Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants; Karajarri Traditional Lands Association (Aboriginal Corporation) on behalf of its members/Western..
[2009] NNTTA 164
•8 December 2009
NATIONAL NATIVE TITLE TRIBUNAL
Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants; Karajarri Traditional Lands Association (Aboriginal Corporation) on behalf of its members/Western Australia/Geotech International Pty Ltd, [2009] NNTTA 164 (8 December 2009)
Application Nos: WO09/152, WO09/153
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, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants (WC99/25) (Nyikina and Mangala native title party)
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Karajarri Traditional Lands Association (Aboriginal Corporation) on behalf of its members (WC00/2) (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: Neville MacPherson, Member
Place: Perth
Date: 8 December 2009
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: Native Title Act 1993 (Cth), ss 29, 109(3), 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (referred to below as Deputy President Sumner)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004) Member O’Dea
Eva J Connors on behalf of Eastern Guruma People/Western Australia/De Beers Australia Exploration Limited, NNTT WO03/934 [2004] NNTTA 94 (19 October 2004), The Hon EM Franklyn QC, Deputy President
Judy Hughes on behalf of Thalanyji/Western Australia/Energy Metals Pty Ltd, NNTT WO04/359 [2005] NNTTA 93 (13 December 2005), Deputy President Sumner
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005) at [41]-[57]
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) Deputy President Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso
Rosas v Northern Territory (2002) 169 FLR 330
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208; (1996) 136 ALR 557
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Representatives of the Ms Hema Hariharan, Kimberley Land Council
native title party: Ms Ania Maszkowski, Kimberley Land Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Greg Abbot, Department of Mines and Petroleum
Representative of the
grantee party: Mr Paul Askin, Geotech International Pty Ltd
REASONS FOR DETERMINATION
On the 19 November 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1811 (‘the proposed licence’) to Geotech International Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 648.21 square kilometres located 139 kilometres south east of Broome, in the Shires of Broome and Derby West Kimberley. It is overlapped by the Karajarri Traditional Lands Association (Aboriginal Corporation) prescribed body corporate (registered on 12 February 2002 following the determination of WC00/2 – Karajarri People (Area A) on 12 February 2002) at 12.81 per cent and by the Nyikina and Mangala registered native title claim (WC99/25, registered from 28 September 1999) at 86.35 per cent.
On 19 March 2009, Daisy Lungunan, John Watson and Others, on behalf of the Nyikina and Mangala Native Title Claimants (‘Nyikina and Mangala native title party’) and the Karajarri Traditional Lands Association (Aboriginal Corporation) (‘Karajarri native title party’), made expedited procedure objection applications to the Tribunal in relation to the proposed licence (Nyikina and Mangala objection designated WO09/152 and Karajarri objection designated WO09/153).
On 7 April 2009, Deputy President (‘DP’) Sumner was appointed as the Member for the purposes of the conduct of the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At an adjourned status conference on 19 August 2009, following a number of conferences and requests to amend directions to allow further time for negotiations, the native title parties’ representative reported that, to date, attempts to negotiate an agreement had been unsuccessful and they did not believe the matters could be resolved by way of an agreement. All parties supported the matters proceeding to inquiry.
The Government and native title parties lodged contentions and evidence in accordance with amended directions. Included in Karajarri native title party’s evidence was one unsworn affidavit. The Government party and grantee party both advised that they had no objections to the Tribunal considering the unsworn affidavit in the making of the determination. The grantee party’s representative indicated at the listing hearing that the grantee party would rely on the evidence submitted by the Government party; however, subsequent to the listing hearing, the grantee party’s representative submitted a brief statement and requested this be considered by the Tribunal for the inquiry. No parties objected to this statement being considered.
At the listing hearing on 1 October 2009, parties reported that all contentions and evidence had been lodged and agreed that the matter could be heard ‘on the papers’. I am satisfied that the objections can be adequately so determined (s 151(2) NTA).
On 22 October 2009, I was appointed by DP Sumner as the Member for the purposes of the conduct of the inquiry.
