is outlined in more detail throughout this determination.
Legal principles
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.
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).
In relation to the nature of an exploration licence, I adopt the principles outlined in Tarlpa at [10]-[15].
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]).
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].
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 (Oriole at [41]-[57]).
Evidence and information provided about tenure and the proposed act
Government party
In its contentions of 23 April 2013, the Government party outlined that the underlying tenure for the proposed licence consists of: pastoral leases covering a total of 83.4 per cent (PL3114/594 Meda at 16.5 per cent; PL H649773 Yeeda at 38 per cent; and I3114/1008 Mowanjum - Indigenous held at 28.9 per cent); private land (Lot 103 on Plan 215040) covering 15.6 per cent; road reserves covering less than 0.1 per cent; and Crown Reserve 1325 covering 0.9 per cent. Two historical leases cover up to 28.9 per cent of the proposed licence.
Past exploration has occurred over the whole of the proposed licence through exploration licence E04/1721 (granted in 2008 and surrendered in 2011). Five temporary reserves have also overlapped the proposed licence to a maximum of 100 per cent between 1965 and 1980, and all are now cancelled. There is no unallocated state land within the proposed licence. In addition, services affected on the proposed licence include: an SSM-DERBY 52; two major roads; a track; a fence line; a well/bore; a pipeline above ground water; an earth dam (Swamp D); two other earth dams; and a waterhole.
The Government party indicates there are no Aboriginal communities within the proposed licence. This is also shown in the map provided by the Tribunal. However, I do note the Aboriginal community of Mowanjum is approximately 12km to the north west of the proposed licence. There are also a cluster of Aboriginal communities near Derby, approximately 15-20km to the north west of the proposed licence, consisting of Djimung Nguda, Budulah, Karmulinunga and Burrinunga. These communities are outside the native title party claim area, and while it is not clear the extent to which the native title party lives or travels from these communities, there is evidence in Ms Charles affidavit that members of her family, as well as herself, were born at Derby, which is itself very near those communities, and approximately 20 kilometres from the proposed licence. Ms Charles herself deposes that she lives at Pandanus Park, which is an Aboriginal community within the native title party claim area, and approximately 25 kilometres south west of the proposed licence. She also deposes that the proposed licence is so close to the Nyikina Mangala community that they do not need to camp over night when they visit the area.
The extract from the DIA Aboriginal Heritage Inquiry System, Aboriginal Sites Database, indicates that there are no registered sites within the proposed licence. Swamp Dam (Site ID 13167) is recorded as an 'Other heritage site'. It is an open site, with no recorded gender restriction and is associated with a camp and water source.
The Government party sets out that the initial grant term of five years is renewable pursuant to s 61 (2) of the Mining Act 1978 (WA) (‘Mining Act’) and also sets out the rights attached to an exploration permit, as per s 66 of the Mining Act. The Government party intends to impose the endorsements and conditions set out in the Draft Endorsement and Conditions Extract, as follows:
ENDORSEMENTS
1. The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act1972 and any related Regulations thereunder; and
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.
CONDITIONS
1. All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.
2. All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.
3. All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4. Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5. The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6. The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·The grant of the licence; or
·Registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Commonage, Travelleres and Stock Reserve 14325[1].
8. No excavation, excepting shafts, approaching closer to the Derby Highway, Highway verge of the road reserve than a distance equal to twice the depth of the excavation and mining on the Derby Highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below a depth of 15 metres from the natural surface.
9. No interference with Geodetic Survey Station DERBY 52 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
10. Mining on a strip of land 20 metres wide with any pipeline as the centreline being confined to below a depth of 31 metres from the natural surface and no mining material being deposited upon such strip and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
[1] I note in the DMP Quick appraisal there is only such a reserve noted as 1325, and not 14325, so if these are referring to the same area, the reference in condition 7 may be a typographical error needing to be corrected before the conditions are issued.
The Government party also intends to place the proposed Regional Standard Heritage Agreement (‘RSHA’) condition on the grant of the proposed licence, as follows:
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 WAD6099 of 1998 (WC99/25), such request being sent by pre-paid post to reach the Licensee’s address insert address not more than ninety days after the grant of the licence, shall within thirty days of the request execute in favour of the Nyikina & Mangala a Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and native title representative bodies (e.g the Goldfields/South West/Central Desert/Pilbara/Yamatji Land and Sea Council RSHAs) and offered by the Kimberley Land Council.
The Government party outlines some of the general features of an RSHA agreement, including that the grantee party must: notify the native title party and provide detailed information about proposed on-ground works; consult about surveys of the land in relation to ground-disturbing works prior to carrying them out; carry out surveys with the participation of the native title party prior to commencing work in some circumstances; and consult the native title party before applying for consent under s 18 of the Aboriginal Heritage Act 1972 ('AHA').
The Government party points to the Tribunal’s past acceptance in Butcher Cherel at [46] and [64]-[66] that the RSHA condition above has sufficient clarity. However, the wording of the proposed RSHA condition is peculiar as Kimberley Land Council does not offer an RSHA. On inspection of those excerpts in Butcher Cherel, I do not think they are favourable to the Government party, as they in fact demonstrate the position that there is no Regional Standard Heritage Agreement endorsed by peak industry groups offered by the Kimberley Land Council. Subsequently, the general features of the RSHA condition appear to be of little relevance in this matter.
Grantee party
In its statement of contentions (at 3.1-3.11), the grantee party indicate that its exploration program aims to test the potential of subsurface sedimentary layers. The program consists of three main features, summarised as follows:
(a)Access tracks. The grantee party submits that, where possible, pre-existing access tracks will be used to drill sites. Some access tracks may require maintenance, which could consist of clearing vegetation, using a chainsaw, using a steel bar and mesh towed behind a vehicle, and infill of dangerous pot holes and washouts. The exploration program will require limited construction of access tracks and this will also require vegetation clearance.
