Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants/Western Australia/Redgrove Investments Pty Ltd
[2008] NNTTA 23
•18 February 2008
NATIONAL NATIVE TITLE TRIBUNAL
Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants/Western Australia/Redgrove Investments Pty Ltd, [2008] NNTTA 23 (18 February 2008)
Application No: WO07/256
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants (WC99/25) (native title party)
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The State of Western Australia (Government party)
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Redgrove Investments Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE
EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 18 February 2008
Catchwords: Native title – future act – 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: Native Title Act 1993 (Cth), ss 29, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA)
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
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Delores Cheinmora & Others on behalf of Balanggarra Native Title Claimants/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/447, [2008] NNTTA 8 (21 January 2008), Hon C J Sumner
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
Nyikina and Mangala Peoples/Western Australia/Rey Resources Ltd, NNTT WF07/18 and 19, [2007] NNTTA 78 (11 September 2007), John Catlin
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
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/Pentry Pty Ltd/Anthony Watson on behalf of the Nykina and Mangala Native title Claim Group (WC99/25), NNTT WO99/738, [2001] NNTTA 55 (26 June 2001) Ms Jennifer Stuckey-Clarke
Representatives of the Mr Robert Houston, Solicitor, Kimberley Land Council
native title party: Ms Ania Maszkowski, Kimberley Land Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Jan Mason, Department of Industry and Resources
Representative of the
grantee party: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd
REASONS FOR DETERMINATION
On the 6 December 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1611 (‘the proposed licence’) to Redgrove Investments 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 45.48 square kilometres located 101 kilometres westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley. It is overlapped by the registered claim of the Nyikina and Mangala (WC99/25, registered from 28 September 1999) at 98.8 per cent and the Yungngora People’s (Noonkanbah) determination area (determined 27 April 2007) at 1.2 per cent.
On 5 April 2007 an objection to the expedited procedure statement was lodged with the Tribunal by Daisy Lungunan, John Watson and Others on behalf of the Nyikina and Mangala Native Title Claimants WC99/25 (‘the native title party’) in respect of the proposed licence. No objection was lodged on behalf of the Yungngora People.
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and evidence 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 7 November 2007, following a number of conferences and requests to amend directions to allow further time for negotiations, the grantee party requested the matter proceed to inquiry with negotiations to continue in the interim. On 16 November 2007, with the consent of all parties, the native title party was granted a further extension to directions with its compliance to be on or before 10 December 2007.
In accordance with amended directions, the Government party lodged its contentions and evidence by 22 November 2007, the native title party on 10 December 2007 and the grantee party on 17 December 2007. At the listing hearing on 20 December 2007, 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 objection can be adequately determined on the papers (s 151(2) NTA).
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’), the Tribunal considered the applicable legal principles (at [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 [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that the Mining Act has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been modified.
The modified conditions are stronger than those considered in Walley. In particular Standard Condition 2 now contains the additional requirement 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 Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act (inserted post Walley) which requires approval by the Environmental Officer DoIR 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 (‘DIA’) and obtain advice from them 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), Hon C J 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) rejected an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision has now been appealed to the Full Federal Court and judgment was reserved on 16 November 2007.
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licence:
Liveringa Pastoral Lease I087500 (92.7 per cent overlap)
Petroleum Exploration Permit Application 2/07-8 (62.7 per cent overlap)
Petroleum Exploration Permit 458 (37.3 per cent overlap)
Common Reserve 23226 - Department of Planning and Infrastructure Stock Route - Fitzroy Crossing to Nobby’s Well (6 per cent overlap)
Department of Water Camballin Irrigation District 9 (2.5 per cent overlap)
Noonkanbah Indigenous Owned Lease 3114/576 (1.2 per cent overlap)
The documentation notes that there are no Aboriginal communities within or adjacent to the proposed licence.