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation, unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 (WA), which requires approval by the Environmental Officer, DoIR (as noted above, now ‘DMP’), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs to obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), DP Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licence:
Unallocated Crown Land (62.3 per cent overlap)
Dampier Downs Pastoral Lease 3114/844 (37.6 per cent overlap)
File Notation Area 6256 – Release of Unallocated Crown Land for pastoral purposes that adjoins Roebuck and Thangoo pastoral stations (action pending) (0.8 per cent overlap)
Mowla Bluff Indigenous Owned Lease (0.1 per cent overlap)
The documentation also shows 2.5 per cent of the area of the proposed licence is entered on the national heritage list (NHL106063) under the jurisdiction of the Department of Environment, Water, Heritage and the Arts. A further 62.3 per cent of the proposed licence falls under a proposed nature reserve (PNR/218) under the jurisdiction of the Department of Environment and Conservation.
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licence. The closest community, Mowla Bluff, is located some 20 kilometres east of the proposed licence.
Searches of the Department of Indigenous Affairs Register of Aboriginal Heritage Sites under the Aboriginal Heritage Act1972 (WA) (‘AHA’) provided by the Government party reveal 3 sites wholly within the proposed licence:
Site 14397 – Dampier Downs Homestead – Mythological, engraving, water source, permanent register, open access, no restrictions;
Site 14398 – Dampier Downs Homestead – Ceremonial, engraving, quarry, permanent register, closed access, no restrictions; and
Site 14450 – Dampier Downs Homestead – Mythological, painting, permanent register, open access, no restrictions.
The documentation also indicates that, as of 15 June 2009, there are no active tenements within the proposed licence. Five ‘dead’ tenements encroach upon the proposed licence area; three exploration licences which were withdrawn prior to grant and two mining leases active between 1990 and 2007. The following petroleum exploration permits and application encroach upon the proposed licence area:
Exploration permit application 3/07-8 EP (1.6 per cent overlap)
Petroleum exploration permit EP 390 R1 (34.3 per cent overlap)
Petroleum exploration permit EP 391 R1 (33.6 per cent overlap)
Petroleum exploration permit EP 431 (27.2 per cent overlap)
EP 431 was granted under the Petroleum and Geothermal Energy Resources Act 1967 in 2004 after a determination that the act may be done by consent was made by the Tribunal. In regard to EP 390 R1 and EP 391 R1, both were granted in 2009 under the Titles (Validation) and Native Title (Effects of Past Acts) Act 1995 (WA).
The proposed tenement is partially overlapped at 2.1 per cent by the registered Indigenous Land Use Agreement SDWK Nyikina Mangala (WI2005/001), registered on 19 November 2008. The agreement between the Shire of Derby West Kimberly (‘SDWK’) and the Nyikina and Mangala people states that parties consent to all future acts that consist of the construction, operation, use, maintenance and repair by the SDWK, as the relevant local government body, of any of the things listed in section 24KA(2) of the Act.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] conditions 1-4). Additional conditions include:
Providing notification to the pastoral or grazing lessee, of the grant of the licence and of certain exploration activities (conditions 5–6);
Requirements in relation to the area designated Proposed Nature Reserve 218 addressing ingress and egress, Government approval, DoIR (now DMP) inspections and rehabilitation reports (conditions 7-11).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act (WA) 1972 and any Regulations thereunder, the Environmental Protection Act (WA) 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations (WA) 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained;
The land the subject of the proposed licence affects Rare Flora sites (including Rare Flora sites 20569 and 20570) declared under the Wildlife Conservation Act 1950. The licencee is advised to contact the Department of Environment and Conservation for information on the management of Declared Rare Flora (or Priority Listed Flora) present within the tenement area.