(b)Drilling. Sediment-hosted mineralisation will be targeted and 12-20 drill holes are planned for the first year, with an average depth of 250m and a maximum depth of 450m. If clearing pads are required, an area of 30 x 20m is expected to be cleared.
(c)Rehabilitation. Each drill site and temporary access track will be rehabilitated as soon as possible and this task shall be monitored via selected Photo Monitoring Points.
I do note that the grantee party only outline the proposed activity in the first year, and not the likely or contingent activity in subsequent years. I also note that it is not apparent whether the clearing pad area quoted is per drill hole, or in its entirety. I have assumed it is per drill hole, based on the grantee party statement that the area taken up would be around 1.2 hectares, which suggests a maximum of 20 clearing pads at an area of 30 x 20m each would be required across the proposed licence.
The grantee party has stated (at 9.5 of its contentions) that it relies upon the decision of Deputy President Sumner in Globe Uranium, 'in relation to the imposition of any uranium schedule proposed by the Native Title Party whilst negotiating whether The Tenement should attract the Expedited Procedure statement'. It is not clear which part of that decision the grantee party relies upon, however, I note that Deputy President Sumner, at [87], stated:
The Tribunal for the first time has been confronted with an argument that exploration for uranium as opposed to other material means there is a greater likelihood that the native title party’s community or social activities will be directly interfered with and that there will be major disturbance to land. When considering this issue it is important to bear in mind that the inquiry conducted by the Tribunal is confined to assessing whether the interference and disturbance in s 237 is likely to occur. The Tribunal is not mandated to conduct a wide ranging inquiry into the Government party’s regulatory regime for uranium exploration unless it is relevant to its central purpose of deciding whether the interference and disturbance referred to in s 237 is likely to occur.
In the present matter, no party has relied on or referred to uranium specifically, apart from this reference to Globe Uranium, and the letter from the KLC attached to the grantee party contentions. Accordingly, I have not made further enquiries into this aspect of the matter.
Considering the evidence under s 237 of the Act
Section 237 (a) Interference with community and social activities
Native title party
Ms Charles’ affidavit indicates that she is a Nyikina Mangala and Warrwa woman and her great grandfather is an apical ancestor of the Nyikina Mangala claim group. Ms Charles’ affidavit is widely referred to in all party contentions and is attached to this determination as Attachment A. I accept that Ms Charles is authorised to represent the native title party in this matter.
The native title party contends that the grant of the proposed licence is likely to interfere with the carrying on of the community and social activities of the native title party in relation to the area.
Noting that the community and social activities are to be a manifestation of the claimed native title rights and interests, the native title party (at paragraphs 13 and 16 of its contentions) summarised its community and social activities, with reference to evidence in Ms Charles’ affidavit, stating that members of the native title party:
Belong to country within the tenement area: Paragraphs 7, 8 and 14;
Live and camp and conduct their community within the tenement area: Paragraphs 13-53;
Hunt for animals, including ducks, goanna, black headed python, porcupine/echidna, kangaroo, emu and bush turkey, within the tenement area: Paragraphs 19-25, 38-40;
Visit country and collect traditional foods and products (bush tucker including water lilies, boab nuts, sweet white fruit, sweet sugar bag, bush passionfruit, dadadoo and bira worms) and collect material such as spinifex, jogal tree wood and corktree, for use in ceremony: Paragraphs 31-36, 39-42;
Rely on the produce of their activities for sustenance (they collect bush medicines such as gilawa tree bark, konkerberry wood for coughs and colds and sores; and they rely on hunting and collecting due to the natural environment being more favourable in the area of the proposed licence than compared with surrounding areas): Paragraphs 16, 33, 43, 44, 46, and 52;
Teach aspects of their culture to children and others through activities conducted on the tenement area (they cook and prepare what they hunt and collect to teach young people; they access the area so cultural awareness training can be provided for people who do not belong to the native title party): Paragraphs 23, 26, 27, 31, 37, 38, 47-51, 53 and 59.
In Ms Charles’ affidavit, she confirms that she is a member of the claim group. She also explains how her family walk across the tenement, back and forward from Yeeda to Meda, and she knows the stories for that place. She states that she is very familiar with the proposed licence area and has been shown a map of it (Annexure A to her affidavit).
She visits the proposed licence area regularly, over the whole calendar year, and as recently as December 2012, when she took her children, grandchildren and nephews there to catch goannas, due to the area being better for animals and hunting than surrounding areas.
Ms Charles regards the proposed licence as the best area for hunting, stating that the constant availability of fresh spring water brings animals to the area. It is particularly good for goanna, kangaroos and bush turkeys, and it is the only area for capturing ducks (see for example paragraphs 15, 16, 17, 20, 25 and 26). She describes the following being found within the proposed licence: the anthills are bigger which in turn attract bigger goannas; the bush turkeys are fatter; the wood of the Bloodwood gunjan tree is the best for cooking goanna and kangaroo; and the best boomerangs are made from the jigal tree (see paragraphs 25, 27, 30 and 39). Various useful plant substances are also referred to as being found within the proposed licence.
It is important to note that other than the fresh water area near Munkayarra, just outside the proposed licence, hunting opportunities within the proposed licence are regarded as superior and distinguishable from all other lands between the Nyikina and Mangala community and Derby, which are considered to be salty marsh and lacking in water. This evidence has not been contested by the Government party or the grantee party. She also describes the greater achievability of hunting within the proposed licence, as she states hunting is not permitted in pastoral leases west of the community, and is difficult elsewhere due to the presence of cattle.
At paragraph 14 of her affidavit, Ms Charles comments that the proposed licence area 'is not covered by a pastoral lease'. This is not sustained by the tenure analysis provided by DMP (see [17] above). However, I believe this statement goes more to the fact that there has been no apparent impediment to the activities of the native title party in the proposed licence, compared with other areas which have cattle and other pastoral activities which have affected vegetation and hunting.