Searches of the Department of Indigenous Affairs (‘DIA’) Register of Aboriginal Heritage Sites under the Aboriginal Heritage Act 1972 (WA) provided by the Government party reveal three sites within the proposed licence:
Site 14217 - Dunggaba Complex 3 located on or near Mount Gytha - mythological, permanent register, open access, no gender restrictions;
Site 14218 - Dunggaba Complex 4 located on or near Machell Pyramid - mythological, permanent register, open access, no gender restrictions; and
Site 14227 - Walanggari 3 located in the vicinity of Mount Abbott - mythological, skeletal material/burial, painting, permanent register, closed access, no gender restrictions
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 are the following:
Providing notification to the pastoral or grazing lessee, of the grant of the licence and of certain exploration activities (conditions 5–6)
No interference with Geodetic Survey Stations R359, R359T and R360 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 7)
Consent to mine on Fitzroy Crossing to Nobbys Well Stock Route Reserve 23226 subject to no mining operations being carried out on the Reserve which restrict the use of the Reserve (condition 8)
Department of Water restrictions and approval requirements over the Camballin Irrigation District including written notification and approval of proposed activities, disturbance of waterways, wetland or fringing, rights of ingress to and egress from, storage of hazardous substances, abstraction of water, and activities on existing or designated future irrigation districts (conditions 9-15)
Excavation activities prohibited on existing or designated future irrigation districts, or on any area of land within 50 metres of the banks of an irrigation channel, drain, wetland or watercourse unless undertaken with the written permission of the Director, Environment, DoIR and the Department of Water (condition 16)
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 Water and Rivers Commission Act (WA) 1995 and any Regulations thereunder, the Rights in Water and Irrigation Act (WA) 1914, 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 this licence affects an area under quarantine for Noogoora Burr (under the provisions of the Agriculture and Related Resources Protection Act (WA) 1976). Access to the quarantine area is subject to the Licensee obtaining an entry permit from the Kununurra Regional Office of the Agriculture Protection Board of WA.
Government party documentation also notes there has been some past exploration activity over the proposed licence: two temporary reserves granted in 1973 and forfeited in 1974 overlapping at 41.7 and 58.3 per cent each; 20 mineral claims between 1977-1983 overlapping at no more than 2.6 per cent each; one exploration licence granted in 1996 and surrendered in 1997 overlapping at 41.1 per cent; one prospecting licence granted in 1996 and surrendered in 1998 overlapping at 1.3 per cent; one prospecting licence granted in 1997 and forfeited in 1999 overlapping at 2.6 per cent; one exploration licence (E04/1137) granted in 2001 and surrendered in 2006 overlapping at 74.4 per cent; one current exploration licence (E04/1525) overlapping at 7.1 per cent; and one petroleum exploration permit overlapping at 37.3 per cent.
In relation to E04/1525, on 2 March 2006 the native title party lodged an objection to the expedited procedure (WO06/266) which was withdrawn on 16 August 2007 as the grantee for that matter and the native title party successfully negotiated a heritage protection agreement. In relation to petroleum exploration permit 458 (formerly application 11/04-5), the native title party reached an ancillary agreement with the grantee party for that matter and a future act determination that the act may be done was made by consent by the Tribunal on 11 September 2007 (Nyikina and Mangala Peoples/Western Australia/Rey Resources Ltd, NNTT WF07/18 and 19, [2007] NNTTA 78 (11 September 2007), John Catlin) on the basis that logistical difficulties precluded the collection of all signatures to a State Deed in a timely manner. In relation to E04/1137, on 13 December 1999 the native title party lodged an objection to the expedited procedure (WO99/738) which proceeded to inquiry as an agreement could not be reached. On 26 June 2001 the Tribunal determined that the expedited procedure was attracted (Western Australia/Pentry Pty Ltd/Anthony Watson on behalf of the Nykina and Mangala Native title Claim Group (WC99/25), NNTT WO99/738, [2001] NNTTA 55 (26 June 2001), Ms Jennifer Stuckey-Clarke) (‘Pentry Pty Ltd’). In that matter, the native title party lodged one affidavit by Mr Peter Dann sworn 18 August 2000 (paragraph [11]) in the following terms:
‘I, Peter Dann of Looma Community, via Derby, Western Australia, Pensioner, say on oath as follows:
1.I am a registered native title claimant for the area for the area(sic) where the proposed exploration licence is located and I can speak for that country.
2.I was born in that area on the old Paradise Station. That is my father’s country and I grew up in the bush around there.
3. I live nearby in Looma Community now but I’m still trying to get a living area in that country so I can go back and live there.
4.I have seen the map of where the mining company wants to go and understand where they will be working. That is my country and I know it very well. There are important places for us in that area and I’m worried that the mining company might do something to those places.