Evidence provided by the native title parties
The submissions of the Karajarri native title party include the affidavit of John Hopiga (JH Affidavit), affirmed on 30 September 2009, made in the following terms:
‘Affidavit of John Hopiga
I, John Hopiga, of Purrpurrnganyjarl Community, south of Broome and near Bidyadanga community, in the State of Western Australia, affirm:
1. My name is John Hopiga. I am a Karajarri man and my Aboriginal name is Pankal. I have karimpa skin. I was born in the Native Hospital in Broome in 1960. My rayi spirit comes from Kalayanjartiny a jila (permanent water hole) in the middle of Karajarri traditional country. My jampartu (grandfather), my father, my grandmothers and my mother passed down their knowledge of Karajarri law and culture to me.
2. I am now one of the senior Karajarri law men and my mother Edna Hopiga Wapijawa was a named applicant for the Karajarri Native Title Determination. My mother and father have now passed away and under our Law I have authority to speak about Karajarri land matters.
3. I know the area where the Geotech exploration company has applied for Exploration Licences Number E04/1811, “the Exploration Licence Area” because I have been shown maps of the application area. I have travelled all around my country with my bosses, around this area where the exploration lease is, most recently during the preparation for our Native Title hearings.
4. The area is on UCL land, part of our native title lands, in the north east in Nawurtu Karajarri country. It is part of pirra – the bush side of our country.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5. The Exploration Licence Area falls within the Karajarri native title determined lands, the country that belongs to all the Karajarri people, that land that was put there from pukarrikarra (the dreamtime) and which the Federal Court has recognized as Karajarri Native Title lands. We have full native title rights in this UCL land.
6. This is an important area where my old people come from. We have some important water holes there like Narrkunja where there is a pulany (water serpent) that can cause a lot of damage to us and our country if not respected. We still go there and look after that country.
7. The Exploration Licence Area is in an area beyond the pastoral lease where my people and I often go hunting for kangaroo and goanna and other kuwi (meat).
8. We do seasonal burning in Exploration Licence Area for hunting purposes and to look after the country
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
9. My country and my Law comes from Pukarrikarra and passed down to me. I know my Law and it is my responsibility to look after the country. I know this area very well.
10. The area covered by the Geotech Exploration Licence Area as an area where my old people come from. We have some important water holes there like Narrkunja where there is a pulany (water serpent that resides in water holes) that can cause a lot of damage to us and our country if not respected.
11. The Exploration Licence Area also has an area called Mantikarrakarpu, near the old Dampier Downs homestead on the edge of the Edgar Ranges. This is where my old people used to have ceremonies. Our people and our neighbours all used to meet up there during Law time. People would walk there from all over and bring the malurlu (initiates) boys for ceremony. I was told about this by my uncles and my jampartu (grandfathers.
12. Many of these places are not marked on the whitefella maps or easy to find, and only some of them are listed on Aboriginal Sites Register. Under our Law it is very important that mining companies do not damage these places or enter them without our permission. We worry for these places and want to make sure that they do not get destroyed or disturbed.
13. Under our Law it is very dangerous for walangu (strangers) to go into our country, and to go near cultural sites without our permission and without guides. It is dangerous for them and it is dangerous for us.
MAJOR DISTURBANCE TO LAND AND WATER
14. I am aware of the activities that the grantee party could do on the Exploration Licence Area under the Mining Act if they are granted the exploration licence.
15. It is dangerous for walagu (strangers) to come into the country, especially where there are pulany, without permission and guidance. It is dangerous for them and for us and our families. We also worry about these places getting damaged. We worry and it is like a relative has died. It is the same thing for country.
16. We have won our Native Title and we have full rights over this area, which is UCL. We got Native Title so that we could protect our country and so that other people who want to come on to our country do it in the right way. They must ask first and we want them to sign an Agreement so that we can protect the places and so that they respect our Native Title Rights.