Ms Charles also describes the proposed licence as being an important area for teaching purposes because: non-Nyikina Mangala people and school teachers are brought there for cultural training; children are taught about animal tracks; and children are taught by men about using spinifex for arrow tips. She regards it as the best place to teach children to identify trees and to track goannas and other animals (see paragraph 47).
The native title party also submits that the mere existence of the grantee party on the tenement, where there has been no negotiation or consultation, could be likely to give rise to a direct interference with community or social activities, even if there is no direct physical interference, referring to the decision of Carr J in Ward.
Grantee party
In seeking to demonstrate there will not be interference to community or social activities, the grantee party refers to the temporary nature of exploration activities, the absence of Aboriginal communities within or near the proposed licence and its capacity to avoid interference to sensitive environmental and cultural sites due to the possibility of modifying planned drill hole locations where they coincide with social and community activity areas. The grantee party specifies that the 12-20 drill holes expected to be drilled in the first year of exploration would constitute up to 1.2 hectares or 0.004 per cent of the proposed licence.
The grantee party also indicates that it intends: to avoid precluding community activities, subject to safety; to consult with traditional owners to minimise disturbance to activities or cultural sites; and to communicate regarding safety issues. Specifically, consultation would occur in relation to the 2-3 day period in which a drill rig would be operated, as well as other times. They do not specify how or by what mechanism that consultation would occur, although I note that reference is made in the Alternate Agreement to providing notice to the KLC prior to entering onto the land or prohibiting access. Apart from this, the Alternate Agreement appears to focus on heritage and site issues, rather than on social and community activities of the native title party.
Again, it is not clear whether the 2-3 day period is per drill hole, but assuming that is the case, on the basis that there is not likely to be more than one drill on the area at any one time, then the area would be subject to grantee party activities for a maximum of 3 days per 20 drill holes, or a total of approximately 2 months within the first year.
As noted earlier, there is no indication of the likely activities after the first year of exploration.
Government party
The Government party refers to the grantee party’s reasoning in [39]-[40] above in support of its contention that the act is not likely to interfere directly with the carrying on of community or social activities. The Government party contentions (at paragraphs 37, 38, 41) argue that interference is unlikely taking the following into consideration:
· Prior mineral exploration within the area (as previous exploration licence E04/1721 wholly overlapped the proposed licence).
· The impact of the underlying pastoral leases and the likelihood that some or all of those interests would have extinguished the right to access and control use of the land (note (iii)-(iv) of Registered Native Title Rights and Interests on the extract from the Register of Native Title Claims).
· The absence of Aboriginal communities within the proposed licence (referring to ButcherCherel at [33]; Cheedy at [44]; and Crowe at [68]).
· The low-scale and infrequent activities proposed by the grantee party and the grantee party’s good intentions to exhibit cultural sensitivity, maintain good relations with the native title party and willingness to enter into an agreement addressing most of the native title party’s concerns.
· It is possible for hunting and mineral exploration to co-exist.
In relation to these points, I do note with reference to Aboriginal communities and Cheedy, for example, that there was no evidence in that matter of members of the native title party living near the proposed licence and no established physical communities of claim group members in the immediate vicinity.That is not the case in the present matter under consideration. In addition, in Cheedy the claim overlap was just over 11 per cent, whereas in the current matter the claim overlap with the proposed licence is over 96 per cent. In relation to Cheedy and the other two cases cited at [43] above, limited information was provided in relation to social and community activities, and as such, they can be distinguished from the present matter in that respect.
The Government party asserts that s 237(a) does not take account of spiritual/non-physical aspects in isolation from the physical aspects of the activities. The Government party disagrees with the native title party’s reliance on Ward (see [38] above), and refers to several cases as authority for a physical element being required (see, for example, Tarlpa at [65]-[77] and Silver at [57]). I note that, as outlined in Walley (at [21]), 'findings of the kind cited in...Ward would no longer on their own be sufficient to sustain an objection to the expedited procedure'. As such, I agree with the Government party that the native title party reliance on Ward is of little assistance in this matter.
Consideration
The native title party has provided detailed evidence, not merely general or unspecified, about the community and social activities carried out within the area of the proposed licence. Ms Charles has provided evidence that the teaching of traditional ways to younger members of the community is regularly carried out on the proposed licence. She demonstrates continuity and longevity in the native title party visiting the proposed licence ‘over the whole calendar year’. She has also provided extensive reasons why hunting animals and gathering plant products is very important within the proposed licence and cannot be as easily carried out elsewhere. This evidence has not been contested. I accept that the activities are important and cannot be carried out to the same extent or with the same benefits in areas outside the proposed licence. However, whether the well-established activities will be interfered with must be considered.
In relation to the underlying tenure, it is noted that the Mowanjum pastoral lease is Indigenous held. Although this is only one of the pastoral leases underlying the proposed licence, the argument regarding the native title party’s activities being subject to lawful activities of pastoralists has to be qualified by the different kinds of access the native title claimants may have to this particular pastoral lease. In Monadee, it was found that the usual prevalence of ongoing lawful activities of pastoralists over native title rights did not automatically occur in the case of an indigenous held pastoral lease (see also Banjo Wurrunmurra at [52]-[53]). In addition, Ms Charles' evidence is such that there does not appear to have been any historical impediment to the community and social activities of the native title party over the area of the proposed licence, as compared with such impediments elsewhere in the claim area.
In viewing the proposed licence within the context of the general area, the existence of various Aboriginal communities in reasonable proximity to the proposed licence, as outlined at [19] above, detracts from the impact of the argument put forward by the Government party that there are no Aboriginal communities within the proposed licence. The fact that there is at least one and possibly more such communities where member of the native title party reside relatively near the proposed licence supports that it is an area where the native title party is active, which is also supported by Ms Charles' affidavit evidence.