LIKELIHOOD TO DIRECTLY INTERFERE WITH SITES OR AREAS OF PARTICULAR SIGNIFICANCE
5.There is a place inside that area where the mining company wants to go called Durdurdu where there is a hot spring. There are cave paintings there and we built a fence around it to protect that place. This area is very important, that’s why we built a fence around that cave. This area is part of a story about snake fighting with a blue-tongued lizard. The mining company should check with us first about that area so we can make sure they won’t do any damage.
6.In this area there are some old gravesites. I know where these are and I could go with the mining company to make sure they go around them. I’ve done some of this work with mining companies in the early nineties.
7.It’s my job to look after those places because I’m from that country.
LIKELIHOOD TO DIRECTLY INTERFERE WITH THE CARRYING ON OF THE COMMUNITY OR SOCIAL ACTIVITIES
8.I have taught my children about the important places and the bush tucker in that area. We still visit that area for hunting, bush tucker and looking after the country. We go camping there with all my family and hunt for goanna, snake and kangaroo. There’s lots of bush tucker in that tenement area.
9.I’m worried that the mining company could stop us from going there.
LIKELIHOOD OF MAJOR DISTURBANCE TO ANY LAND OR WATERS IN THE AREA
10.When I was young I saw mining mob working. When they finished they didn’t cover up those holes and just left them there. I don’t want that to happen again.
11.I know that the mining mob are supposed to clean up the country and cover those holes that they drill but I know that they don’t always do that and sometimes leave a big mess.
12.If the mining company talks to us first we can stop these things from happening.’
Based on the evidence of Mr Dann (which was the only evidence submitted by the native title party), Ms Stuckey Clarke concluded in Pentry Pty Ltd that:
‘Section 237(a) Interference with Community or Social Activities …..
[34] In my view, the affidavit of Peter Dann does not provide sufficiently specific or relevant evidence of the carrying on of community or social activities by the holders of native title on the land comprising the proposed tenement. His evidence was general and non-specific to the effect that the “area” identified on the unidentified “map” was used for hunting and food-gathering, for camping and activities involving the teaching of traditional laws and customs to children (para 8). No evidence is given of the frequency of these activities or any reference given to the specific sites at which these activities are conducted.
[35]In these circumstances, I am of the view that there is insufficient specific and relevant evidence adduced by the objectors on the basis of which I am able to hold that there is a real chance that the grant of the proposed tenement will directly interfere with the carrying on of community or social activities of the holders of native title on the land comprising the proposed tenement. I come to this view noting, however, that it may well be the case that specific and relevant evidence could well have been adduced by them if appropriate attention had been paid to the preparation of evidence of sufficient specificity, relevance and detail.
Section 237(b) Interference with Areas or Sites of Particular Significance ….
[38]There is no site on the Register of Aboriginal Sites as disclosed in the State’s documents.
[39]However, the evidence in Peter Dann’s affidavit at paras 5 & 6 refers to his personal knowledge of the existence of burial sites on the area of the proposed tenement and to an area called Durdurdu where there are cave paintings and gravesites. In those paragraphs he deposes to the existence of these sites and to their importance which is of particular significance to him and the claimant group (paras. 4-7) and, in my view, to a significance which is particular in the requisite sense.
[40]If this evidence could be accepted, I would have found that Peter Dann has sufficiently indicated his personal knowledge of the existence of sites consistent with the sites having “particular significance” to him and in accordance with their traditions, to the persons who are the holders of native title in relation to the claimed land, on the area of the proposed tenement. However, reference to the Tribunal map indicates that the area called “Dududu” is an Aboriginal site approximately 30 kilometres away from the proposed tenement. I infer that it is this area to which Peter Dann refers in paragraphs 5-7 as “Durdurdu”. The failure to annex "the map” to which he refers in para 4 generates doubt as to the deponent’s understanding of the area of the proposed tenement and this doubt further justifies the inference. Further, no submissions were made by the objectors in respect of the Tribunal map. Therefore on the evidence before me I conclude that the sites referred to in paragraphs 5-7 of his affidavit are not proven to be on the land comprising the proposed tenement. Thus, I am unable to find that these are any sites of particular significance on the proposed tenement.