The Karajarri native title party has also provided an unsworn statement made by Wittadong Mulardy in the form of an affidavit (WM Affidavit). On submission of the statement, the native title party representative advised the Tribunal that she believed there would be an opportunity in approximately one month to meet with Ms Mulardy to complete affirmation of the document. Despite this advice, an affirmed affidavit has not been provided. The history of the matter shows that several amendments were made to the native title party’s compliance dates due to difficulties in contacting Traditional Owners and I can infer that logistical difficulties precluded this ‘affidavit’ being affirmed. Section 109(3) of the Act provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence. Further, no party has contested the admissibility of the statement and the Tribunal has previously considered unsigned statements (see for example Eva J Connors on behalf of Eastern Guruma People/ Western Australia/ De Beers Australia Exploration Limited, NNTT WO03/934 [2004] NNTTA 94 (19 October 2004), The Hon EM Franklyn QC, Deputy President and Judy Hughes on behalf of Thalanyji/Western Australia/Energy Metals Pty Ltd, NNTT WO04/359 [2005] NNTTA 93 (13 December 2005), DP Sumner). I consider it appropriate to do so in this matter. The contents of the statement are set out hereunder:
‘Affidavit of Wittadong Mulardy
I, Wittadong Mulardy, of Mijimilmiya Community, south of Broome, in the State of Western Australia, affirm:
1. My name is Wittadong Mulardy. I am a senior Karajarri woman and my Aboriginal name is Mintina. I have karimpa skin.
2. I was born near the Bidyadanga soak about 80 years ago. I don’t know the exact date as my parents were bush people. It was before the La Grange mission was set up. There was only the ration depot near the old La Grange post office.
3. My yatangkal (spirit) comes from Wanamalyanu, on the east side of the Great northern highway, on old Bohemia station (now part of Munro Springs station).
4. My father is Larry Junkany and he comes from the north east part of Karajarri country. He is Nawartu Karajarri and he was born in the bush and lived in the bush most of his life. His run was from Manala, up to Narrkanja. He knew all the water places from that area, he sung about them and he taught me about them.
5. He came down to the coast and picked up his promised wife, my mother Alice Pirli. In fact he married my two mothers – my mum and her sister Edna Hopiga. He took my mum back up to his country when she was a little girl so that she didn’t get picked up by welfare. He grew her up there and when she came back to Mijimilmiya (near Bidyadanga) my mum was pregnant with me.
6. My father’s old people were mapan people (traditional healers) and when I was little I got very sick. It might have been whooping cough. My father took me bush to see his people who were living in the north east Karajarri country near Manala and they fixed me up. They kept me there until I got better. Those mapan people never came in. They stayed out bush and died there.
7. I grew up in the bush living off kangaroo meat, sugar bag and kajartu, a seed that we grind up for damper and cook in the fire.
8. The area of the Geotech exploration tenement is in the north east of Karajarri country, on the pirra desert side towards Dampier Downs pastoral lease. My jampartu (grandfather), my father, my grandmothers and my mother all passed down their knowledge of Karajarri law and culture to me. They taught me about our country.
9. I now live in Wanamalnyanu community which is to north east of the exploration licence area. I am one of the senior Karajarri women, and was one of the named applicants for the Karajarri Native Title Determination. Under our Law I have authority to speak about Karajarri matters.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
10. I know the area where the Geotech Exploration Company have applied for Exploration Licence Number E04/1811, “the Exploration Licence Area”, very well because I have been shown maps of the application area.
11. The area is on UCL land in the north east of Karajarri country. It is part of pirra – the bush side of our country. I have been to the area and my father taught me about the area. It is located near Mantikarrakarpu a big ceremony place where they took malalu. My people (Karajarri) and Nyikina and Yawuru and Mangala, (neighbouring language groups) would walk the boys to Dampier Downs from all over. They meet themselves there for Law; for ceremony time.
12. This area was where we lived off palatany water. The ngapa (water) filled up in the tree trunk, might be a jikily tree (bauhinia tree) during wet season and then plugged up for the next person because there was not many water places in this part of the country. We lived off that palatany ngapa (water). My father knew where it was and he showed me.
13. The Exploration Licence Area is in our Karajarri native title determined lands, the country belongs to all the Karajarri people, that land that was put there from Pukarrikarra (the dreamtime). We have to protect that country.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
14. The area is on the UCL land to the north east. There are some important jilas (permanent water holes) in that area.
15. My country and my Law comes from Pukarrikarra and passed down to me. I know my Law and it is my responsibility to look after the country. I know this area very well.