Regard is to be given to the temporary nature of exploration, the size of the tenement, and the Tribunal’s general position in previous decisions that exploration activity is not likely to interfere with community and social activities. The previous exploration permit E04/1721 was operative between 2008-2011 and wholly overlapped the proposed licence. The Government party and grantee party have not detailed the specific activities undertaken under that grant. Due to relatively recent exploration, it is possible the native title party’s social and community activities reflect the circumstances when exploration was occurring on E04/1721, such that the proposed licence would be less likely to have a substantial impact. However, without sufficient information regarding E04/1721, limited consideration can be given to this factor. In addition, Ms Charles' evidence does not indicate any such interference.
I have considered the grantee party’s argument (at paragraph 5.2 of their contentions), that the impact of drilling would affect a relatively small area of the proposed licence, and that this diminishes the likelihood that community and social activities would be directly interfered with. I have also considered the grantee party’s statement that it will consult widely and avoid drilling in areas of environmental and cultural significance, but note that the method of such consultation has not been outlined. It is not clear, for example, whether the Alternative Agreement would be such a mechanism, and if so, how that would work in practice. In addition, the information provided relates only to the first year of exploration, when the grant of the proposed licence allows for 5 years of exploration and various activities apart from drilling, including: excavation of up to 1000 tonnes of material per year; creation of exploration tracks; creation of drill pads; and excavation of minerals and earth in the course of exploration activities. I note that if drill pads are required, that may need approximately 2 months of drilling activity. Even assuming the grantee party can modify the areas where drill holes are made, given the specific nature and extent of community and social activities which are stated to occur across the proposed licence, and its unique features as compared to areas outside the proposed licence, I conclude that interference with such activities is likely to occur.
In relation to whether s 237(a) can include spiritual aspects, I adopt the reasoning of Deputy President Sosso in Silver, where he found that spiritual activities are within the scope of s 237 (a) where they are rooted in physical activities. Also in Walley, Deputy President Sosso indicated that activities arising from the community’s spiritual belief, such as conducting ceremonies and teaching children about spiritual aspects of law, traditions, customs which are related to a claimant’s native title and connection to land are covered by s 237(a). In the present circumstances, the native title party evidence demonstrates they do not rely solely on spiritual elements, and that they are rooted in physical activities.
In Tarlpa, the native title party focussed on the obligations and responsibilities to look after country. It was held that such actions would not be interfered with by the exploration activities of the grantee party. However, that matter can be distinguished from the present matter in that Ms Charles does not focus on looking after country, particularly in relation to the evidence provided in relation to s 237(a) (there is some reference to these obligations in the evidence related to s 237(c)). Ms Charles has instead provided specific information about a range of social and community activities which take place on the proposed licence, by herself and by other Nyikina Mangala people, throughout the year.
Taking all of the evidence into account, including the nature and extent of activities on the proposed licence, in comparison with surrounding areas, I find that the act is likely to interfere directly, and in a substantial and not trivial way, with the carrying on of community and social activities under s 237(a) within this proposed licence.
Section 237 (b) Interference with sites of particular significance
Native title party
In relation to s 237(b), the native title party contends that the grant of the proposed licence is likely, in the sense that there is a real rather than a remote chance, to directly interfere with areas or sites of particular significance in accordance with their traditions in relation to the land and waters concerned.
The proposed licence is regarded by the native title party as being located in a 'site rich' area. In supporting this assertion and detailing areas of particular significance, the native title party refers to the site of Swamp Dam within the extract from the Register of Aboriginal Sites from DIA and paragraphs 11, 12, 54 and 55 of Ms Charles’ affidavit.
In seeking to demonstrate that the significant sites would not necessarily be protected under the AHA, the native title party draws the following distinctions between s 237(b) and the AHA, at paragraphs 20-26 of its contentions:
There are sites within the tenement which fall within s 237(b) but do not fall within the definition of a site under the AHA (and, therefore, would not attract protection under the AHA);
Protections of s 17 of the AHA: cover only sites and objects as set out in s 5 AHA; should only be given such weight as the Tribunal considers appropriate; and the protections do not require that holders of native title be consulted;
The definition of an area to which the AHA applies is more restrictive than the terms of
s 237(b). As an example, the native title party outlines that under the AHA, a place must be of importance and significance to the cultural heritage of the State to fall within s 5(c), which is to be contrasted with the Native Title Act, which refers to particular significance to the native title party rather than to the cultural heritage of the State. As another example, the AHA is stated to be limited to areas of cultural heritage significance where as the Native Title Act refers to areas or sites of particular significance;
The criteria for offence provisions in s 17 AHA are different from the test of interference to sites under s 237 (b) (citing Young); and
A grantee party can interfere with a site of particular significance under the Native Title Act without breaching the AHA.
Grantee party
The grantee party relies on the interpretation of s 237(b) according to, for example, Cheinmora at p34, Silver at [91], and Mandandanji at [72], in outlining the need: for direct evidence; for special or more than ordinary significance; and to locate the site and explain the nature of its significance.
The grantee party contends that interference with areas or sites of particular significance to the persons who are the holders of native title in relation to the land concerned is unlikely according to the following reasons:
The grantee party has the ability to move planned and future drill holes to avoid areas of significance.
Protection is offered through the operation of the AHA and the planned exploration activities have a relatively small footprint.
The existence of statutory restrictions of the Mining Act and the activities will be undertaken pursuant to the licence granted.
The native title party has not identified sites of particular significance.
The grantee party has never been prosecuted for any breaches of AHA or found not to have complied with any other cultural heritage legislation.
In response to the following paragraphs of Ms Charles’ affidavit, the grantee party contends:
Paragraph 11 and 12 concerning Munkayarra and Knobby Well Camp and the ceremony place: these areas are outside of the proposed licence.
Paragraph 54 concerning Swamp Dam: the grantee party will not impact that area. It also intends to make employees/contractors aware of Swamp Dam as a site listed on the DIA website.
Paragraph 55 concerning the Nyikina dreaming story: the grantee party acknowledges there may be significant sites within the area. To accommodate the concern, the grantee party intends to: undertake a heritage survey (as per either AHA or the Alternate Agreement attached to its contentions); make its employees/contractors aware of any site of significance identified after conducting the survey; and impose an exclusion zone upon employees/contractors around any Aboriginal site or area of significance registered with the DIA and any site identified during the heritage survey.