[41]Consequently, the issue of likelihood or otherwise of interference with any such area or site for determination does not arise. However, I express my view on that issue. In my view, the presumption of regularity is not rebutted by any evidence led by objectors. Evidence that sites have been damaged by other entities in the past in an area which may, or may not, be coincident with the proposed tenement does not rebut the presumption that the present grantee, in exercising the rights created by the grant, would not act in breach of its licence conditions or act in defiance of the various statutes and regulations to which the grant is subject. Further, although it is contended by the objector that the existing legislation is inadequate to protect such sites, there is no evidence before me on the basis of which that contention might be made out.’
For the present matter, the native title party’s submissions include the affidavits of John Watson affirmed 2 December 2007, Annie Milgin and Jimmy Milgin (affirmed 9 January 2008) made in the following terms:
‘AFFIDAVIT OF JOHN WATSON
I, John Watson of Jarlmadangah-Burru Community solemnly and sincerely declare and affirm THAT:
1.My name is John Watson. I was born on Mount Anderson Station in 1940.
2.I am a Named Applicant and one of the senior people for the Nykina and Mangala Native Title Determination Application (WAG 6099/98)
3.I have a fair idea about the country which includes the exploration tenement. I wasn’t born there but I worked around that part of the country. I go there very often hunting and camping. Peter Dann goes there just about every week. The station people give us access. We have good relations with them.
4.I am aware of the activities which the grantee party could perform under the terms of the exploration licence, if granted. They haven’t spoken to people to do the exploration out there. They want to go out there without talking to us first. All mining companies have to go through the Kimberley Land Council, sign an agreement and then speak to the Nykina Mangala people.
Interference with community and social life
5.The exploration licence area is on Nykina Mangala country.
6.If we don’t know what they are doing on our country and digging holes and cutting lines it will be no good. There will be erosion and damage to the country. We want to look after country and for them to tell us what they are after.
7.There are Nykina Mangala people that live there in the area of the exploration tenement. They hunt, fish and get bush tucker in this area. There are waterholes this time of the year that are important to people.
8.We go out and get turkey, kangaroo and emu on this country. We also get bush oranges and bush onions in this area.
Interference with sites of particular significance
9.There are very significant places in the area of the exploration tenement.
10.There are burial sites around those hills Mount Gytha, Mount Hardman and Mount Abbot. There are many significant places around these hills. I am unable to provide specific details of these places but they are very special places. I can’t give details of the actual sites and special areas because it is against our belief system.
11.The burial sites are the biggest concern we have. They are very special to us. If we say where they are they will probably want to go and dig the bloody thing.
12.Anything that moves from those areas that have been left for us to look after will cause troubles amongst our people. We need to be able to show our young people what’s out there. These troubles will affect everyone who lives around the exploration area.
13.There is a special person, Balangan, that lives in between Mount Hardman and Mount Gytha. There are hundreds like him that live on those hills. At night they put out lights to signal to each other. I saw this one in 1985 running up the hill. Many people have talked to me about him. He was on horse when I saw him. He comes and talks to us. He gives us food. I am worried that the mining people will scare him away.
Major disturbance to land or waters
14.Years ago the mining companies had dozers and cut lines going all through our country. They left all kinds of holes and mess. They need to come and talk to Nykina Mangala people first before they do this.
15.We need to make the mining company understand that the Nykina Mangala people look after this country.
16.There are many significant places on the exploration area and waterholes and animals which are important to us. We would like them people to come and talk to us before they go there.’
‘AFFIDAVITOF ANNIE MILGIN
I Annie Milgin, Health Worker of Jarlmadangah-Burru Community solemnly and sincerely declare and affirm THAT:
1.My name is Annie Milgin. I was born on Paradise Station, which is in the area of the exploration tenement on 1 July 1950.
2.I am a claimant in the Nykina and Mangala Native Title Determination Application (WAG 6099/98) through my grandfather, Alec Mangandji who is named in the application. My father was Darby Nangarin who was a senior law man in the Nykina Mangala Claim Group.
3.I live in Jarlmadangah-Burru Community. I speak for the Paradise Area. My mum was born in the desert and my father was born at Lulugi station, just over the hill from Jarlmadangah. They worked at Liveringa station and then my brother Jimmy was born. They then moved down to Paradise country. I grew up in Paradise country which includes the area of the exploration tenement. When I was 10 I got enrolled at Liveringa school and started school. In 1964 I moved to Lulugui Station. After we moved, we would still go back there and go hunting and camping around the exploration area.
4.I am aware of the activities which the grantee party could perform under the terms of the exploration licence, if granted.