16. This licence is very close to some significant cultural sites. These are very sacred to us.
17. My father taught me properly about this country. He taught me where I can go and where others can’t go and he told me why. This area is near Manala and is my grandfather’s country and he used to roam around here. They used to run away from the stations and missions sometimes, or when they got sick, and go and live in the bush. This is the area they used to come to.
18. Under our Law it is very dangerous for strangers to go into our country, and to go near these cultural sites without our permission. It is dangerous for them and it is dangerous for us. You cannot find these places without Karajarri people because they are not marked on maps or in the Aboriginal site register.
19. I worry for my grandfather’s country and it is my responsibility to look after this place. I want to make sure that the country is looked after and that sites do not get destroyed or disturbed.
MAJOR DISTURBANCE TO LAND AND WATER
20. I am aware of the activities which the exploration company could do on the Exploration Licence Area under the Mining Act if they are granted the exploration licence.
21. If walangu (strangers) damage a special site it will make us sad and worried, it is as if someone has died. It is the country has died.
22. We have won Native Title and we have full rights over this area, which is UCL. We got Native Title so that we could protect our country and so that other people who want to come on to our country do it in the right way. They must ask first and we want them to sign an Agreement so that we can protect the places and so that they respect our Native Title Rights.’
The evidence of Mr Hopiga and Ms Mulardy is uncontested and I accept it. Mr Hopiga deposes to be one of the senior Karajarri law men while Ms Mulardy deposes to be a senior Karajarri woman. The record shows that Ms Mulardy was a named applicant on the Karajarri People’s native title determination application. It also shows that Ms Edna Hopiga, who Mr Hopiga attests is his mother, was a named applicant to this determination and I accept that Mr Hopiga is a relative of this Applicant. On the basis of the statements contained in the affidavits, I am satisfied that both deponents have the requisite authority to speak on behalf of the native title party and properly reflect the traditions and knowledge of the native title party concerning the proposed licence.
A single statement of contentions was lodged by the Kimberley Land Council on behalf of both the Karajarri and Nyikina and Mangala native title party. No supporting evidence was provided by Nyikina and Mangala and the statement of contentions contains very little material that could be regarded as evidence.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interferences) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 ([23])) (‘Smith’). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 ([26])). The assessment is also contextual, taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
I can infer from the fact that both mining leases and petroleum exploration permits have been granted over at least part of the proposed licence area that limited prior activity has already occurred. However, the evidence does not suggest that this is an area of considerable prior mining or exploration activity which will have already significantly interfered with the native title parties’ community or social activities. A large area of the proposed licence is unallocated crown land, including the entire Karajarri portion of the proposed licence. This suggests little impediment to any community or social activities of the native title parties in that area; however, there is also a significant overlap with Dampier Downs pastoral lease which has likely affected the native title parties to some extent. There is a proposal for a portion of the tenure underlying the proposed licence area to be converted to pastoral lease; however, no evidence has been provided as to the certainty and timing of this proposal. If the amalgamation of tenure were to occur, native title rights and interests would co-exist with the rights of the pastoralist, and social and community activities may well be affected to the extent of any inconsistency. However, the principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them.
In his affidavit, Mr Hopiga deposes that the proposed licence is ‘land that was put there from pukarrikarra (the dreamtime)’ (JH Affidavit para 5) and that ‘we still go there and look after that country’ (JH Affidavit para 6). Mr Hopiga deposes to use the proposed licence as an area to go hunting stating that ‘my people and I often go hunting for kangaroo and goanna and other kuwi (meat)’ (JH Affidavit para 7). The deponent further states that the proposed licence is an area used to undertake seasonal burning (JH Affidavit para 8). Ms Mulardy states that the Karajarri portion of the proposed licence area is located near a big ceremony place where ‘my people (Karajarri) and Nyikina and Yawuru and Mangala, (neighbouring language groups) would walk the boys to Dampier Downs from all over. They meet themselves there for Law; for ceremony time.’ (WM Affidavit para 11). Ms Mulardy also states she ‘grew up in the bush living off kangaroo meat, sugar bag and kajartu, a seed that we grind up for damper and cook in the fire’ (WM Affidavit para 7).