Paragraph 56-60 concerning swamps and associated wildlife: the grantee party would not impact a swamp or natural watercourse area due to logistical and environmental issues.
In response to the native title party’s contention (at paragraph 19) that the proposed licence is within a site rich area, referring to Swamp Dam, the grantee party contends:
That site is not a registered site under AHA and is displayed as ‘insufficient information’.
It will not drill in a swamp or natural watercourse area, inclusive of Swamp Dam.
Government party
The Government party contends the act is not likely to interfere with areas or sites of particular significance and raises the following key arguments:
The protective effect of the AHA makes the prospect of interference unlikely (referring to Maitland Parker at [35]).
Interference requires physical intervention (referring to Silver at [88])
‘Particular’ significance is different to ordinary or special significance and the significance must be identifiable (referring to Cheinmora at p34-35 and Winnie McHenry at [15]).
Any willingness on the part of the grantee party to enter into an RSHA is relevant (referring to Tarlpa at [52]-[54]).
In relation to Ms Charles’ affidavit, the Government party raises the following:
The Munkayarra and Knobby Well Camp in paragraph 11 and the ceremony place in paragraph 12 are outside the tenement.
The grantee party has indicated it will not be exploring within Swamp Dam (paragraph 54 of affidavit).
The Government party also disputes the native title party’s contention (in paragraph 19) that the area of the proposed licence is site rich, noting that it is not a defined term or legal test arising out of Tribunal decisions and the existence of some identified site on or near a tenement does not mean it is so.
Consideration
As raised at [22]-[24] above, the wording of the RSHA clause implies the Kimberley Land Council has offered the RSHA, when in fact the Kimberley Land Council does not offer an RSHA and there is no evidence from the grantee party regarding willingness to enter into an RSHA. In relation to the grantee party’s lawful conduct under cultural heritage legislation, I accept that they are willing to enter into the Alternate Agreement and add the proposed licence to the schedule of that agreement, if the Kimberley Land Council were to change their position and agree to the terms, and that they intend to act lawfully. However, an agreement covering the proposed licence has not been entered into and many Tribunal decisions have confirmed that interference under s 237(b) is potentially wider than the activities in s 17 of the AHA (see Young at [57]). Therefore, I do not find compliance with AHA and willingness to enter an agreement encompassing cultural heritage matters, to be a clear indication that interference will not occur.
The status of Swamp Dam and the parties’ interpretation of it must be deciphered carefully. The fact that it is not categorised as a registered site does not negate the possibility it could be a site of particular significance. Many Tribunal determinations have found sites to be of particular significance despite a site not being recorded by the DIA as a ‘registered’ or ‘other heritage site’, and the Register is not a conclusive record of all Aboriginal sites within the State (see Champion at [68]). I accept that Swamp Dam is very important to the Nyikina Mangala People and has been used for camping as Nyikina Mangala, Bunuba and Warrwa People walk across the site for ceremony and family purposes (paragraph 54 of Ms Charles affidavit). However, the grantee party has noted their ability to move drilling holes, and that they would not be exploring in this area, so the likelihood of such interference is reduced.
Ms Charles’ description of the Nyikina dreaming story (paragraph 55) is important, detailing that the Nyikina Warrior Wunyunbu created Nyikina country, as he started from the mouth of the Fitzroy River (approximately 17km west of the proposed licence), then took the Madjala tree all over Nyikina country and ‘sent mobs across where the Exploration Licence area is, to their country’. Wunyunbu also ‘sent the mobs their corroboree songs’. Ms Charles does not specify the impact the grant of proposed licence may have on the features of the dreaming story.
In relation to the interaction between s 237(b) and the regulatory regime based on the AHA, I refer to the presumption of regularity in Walley at [50]-[51], whereby the regulatory regime is generally regarded as adequate to ensure that there is not likely to be interference with sites of particular significance. Each case must be considered individually as the protective regime cannot be said to be adequate at all times to make the s 237(b) interference unlikely (see Maitland Parker at [35]). Also, the intentions of the grantee party with respect to the protection of Aboriginal sites are a relevant aspect of the predictive assessment of whether interference is likely (see Maitland Parker at [41]).
The grantee party intends to make employees aware of Swamp Dam, any sites which could be identified if a heritage survey were to be conducted (according to the proposed Alternate Agreement) and any site located as a result of exploration activities or by way of their responsibilities under the AHA (paragraph 6.11 of its contentions). Making employees aware does not in itself indicate that measures of protection would be put in place. However, the grantee party states that it will impose an exclusion zone, for the notice of employees and contractors, around any registered site and any site which could be identified if the heritage survey were conducted according to the Alternate Agreement. I am of the opinion that an intention to protect Aboriginal sites can be drawn from these contentions.
I acknowledge the grantee party and Government party’s submission that paragraph [11] to [12] of Ms Charles' affidavit concern areas outside the proposed licence.
At the very least though, the existence of these sites indicate there is indigenous activity close to the area, and it is likely the proposed licence is visited frequently due to the proximity of these important areas.
The term site rich is to be deciphered carefully. In Mineralogy, the use of site rich was construed by Deputy President Sosso at [19] to [21] as follows:
[19] ...It is open, of course, for the native title party to make such an assertion, but the question of whether an area is site rich is a question of fact. Identification of whether an area is site rich can only occur if there is evidence of sites and areas registered under the relevant aboriginal heritage legislation of a State or Territory and/or evidence from persons asserting native title identifying such sites and explaining their significance. It would be incorrect to assume that simply because there are numerous sites registered on a heritage register that the Tribunal will make a finding that an area is "site rich". That term is not recognised in the Act, and has been used by various Members as a short hand description of an area which is demonstrably rich in sites of particular significance to native title claimants and which sites cumulatively illustrate the overall spiritual importance of the relevant land and waters. Accordingly whether there are numerous sites registered or no sites registered is not of itself determinative of whether an area is "site rich".