Interference with community and social life
5.The exploration licence area is on Nykina Mangala country.
6.We go to Paradise country 2 or 3 times a year. When we are there we go hunting and get kangaroos, emus, bush oranges and bush onions. A few months ago I went back there. It was my 2nd time back there this year.
7.My dad used to be a foreman and he used to take us to Mt Hardman where we would camp. Me and my sisters were born in Paradise. We would be there 12 months and Dad would fix fences and work on the sheep station. He used to go down and work in the exploration tenement area. We grew up in that area until we got older.
8.We would still hunt for bush tucker at that time. When we ran out of rations we went and got bush tucker. Dad taught us about bush tucker and bush medicine. From the tenement area you could get Rivergum or Birlawal, Rivergum Sap or Kirinyboo, Bush Onion or Wirriban, Ernu or Karnangyja and Bush Turkey or Kooramarrka.
9.When we had cold sickness and other sickness we used to get bush medicine. It was difficult to get medicine and immunisation in Liveringa. My dad used to cook meat with the Libirra rivergum and put on the bush tucker. He would chuck the leaves in with the meat in the foil. We still do that when we go there today. We would also use Sugarback as bush medicine and for when we didn’t have sugar.
10.We take the young kids out to the country where the exploration tenement is and we teach them bush tucker and bush medicine and stories from the dream time. We told the young people about the burial place near Mt Abbot.
Interference with sites of particular significance
11.There are very significant places in the area of the exploration tenement.
12.I know one man who is buried in this area. I can’t give you his name but he was a Nykina man. He was a very important man and he was buried in the burial place at Mt Abbot which is within the exploration area.
13.People leave sacred things at this place. As a woman we can’t go there. They leave their special stuff in this place and it is sacred ground or Koongoojoo. The mining company couldn’t go there. If the mining company went there they would disturb the sacred things. I would feel sick and it could make the person who touches the thing sick.
14.There is a Balangan who has been in the area of the exploration tenement for a long time. He is like a spirit man and he looks after that place. If something happened in the area of the pyramid (Machells Pyramid) he will disappear and move to another area. You will have moved that spirit away. We don’t go in that area. We have respect. No one would. When you go hunting he tells you where the bush tucker is. He looks after the people. He looks after Nykina Mangala. If the mining company went there and scared him away, then something might happen.’
‘AFFIDAVIT OF JIMMY MILGIN
I Jimmy Milgin of Jarlmadangah-Burru Community solemnly and sincerely declare and affirm THAT:
1.My name is Jimniy Milgin. I was born in Liveringa in the 1940s. I grew up in the Paradise area which includes the exploration area.
2.I am a claimant in the Nykina and Mangala Native Title Determination Application (WAG 6099/98) through my grandfather, Alec Mangandji who is named in the application. My father was Darby Nangarin who was a senior law man in the Nykina Mangala Claim Group.
3.I am aware of the activities which the grantee party could perform under the terms of the exploration licence, if granted.
4.When I grew up around Paradise Station in the 1940s and 1950s I started riding a horse and mustering sheep in the area. I used to go hunting in that area. I used to make spears and get kangaroos and emus and goanna, even snakes and white cats. We would dig a hole and throw him in and cook him.
Interference with community and social life
5.The exploration licence area is on Nykina Mangala country.
6.We went to the area of the exploration tenement a couple of months ago. We went round and visited all those places. We stayed at Mt Hardman Sump. We caught goanna in the tenement area.
7.We go up to the area of the exploration tenement a couple of times a year. My mother used to do bush medicine in the tenement area. I have 3 sons and 4 girls. I lived in Kalamburu and then moved back there in 2001 or 2002. I took my son to the tenement area last year and went hunting and showed him some things. Learning how to make a boomerang and showed him how do the cutting.
Interference with sites of particular significance
8.There was an old bloke who was buried on that hill at Mt Abbot. This is a very important area.
9.There is a Balangan at Machells Pyramid. He looks after Nykina Mangala people.’
The evidence of Mr Watson, Ms Milgin and Mr Milgin is uncontested and I accept it. Mr Watson is one of the persons registered as part of the applicant for native title and Ms Milgin and Mr Milgin are members of the native title party claim group. I accept they have authority to speak on behalf of the native title party.