I must now assess whether the grant of the proposed licence is likely to interfere with the carrying on of the social and community activities evidenced by the native title parties. The test to be applied here is the ‘real risk’ test.
The deponents appear to have a historical association with the country and, on their uncontested evidence, are traditional owners of that country. The evidence of Mr Hopiga indicates contemporary use on the proposed licence, stating that he ‘often’ (JH Affidavit para 7) goes hunting on the proposed licence. However, he also states that he has travelled around the area of the proposed licence ‘most recently during the preparation for our Native Title hearings.’ This statement lacks specific information on the nature of these hearings; however, an inference can be made that the hearings related to the Karajarri native title determination which took place in 2004, in which case this statement does not support the assertion of frequent or contemporary use of the area by Mr Hopiga.
Ms Mulardy’s stated activities are said to have occurred in the past and she provides no indication of contemporary activities taking place. While Ms Mulardy has provided types of bush tucker common to her, it is the act of gathering this food that would evidence community or social activities taking place and there is no detail of this provided. The Tribunal acknowledges that the Karajarri native title party’s claim has been determined and that such party has exclusive possession over the area of the proposed licence and, as such, can exercise native title rights to the fullest extent. However, the evidence given by the deponents in relation to ceremonies, hunting, burning and the gathering of bush tucker lacks specificity in relation to the number of members of the native title party who use the area for community and social activities, the frequency in which these activities take place, or the precise locations within the proposed licence that are regularly used for such activities.
The Nyikina and Mangala native title party cover the majority of the proposed licence area with a 86.35 per cent overlap. As previously stated, the Nyikina and Mangala native title party provided little that could be regarded as evidence in their statement of contentions and no supporting documents were provided. As such, there is insufficient evidence for me to establish the conduct of any community or social activities within the Nyikina and Mangala portion of the proposed tenement.
The contentions relating to both objectors state the native title parties live and camp and conduct their community within the tenement area. They say they conduct ceremonies, hunt and collect traditional foods and products as well as look after paintings, burial places and sites of importance and significance within the tenement area (NTP contentions para 13). Even if I accept this statement as evidence coming directly from members of the native title parties (which it does not), it does not provide sufficient basis for a finding that there is likely to be direct interference with their community or social activities. The statement is not specific as to the nature, location, frequency or the number of people involved in the activities. Additionally, there are no communities within the tenement area and Tribunal mapping indicates the nearest community to be Mowla Bluff, located some 20 kilometres east of the proposed licence. The Mijimilmiya Community and Purrpurrnganyjarl Community, where the two deponents reside, are both located over 100 kilometres south-west of the proposed licence.
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place, as significant ground disturbing exploration will only occur at any one time over a small area. Government party documentation reveals that the size of the proposed licence is 648.21 square kilometres. The Nyikina and Mangala native title claim area is approximately 27251.703 square kilometres, while the Karajarri native title determined area is approximately 24691.141 square kilometres, both being areas much larger than the area of the proposed licence. Thus, it is unlikely that exploration on the area of the proposed licence will impact on any community and social activities of the native title parties, as contemplated in s 237(a) of the Act, which I can infer are likely to be carried out over a broader area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso (now DP Sosso) (at [43]-[44])).
With respect to the native title parties’ reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208; (1996) 136 ALR 557, that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions 14), I adopt the findings of DP Sumner in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.