[20] In this matter the native title party points the Tribunal to the fact that the proposed tenement is surrounded on all sides by sites registered with the Department of Indigenous Affairs. That is an important factor, but it is only the starting point. It would be an unusual circumstance for the Tribunal to make a finding that an area is "site rich" without direct evidence from a person or persons from the claim group who can demonstrate that they are authorised to speak on behalf of a site or area, and that they have the requisite knowledge to explain the spiritual significance of an area or site to the claim group, or to a family or other sub-group within the wider claim group.
[21] ... The Tribunal will look beyond such assertions, and concentrate on direct evidence from the indigenous spokespeople and from independent and objective sources of information, particularly heritage registers.
Also, in Geotech International, it was concluded that s 237(b) is concerned with identifying sites of particular significance and it is not a necessary requirement to combine various sites into a general assertion that an area is site rich. I adopt the following reasoning from Member O’Dea in Geotech International at [43]:
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 [sic], 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.
Consequently, I agree with the argument of the grantee party and Government party raised above that the term site rich is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b). I believe Swamp Dam is a site of particular significance, and the grantee party has outlined that exploration will not occur in that area. As such, I am confident that the regulatory regime, and the grantee party intentions, will mean that sites of particular significance are not likely to be interfered with for the purposes of s 237(b).
Section 237 (c) Major disturbance of land and waters
Native title party
In relation to s 237(c), the native title party contends that the grant of the proposed licence is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to land. This is stated as being because there are places of such significance to the local community that activities may disturb the ecological and environmental balance required for hunting, gathering and teaching. The native title party relies on the following to support this view:
The activities permitted under the grant of the licence:
(a) Reverse circulation drilling in area of hypersaline groundwater;
(b) Diamond core drilling, including the creation of drill holes;
(c) Excavation of up to 1000 tonnes of material;
(d) Creation of exploration tracks;
(e) Creation of drill pads;
(f) Excavation of minerals and earth in the course of exploration activities.
Affidavit evidence of Ms Charles at paragraph 56-60 regarding major disturbance that may be caused to vegetation, water ways and hunting practices which would affect the food available.
Interpretation of major disturbance in GPA Distributors requiring the ordinary English meaning with relevant factors including viewpoints of the community and matters such as community life, customs, traditions and cultural concerns (per Wilcox J and Tamberlin J).
Grantee party
The grantee party contends the grant of the proposed licence is not likely to involve major disturbance to any land or waters concerned due to the fact that: the conditions of grant are subject to exploration only; the Mining Act imposes statutory restrictions; the grantee party will act lawfully by Mining Act standards; and any disturbance will be restored as much as possible as soon as possible.
The grantee party also relies on Walley (at [23]) in establishing that s 237(c) requires a value judgement, taking into consideration the view of the general community and rehabilitation measures.
Government party
The Government party agrees with the grantee party’s reasoning set out in [74]-[75] above and makes the additional points:
· ‘Major disturbance’ should be given its ordinary English meaning as understood by the whole community inclusive of Aboriginal People (Ward at p 227; GPA Distributors per Wilcox J; and Cheinmora at p 37) and requires an objective analysis.
· The regulatory regime is highly relevant (Rosas at [87]).
· The context of the act (inclusive of the history of mining and exploration in the relevant area) is important (Littleat [34]).
Consideration
For s 237(c), 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.
It is noted that there is no RSHA agreement in place, and no evidence that the grantee party is willing to enter into one, although the Government party have stated they will impose an RSHA condition on the grant of the proposed licence. Other mechanisms to prevent major disturbance include the constraints of the Mining Act, the conditions to be imposed on the licence, such as requirements for rehabilitation, and the endorsements on the proposed licence which direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA).
There is no evidence that the grantee party is likely to fail to comply with the State’s regulatory regime, and the native title party has not provided any evidence of particular features of land or water that are likely to suffer major disturbance for the purpose of s 237(c).
Having regard to these factors, I do not find that major disturbance to land and waters under s 237(c) of the Act is likely to occur in this matter.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2144 to Areva Resources Australia Pty Ltd, is not an act attracting the expedited procedure.
Helen Shurven
Member
21 June 2013
ATTACHMENT A
Affidavit of Rona Charles
I, Rona Charles, Cultural Advisor of Yurmulun Community, of Yurmulun Community, in the State of Western Australia, affirm:
My name is Rona Charles. My Aboriginal name in Gunwjanda.
I was born on 19 day of March 1969 at Derby.
My mother was Veronica Charles, her aboriginal name was Jigi she was a Nyikina woman. She was one of a twin. Her sister was Dorothy.
From my ancestors I am a Nyikina Mangala and Warrwa woman.
My great great grandfather is an apical ancestor for the Nyikina Mangala Native Title Claim group. He was known as Gurupirin. He has a son Tommy, Lanji Lanji, Lanji Lanji’s son was Tjarlarbuny and he married a Warrwa woman from around Meda station. She was born near Windjana Police Camp. She was my grandmother, her name was Maranya who was also known as Dora Urda. My family use to walk from around Yeeda station, Illarwadja through to Meda station.
When I say Yeeda, I mean all of the country around Yeeda station where the men were rounded up to work. All of the babies which grew into my aunties and uncles were born around Yeeda station. My grandmother left the station when she was going to have babies so they were all born in different places along the swamp area up and down the Fitzroy River. One boy, uncle, was born near Derby, Barula at a boab tree which is a registered site with the DIA.
I am member of the Nyikina Mangala claim group. I am not a senior person for Nyikina Mangala People but because my family walked back and forward to Yeeda and Meda the senior Nyikina Mangala people decided I was best to speak for the country which the tenement is over since I have personal history for this place. I know all of the stories for that place. The old people have told me it is time for me to step up and speak for my Country. At the meeting of the Nyikina Mangala named applicant I was nominated by the cultural advisors to depose this affidavit.