Maps provided by the Tribunal’s geospatial unit show Mt Abbott, Mt Gytha and Machells Pyramid within the proposed licence, with Mt Hardman and Mt Hardman bore located less than four kilometres north of it. Looma and Jarlmadangah Aboriginal communities are located some 45-50 kilometres north-west of the proposed licence area with access to it from the communities by a major unsealed gravel road (Camballin-Noonkanbah Road). The Noonkanbah community is some 15 kilometres to the south-east of the proposed licence area.
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 them are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([23])). Direct interference involves an evaluative judgement 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, ([27])).
The evidence suggests that the proposed licence has been subject to some prior exploration activities for limited time periods but this is not a case where there have been extensive mining activities which may already have significantly affected the native title party’s community or social activities. However, there is an existing pastoral lease which has probably affected them to some extent.
The evidence of John Watson establishes that he goes hunting and camping there ‘very often’ and, Peter Dann goes there ‘just about every week’. I accept that at least some of Mr Dann’s visits involved hunting and camping which is consistent with the evidence he gave in WO99/738 (affidavit para 8). Mr Watson also says there are Nyikina and Mangala people that live in the tenement area who hunt, fish and get bush tucker. Mr Watson provides no information on who those people are, how many live there or the circumstances in which they live – whether on a permanent basis or otherwise or the frequency of the community or social activities carried out. There is also no evidence of this kind from any of the persons Mr Dann says live on the area. There is no record in the evidence of an established community such as those in Noonkanbah or Looma. Considering Mr Watson’s evidence on this point with that of Ms Annie Milgin and Mr Jimmy Milgin I can safely find that there are not a large number of Nyikina and Mangala persons living on the tenement area and engaged in the community or social activities referred to.
The evidence of Ms Milgin and Mr Milgin does not help to establish the existence of frequent community or social activities carried out by them or their families. Ms Milgin says she goes there two or three times a year (twice in 2007) (affidavit paras 6-10). Some of her evidence (paras 7-9) refers to activities which occurred in the past involving her father and while I can infer that she and her family still engage in the activities referred to, the evidence does not establish that this is on a frequent basis. The evidence of Mr Milgin’s activities is to similar effect. Some occurred in the past (para 4) and contemporary community or social do not take place frequently (affidavit paras 6 & 7).
In general the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely directly to interfere with a native title party’s community or social activities except in an incidental and insubstantial way. The Tribunal also has regard to the fact that generally an exploration licence area is a small part of the overall claim area and the community and social activities occur over that larger area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])). However, this is not an inevitable finding (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 (‘Banjo Wurrunmurra’ at [19]-[23])).
My finding in the present case is that the proposed exploration activity is not likely directly to interfere with the community or social activities of the native title party. Although the evidence presented is more substantial than that provided in WO99/738, I am still not satisfied based on the nature of exploration activity that there is a real risk of substantial interference with the identified community or social activities of the native title party.
The native title party’s Statement of Contentions says that the mere existence of the grantee party on the proposed licence area in circumstances where there has been no negotiation or consultation with the native title party could give rise to interference with community or social activities even though there is no physical interference. Reliance is placed on the statement of Carr J in Ward v Western Australia (1996) 69 FCR 208; (1996) 136 ALR 557. I adopt my findings in Delores Cheinmora & Others on behalf of Balanggarra Native Title Claimants/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/447, [2008] NNTTA 8 (21 January 2008) (at [26]) to reject this contention. Since the 1998 amendment to s 237 of the Act, the statement of Carr J is no longer applicable.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real 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 Aboriginal Heritage Act are two open access sites and one closed access site within the proposed licence, 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 Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The uncontested evidence of the native title party shows the area of the proposed licence to contain a number of areas or sites which potentially are of particular importance to the native title party’s dreaming and culture and include the following:
An undisclosed number of burial sites around Mt Gytha, Mt Abbot and Mount Hardman (John Watson affidavit paras 10-11)
A burial site of a ‘very important man’ in the vicinity of Mt Abbott which is described as “a very important area” (Annie Milgin affidavit para 12 and Jimmy Milgin affidavit para 8)
A restricted sacred ground or Koongoojoo (for initiated men only) in the vicinity of Mt Abbott where special objects are stored. Sickness to the claim group and others could occur if uninitiated men or women were to visit the site and disturb the sacred things (Annie Milgin affidavit paras 12-13)
An undisclosed number of “significant places” around the area of Mt Gytha, Mt Abbott and Mt Hardman, the locations and details of which cannot be disclosed owing to customary restrictions. Things have been left in those areas for the claim group to look after and if moved, could cause trouble for the claim group and for everyone who lives around the area. (John Watson affidavit paras 10-11)
Many Balangan or Spirit men who live in the above hills (John Watson affidavit para 13)
A specific Balangan or Spirit man who lives between Mount Gytha, Mount Hardman and Machell’s Pyramid, who ‘looks after the place’ and ‘looks after Nykina Mangala’. If disturbed he may leave the area and something might happen (John Watson’s affidavit para 13, Annie Milgin affidavit para 14 and Jimmy Milgin affidavit para 9)
A number of waterholes that are important to the claim group within the area of the proposed licence (John Watson affidavit para 7)
The evidence of waterholes in the last dot point does not establish them as particular significance to the native title party in accordance with their traditions. The evidence is not specific as to the nature of their cultural significance and the relevant particular significance cannot be inferred just from the fact that they are important waterholes. The evidence of the waterholes is given in the context of the community or social activities of fishing and are important at a particular time of the year but does not in my view establish them as being of more than ordinary traditional or cultural significance.