Taking all these factors into account, I find that the exploration activity will not directly interfere with the community or social activities of either native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The next issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. Recorded on the Register kept under the AHA are two open access sites and one closed access site within the proposed licence area, but this does not mean there may not be other sites or areas of particular significance 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. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (most recently, in Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Member O’Dea, (‘Butcher Cherel’) (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The evidence of the Karajarri native title party attests to the fact that the following areas are sites of significance to them within or in the vicinity of the tenement:
·Kalayanjartiny – ‘My rayi spirit comes from Kalayanjartiny – a jila (permanent water hole) in the middle of Karajarri traditional country’ (JH Affidavit para 1)
·‘We have some important water holes there like Narrkunja where there is a pulany (water serpent)’ (JH Affidavit para 6 and 10)
·Mantikarrakarpu – an area ‘near the old Dampier Downs homestead on the edge of the Edgar Ranges’ used for initiation ceremonies (JH Affidavit para 11 and also mentioned in WM Affidavit para 11)
·Wanamalyanu – ‘My yatangal (spirit) comes from Wanamalyanu, on the east side of the Great northern highway, on old Bohemia station (now part of Munro Springs station’ (WM Affidavit para 3)
·‘This area was where we lived off palatany water’ which ‘filled up in the tree trunk...during the wet season’ (WM Affidavit para 12)
·‘The area is on the UCL land to the north east. There are some important jilas (permanent water holes) in that area’ (WM Affidavit para 14)
·‘This licence is very close to some very significant cultural sites. These are very sacred to us’ (WM Affidavit para 16)
· Manala is Ms Mulardy’s grandfather’s country who ‘used to run away from the stations and mission sometimes, or when they got sick, and go and live in the bush. This is the area they used to come to’ (WM Affidavit para 17)
·‘It is very dangerous for walangu (strangers) to go into our country, and to go near cultural sites without our permission and without guides. It is dangerous for them and it is dangerous for us’ (JH Affidavit para 13)
The evidence provided by the Karajarri native title party in relation to sites is uncontested, and I am satisfied that there are likely to be sites of particular significance to them in accordance with their traditional laws and customs. However, in matters of this nature, there must be evidence of sufficient specificity to form a conclusion that any areas or sites of particular significance to the native title parties are located within the tenement area. The Tribunal’s geospatial specialists have been unable to locate the water hole Mr Hopiga names Kalayanjartiny; however, he does say it is located in the middle of Karajarri country. As the Karajarri determined area is some 100 kilometres or more in width and the proposed licence is located on the far north east edge of the Karajarri determined area, I can infer that this site falls well beyond the boundaries of the proposed licence and is beyond the scope of this determination. The same can be said for Wanamalyanu, which Ms Mulardy describes as being located on the east side of the Great Northern Highway on Munro Springs Station. According to Tribunal mapping, Munro Springs Station is located some 150 kilometres south west of the proposed licence, so again I infer this site is irrelevant for the making of this determination.
Both Mr Hopiga and Ms Mulardy make reference to Mantikarrakarpu, a place used for initiation ceremonies. While neither deponent provides specific details of its location, Mr Hopiga does state it is located ‘near the old Dampier Downs homestead on the edge of the Edgar Ranges’ (JH Affidavit para 11). The location of the aforementioned registered sites within the proposed licence area are consistent with Mr Hopiga’s statement, with three sites located near the Dampier Downs Homestead, including a closed access ceremonial site with the registered name of Dampier Downs Homestead. I believe I can safely infer that this is the ceremonial ground referred to by the deponents. Dampier Downs Homestead is also the name of the other two registered sites, and I am satisfied that Dampier Downs Homestead is an area of particular significance to the Karajarri native title party in accordance with their traditions. All three AHA registered sites fall within the portion of the proposed licence area overlapped by the Nyikina and Mangala native title party; however, I accept from Ms Mulardy’s statement that these sites were historically used by both groups for ceremony.
Both deponents make reference to important water holes in the proposed licence area, with Mr Hopiga naming Narrkunja as one such place. Ms Mulardy also speaks of an area that was used to collect water from trees during the wet season; however, no specific information is provided to indicate the location of these sites. On the evidence provided, I can only find with any degree of certainty that the site known as Mantikarrakarpu is both particularly significant and located within the proposed licence area. I am unable to make a finding as to whether the other sites referenced by the deponents are the same as those listed on the Register.
I contrast the evidence adduced in this matter with that which underlay the findings in other matters in the Kimberley region (Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004) Member O’Dea and Banjo Wurunmurra and others on behalf of Bunuba Native title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005) DP Sumner). In those matters, there was evidence of a number of specifically located sites and evidence of the basis of the assertion of their particular significance to the native title party.