I know the area where Areva Resources Australia, “the grantee party”, have applied for Exploration Tenement E04/2144, “the exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
The exploration licence area is a very important hunting place for our community.
Part of the exploration licence area is beside the army base which called Curtin Air Base on the map. There is a road which runs from Great Eastern Highway along the side of the Air Base which is one track we use to travel up into the exploration licence area.
Just outside the exploration licence area is an important camp called Munkayarra and Knobby Well, there are some ruins there. On the map it is near Munkayarra.
There is also a ceremony place around 15km to the south west of the exploration licence area near the highway and another Men’s business place between our community and the tenement. I cannot speak for Men’s business but I know it is an important place because I have been told this by my elders.
INTERFERENCE WIH COMMUNITY OR SOCIAL LIFE
I live at Pandamnus Park Community, Yurmulun which is about 25 kilometres by road to the exploration licence area. Between the community and the tenement is a pastoral lease and the Curtin Air Base.
The exploration licence area falls wholly within Nyikina Mangala country. The exploration licence area is important to us because so many people have travelled over the area it covers for ceremony; it is the best hunting grounds and is not covered by a pastoral lease.
In the marsh country it is dry and salty and there are too many cattle for us to go hunting and the pastoralists won’t let us go there but in the place of the exploration licence area there is no pastoral lease which means there are still big trees and everything that grows there means the hunting is better for the animals, it is good Bidar, bush country.
Nyikina Mangala Warra and Bunuba people used to go through the exploration licence area for hunting and to attend ceremony at different ceremony places which are just outside the exploration licence area. There is fresh spring water on the exploration licence area all year round which is good for people hunting and for the animals and vegetation in that area. The other place with fresh water which is good for hunting is just outside the north-west tip near Munkayarra. All of the other land between the community and up to Derby is all salty marsh with not good water or hunting.
We are not allowed to hunting in the pastoral lease areas West of our community, so the area in the exploration licence area is very important to us.
We get to the tenement by driving on the unsealed road which runs on the East side of the Curtin Air Base up to swamp area.
People from my community go out the exploration licence area for hunting all of the time because the hunting is so good. The exploration licence area is especially good for goanna because there are lots of red anthills which they hide under.
In the wet season this swamp area is best for hunting ducks and goanna, barni. The ducks are mostly whistle ducks. We have a story for the whistle duck around Langey Crossing. The story is about a crocodile that comes up from the south looking for his children. His children have taken the form of ducks and he finds them and Langey Crossing.
The last time I went out to this area was before the rain came in December 2012. I took my children grandchildren and nephews. They included my sons Johnny and Francis; my nephew Samuel; and a load of my grandchildren.
We caught three big goannas but no snake on that trip.
The last time when we went in December I took my nephews to do the hunting and walking. The boys got the fire ready and I walked all around the swamp looking for tracks, I took the children walking with me and taught them about the tracks.
The boys, my nephews, went further away from the swamp hunting they brought back three big goannas but no snake. The boys go walking a long way in that country. Sometimes they walk for more than 3 hours.
During the colder months around August it is the best time to hunt kangaroo badguroom and bush turkey gardarangia. The bush turkeys are much fatter around the fresh water springs and swamp in the exploration area.
When we go to the exploration licence area, first someone has to start making the fire because we need the fire to be going for long enough for all the coals to be hot enough to cook the goanna. I often cook some damper and wait for ducks. We can’t get duck from lake Alice anymore which is closer to the community because of a big story, we can only get duck in the swamp in the exploration licence area.
The best wood for cooking goanna and kangaroo is from the Bloodwood gunjan tree which can be found in the exploration licence area. In other places, like near the river closer to our community, there is on paperbark or snappy gum which is not as good for cooking.
To catch the goanna the boys need to run very fast, they either hit the goanna with a stick or pick it up by the tail and hit the head hard on the ground. It is fun times for my community when the children are learning how to catch and chase the goanna, even if one of the little ones falls over all the others keep running fast. To carry goanna the person who catches is has to carry it on their shoulders, that’s law to make sure the goanna is good and it doesn’t bruise all the insides.
When we do find black headed python barnumbaroo, or echidna then we have to cook it out at the camp before we bring them back for the old people. We have to share this food with the old people under our tradition and custom. The old people like this meat the best but it is too rich for me.
The echidna and goanna like to hide in the big red ant hills out at the exploration licence area. We call the red ant hills jilgarit and the skiny white ones which are not in the tenement tjalabunat. On the exploration licence area there are bigger anthills which means there are bigger goanna hiding in there.
Each time I go to the exploration licence area, like last December, I teach the children about animal tracks and I show them how to find special lilies out in the swamps. The lilies which are very sweet are the children’s favourite thing to eat out there. The children also like to eat the boab nuts for their sweetness.
In the wet season there are also little white fruit on a big bushes that grow very close to the swamp. They grow along the edge of the water and the fruit tastes like sugar.
Over the whole calendar year we go out there but it depends on what season it is as to what hunting we can do and what fruit and medicine we can collect. We go out to the exploration licence area for the whole day and if we have a good hunting day then we go back out the next day. The area is close to the community we don’t need to camp out there overnight.
There are many other special plants we collect and use for different purposes in the exploration licence.
There are sweet sugar bag to collect, galanga which you can find in the warabar tree. I teach the children to look for flies and waxy sticky sap, which comes out of a hole in the tree. We have to teach the children how to tell the signs for the right trees to cut down as we don’t want them cutting down the trees for no reason.
There is Spinifex out in the exploration licence area. Spinifex is used for lots of things. It is a good fuel for a starting a fire and when we make fire we put it on the bottom to help the top wood burn. We also crush the spinifex up and make it into a paste to put over sores.
The men use Spinifex to make wax which is used for arrow tips. Some of our men teach the boys how to use the Spinifex from the exploration licence area. The wax is also used to rub over a boomerang to keep it shiny and hard so that water won’t get into the wood.