Apart from this, I am satisfied that the other sites and areas are of particular significance to the native title party in accordance with their traditions. Mt Hardman is some 3-4 kilometres from the northern boundary of the tenement area and some 5 kilometres from Mt Gytha and Machell’s Pyramid. I do not think the areas or sites in close proximity to Mt Hardman are likely to be interfered with. However, the evidence also refers to significant areas or sites around Mt Gytha and Machell’s Pyramid and between them and Mt Hardman which includes part of the proposed licence area. There could potentially be interference with them.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, 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. The Government party relies the regulatory regime based on the Aboriginal Heritage Act which 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 protection regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (Banjo Wurrunmurra at [26]–[34]).
The grantee party has not provided specific evidence of its exploration intentions but says that is has provided a copy of its planned work program to the native title party. It also says that disturbance to land will be kept to a bare minimum and that exploration will result in minimal impact to the surface of the land. In these circumstances I think it unlikely that the exploration will involve the full extent of the activities permitted by an exploration licence. However, it is apparent from the grantee party’s contentions that at some stage ground disturbing activities may become necessary and this would have the potential to interfere with Aboriginal sites.
The contentions filed on its behalf contain a statement about the grantee party’s intentions with respect to the protection of Aboriginal heritage. It is prepared to enter into a heritage protection agreement that is fair and reasonable; undertake complete heritage surveys prior to the commencement of ground disturbing activity; and to comply and instruct its employees and contractors to comply with relevant legislation, regulations and conditions imposed. The grantee party’s intentions with respect to the protection of Aboriginal sites is also evidenced by the fact that it attempted (albeit unsuccessfully) to negotiate such an agreement with the native title party.
I have no difficulty in accepting that the grantee will act lawfully and in accordance with the Aboriginal Heritage Act and I accept its statement that heritage surveys will be conducted over the area. However, the fact remains that at this point no agreement for a site survey has been entered into and it is my view that the normal negotiations mandated by s 31 of the Act are necessary in this case to try to ensure that agreement is reached and there is no interference with any site of particular significance. In the absence of such negotiations and agreement there is a real risk that relevant sites will be interfered with given the nature and extent of them identified by the evidence. This conclusion is in no respect an adverse reflection on the grantee party’s intentions or its stated sound record in working with Indigenous people but arises out of the facts of this particular case. My finding is based on the evidence that the subject area contains restricted sites not previously disclosed which are of particular significance to the native title party and is site rich, containing a number of areas and sites associated with customs of such importance that some sites cannot be entered into, disturbed or even disclosed except in accordance with traditional law and custom. Further, the extent of some of the areas and sites is not clearly delineated. The number and nature and potential extent of the areas or sites which exist on the subject area and are not on the public record means there is a real risk of interference with them despite the protective provisions of the Aboriginal Heritage Act and intentions of the grantee party.
Major disturbance to land and waters (s 237(c))
As the evidence relating to s 237(b) of the Act supports a determination that the expedited procedure is not attracted it is not necessary to consider whether major disturbance to land is likely to occur.
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1611 to Redgrove Investments Pty Ltd is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
18 February 2008
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