In relation to the evidence of Mr Hopiga that sites can be ‘very dangerous for strangers’ (JH Affidavit para 13), I find that this information, too, lacks specificity. Although Mr Hopiga deposes that ‘it is very dangerous for walangu (strangers) to go into our country, and to go near cultural sites without our permission and without guides. It is dangerous for them and it is dangerous for us’, the location of the sites referred to is not apparent. Accordingly, I am unable to make a finding that any site within the proposed licence area is ‘dangerous’.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein). In Butcher Cherel at [81]-[91], Member O’Dea canvassed various determinations in which the protective provisions of the AHA were considered in light of the intentions of the grantee party in particular matters, which I adopt for the purpose of this determination. In that matter, the Tribunal found the AHA regime was likely to be effective because of the extensive evidence of the intentions of the grantee party, including its intention to conduct a heritage survey. It is a matter of fact, based on consideration of the evidence in each case, whether the regulatory regime under the AHA will make interference with an area or site of particular significance unlikely, taking account of what the grantee party intends to do, including in relation to the scope of exploration activities, site protection and consultation with the native title party.
In this case, the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the proposed licence. In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
However, given that it is not apparent from the evidence where the sites mentioned by the Karajarri native title party are located, the Tribunal is unable to make a finding that they are likely to be interfered with. The Tribunal notes that the grantee party has not provided a work plan; however, the statement provided by the grantee for consideration in the making of this determination clearly evidences that it would be willing to enter into a heritage protection agreement with the native title parties if certain clauses relating to costs were removed. This statement, which is uncontested, indicates an awareness on the grantee party’s part of the need to consider heritage protection in the proposed licence area.
Taking all these factors into account, I am satisfied that the presumption of regularity is applicable in this matter and that interference with sites of particular significance by the exploration activity is unlikely.
Major disturbance to land and waters (s 237(c))
Lastly, 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 (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005) at [41]-[57] and Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 (‘Dann’)).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place, as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 386-388 [74]-[79] and the cases cited therein).
The native title parties contend that major disturbance would be likely to occur as a result of the activities permitted by the grant of exploration licence, and lists those potentially damaging activities as being reverse circulation drilling in areas of hypersaline ground water, diamond core drilling including the creation of drill holes, excavation of up to 1000 tonnes of material and creation of infrastructure associated with exploration activities. However, there is no evidence there will not be compliance with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4). Further, such activities, properly regulated, are not likely to cause major disturbance from the perspective of the Australian community, including the Aboriginal community.
The more significant question in relation to this limb of s 237 is the issue raised by Mr Hopiga and Mr Mulardy to the effect that, in accordance with their law, it is necessary for the grantee party to consult with them before entering that area as ‘if walangu (strangers) damage a special site it will make us sad and worried, it is as if someone has died. It is the country has died’ (WM Affidavit para 21). The native title parties, in their contentions, assert that under the law of the native title parties, ‘anyone who is not from the country included in the tenement area must ask permission before coming onto country’ (NTP Contention 40(a-b)). Such consultation is said to be required from the perspective of the protection of the sites of significance on country.
The focus of the enquiry in s 237(c) is in relation to ‘major disturbance’ (see Dann). In evaluating major disturbance, the Tribunal has accepted that it may give weight to the cultural concerns to a group of native title holders. However, the starting point and precondition of the enquiry is evidence of the physical disturbance the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural considerations alone cannot form the basis of a finding of major disturbance. There must be some physical disturbance as a pre condition (see Wilcox J in Dann at 395). In this matter, the physical disturbance to the area will be confined to the carrying out of the exploration activities under the terms of the licence granted. It has already been found that, in the circumstances, it is unlikely that those activities will cause major disturbance. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title parties in relation to any offence that the grantee party’s entering any land without first speaking to the native title parties may cause, is insufficient to establish that such major disturbance is likely to occur.
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1811 to Geotech International Pty Ltd is an act attracting the expedited procedure.
Neville MacPherson
Member
8 December 2009
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