Children learn from an early age by watching the older men how to make a boomerang but they are not allowed to carve them until they are old enough to hold a chisel properly.
The best boomerangs are made from the jigal tree which grows out on the exploration licence area, we also call it the boomerang tree. It takes a few months to make a boomerang as you have to make it very slowly. The wood had to be cut slowly and then soaked in the ground to make it soft enough. The men sing songs to the boomerang as they make it. The boomerangs are used in our corroboree for music today. Men this side use the boomerangs in ceremony, but further West they just use sticks.
Another wood we gather from the exploration licence area is corktree which is used for carving out coolamen carry baskets.
There are little brown fruit, nyili nyili, which grows on a vine that we collect out at the exploration licence area which is like chewing gum growing on the vine. Like the lilies, the children like to find these brown fruit grow when the swamp is full in the wet season. The bush passionfruit grows during the wet season around the swamp.
There is a tree out in the exploration area called dagdagore. The tree has big white hard nuts, when you cut into it there is a white worm inside called bira. We cut the worm in half and eat it. It has a bitter taste.
There are gawa gawa trees which are big and red. The sap is thick and is good medicine for cold and flu. The red bark and smells horrible. We boil the bark up like tea and drink it or use it on sores for them to heal. It tastes bad but it fixes you up.
There are konkerberry trees out at the swamp country, we use the dry wood to spoke our babies to make them strong and use them in a smoking spirit way also.
Because the exploration licence area is inland it has swamps everywhere, it is also soft sand country so we use tree roots and branches to dig when we are making the fire pit nice and deep.
There are little plants we rub the leaves together and it works like whitefella vicks when the children or anyone gets a cold.
This place is the best place to teach the children about how to identify what tree can be used for different purposes and how to track goanna and different animals. It is important to teach the children how to hunt and survive on country. The exploration licence area is a good place to teach the children how to prepare and cook the food.
It takes time to cook food, three to four hours for kangaroo, two hours for goanna. The children have to learn how to catch and cook the animals we hunt properly so that they can survive on their country.
To cook the kangaroo the young people need to learn how to stitch it back up with a stick and use the intestine as string, burn off the skin and dig a hole big enough for the cooking. Out on the exploration licence area the sand if soft and sometimes we use a stick to dig the camp fire hole we forget the shovel.
It is also a good place to take people who are not Nyikina Mangala for cultural training.
Last year we started up a program with the teacher of our school to teach them more about our culture. We had a day when the children from Yurmulun Community took the teachers fishing on the Fitzroy River and they cooked up bush food like goanna and turkey. This year we were going to do more bush trips and hunting and cooking with them.
The country of the exploration licence area is different from the country on the other on the other side of the Willare-Derby road because it is swamp with fresh water good hunting and good vegetation whereas the country west of the road is mostly salty marsh or pastoral lease.
There has also been talk about Nyikina Mangala People running cultural awareness days for all of the people who work at the Curtin Air Base and would be the best place to show all of the hunting and plants that I have talked about.
INTERFERENCE WITH SITES AND PLACES
I know Swamp Damn is important to Nyikina Mangala People and is listed on the Aboriginal Sites Database. I know it was always a good camping area because people from all the different groups like Nykinia Mangala, Bunuba Warra walked across that area for ceremony and family. I believe my uncle registered that site because he knows how important it is.
Nyikina dreaming story Boogardigardi says Wunyunbu, who is the Nyikina Warrior created all Nyikina country. He started at Lanji Lanji, at the mouth of the Fitzroy River west of the exploration licence area. He took the Madjala tree all over the Nyikina country. He sent Bardi back up the Dampier Peninsular. He sent Walangul and Wandjina country. He also sent the mobs their corroboree songs. He sent mobs across where the Exploration Licence Area is, to their country.
DISTURBANCE TO LAND AND WATERS
If the explorer damages the trees and vegetation in the exploration licence area they will destroy the food the animals we live off. In the dry season we hunt each weekend and often after work on Wednesdays afternoon. We rely on the land of the exploration licence area because the other areas close to us, like the Yeeda station pastoral lease, is locked or is marsh and mud flats and there are not many animals or plants there. The country comprising the exploration license area is much richer with food and medicine.
When we go out hunting we bring back enough for everyone in the community to eat for a main meal. The fresh water, jila, around Swamp Dam, Munayarra, which is just outside the exploration licence area, and other fresh water swamp areas in the exploration licence area are where the hunting is good all year round because the animals and plants always have fresh water.
If the water and area around the jila, swamp gets affected by the explorer then the animals will shift away somewhere else and our food source and opportunity to teach our children traditional ways and survival will also go.
Nyikina Mangala rules are that work cannot be done two kilometres from any water sources and springs which are in Nyikina Mangala country. Our rules say work cannot be done five kilometres from around the rivers. These are our rules to look after our country and that is the way Nyikina Mangala people look after their country.
If the explorer wants to use drills drilling down very deep then that might affect the water in the exploration licence area or the special camp site at the north-west corner just outside the exploration licence area. I know there is water in these swamp places all year round and which is why we go there for hunting when other waters dry up.
I know what happens when Mining companies come onto our land and don’t talk to us. In other places in Nyikina Mangala country, I have seen some companies talk to the wrong people and get the go ahead then when we go out to a place where the explorers have been we get a bad shock.
There was one place where the explorer left all of their equipment where they were working. It wasn’t moved until we made a complaint.
Another time when a group graded a road through a hill they damaged an important site which had old people’s our grinding stones.
Just outside of our community there are a heap of sand machines and metal rubbish that has been left there since the 1970’s. We see them all of the time and they are a reminder to us that people who want to come out and work on our country need to talk to us. Those machines stay there even big rains come and wash everything else away.
Companies need to talk to us properly and get the right people to talk.
[Affirmed by Rona Charles on 7 February 2013 in the State of Western Australia, before Alexandra Chalmers (Solicitor)]
1
26
0