Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond - [2013] NNTTA 113

NATIONAL NATIVE TITLE TRIBUNAL

Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond [2013] NNTTA 113 (13 August 2013)

Application No: WO2012/0480

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants (WC1999/025) (native title party)

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The State of Western Australia (Government party)

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William Robert Richmond (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  13 August 2013

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

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)

Cases:Champion v Western Australia (2005) 190 FLR 362, (‘Champion’)
Cheinmora v Heron Resources Ltd (2005) 196 FLR 250, (‘Cheinmora’)
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24, (‘Geotech International’)
Dann v Western Australia (1997) 74 FCR 391, (‘Dann’)
Daisy Lungunan & Ors on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/William Robert Richmond [2013] NNTTA 112 (13 August 2013), (‘Richmond’)
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91, (‘Money’)
Kanak v National Native Title Tribunal (1995) 61 FCR 103, (‘Kanak’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little’)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)
Maitland Parker and Others/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Iron Duyfken’)
Parker on behalf of the Martu Idja Banykima People v Western Australia [2007] FCA 1027, (‘Parker 1’)
Parker v Western Australia (2008) 167 FCR 340, (‘Parker 2’)
Silver v Northern Territory (2002) 169 FLR 1, (‘Silver’)
Smith v Western Australia (2001) 108 FCR 442, (‘Smith’)
Walley v Western Australia (2002) 169 FLR 437, (‘Walley’)
Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210, (‘Winnie McHenry’)
WF (deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)
Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72, (‘Goonack’)

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

Representatives of the Mr Trevor Creewel, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines and Petroleum

REASONS FOR DETERMINATION

On 25 January 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E04/2156 (‘the proposed licence’) to William Robert Richmond (‘the grantee party’). The notice included a statement that the Government party considers the grant attracts the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
The proposed licence area is made up of eight graticular blocks (approximately 26.05 square kilometres) located 89 kilometres southwest of Derby in the Shire of Derby-West Kimberley. The entire area is subject to the Nyikina and Mangala native title claim (WC1999/025 – registered from 28 September 1999). There are no other registered claims or determinations of native title over the land affected by the proposed licence.
On 25 May 2012, Daisy Lungunan and others on behalf of the Nyikina and Mangala native title claimants (‘the native title party’) lodged an objection application with the Tribunal in respect of the proposed licence (designated as WO2012/0480).
In accordance with what was then standard practice in relation to expedited procedure objection applications, the Tribunal directed parties to provide contentions and supporting documents for an inquiry to determine whether the expedited procedure is attracted. These directions allowed a four month period after the closing date for the lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to the disposal of the objection by consent. It is understood that negotiations took place between the native title party and the grantee party from at least May 2012 to November 2012 in relation to this and other matters, and the Tribunal extended directions on a number of occasions to allow negotiations to continue. On 13 November 2012, the native title party informed the Tribunal that the negotiations could not go any further and requested that the matter proceed to inquiry. At this time, the native title party asked the Tribunal to vary directions once more to take into account the difficulties occasioned by the beginning of the wet season and the commencement of law business. This requested was granted by then President Graeme Neate on 26 November 2012.
I was appointed as Member to conduct the inquiry on 19 December 2012.
The native title party provided its contentions and evidence on 12 April 2013, including a statement of contentions (‘NTP Contentions’) and the affidavit of John Watson affirmed on 10 April 2013 (‘the Watson Affidavit’). The Government party’s supporting documents were provided on 16 April 2013, and though received out of time, neither the native title party nor the grantee party objected to my use of the material. In relation to the Tribunal’s direction that the Government party provide a statement of contentions, the Government party requested additional time in which to comply. I granted the extension, and the contentions were provided on 17 May 2013 (‘GVP Contentions’). No contentions or supporting documents were received from the grantee party.
On 28 May 2013, the native title party wrote to the Tribunal to advise that it would be unable to attend the listing hearing, but had no further submissions and was content for the matter to proceed ‘on the papers’ in accordance with s 151(2) of the Act. At the listing hearing, the Government party agreed that the matter could be determined without a hearing. The grantee party did not attend the listing hearing. The Tribunal sought the grantee party’s views on the issue by email, but received no response. After reviewing the material before me, it appeared to me that it was appropriate to proceed on the papers.

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, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including the activities permitted by the licences and the limits placed on those activities (at [24]–[35]). I adopt Deputy President Sumner’s findings for the purposes of this inquiry (see s 146 of the Act), while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the Standard Conditions imposed on exploration licences have been strengthened.
In relation to s 237(a), I adopt the legal principles identified in Tarlpa at [10]-[16].
With respect to issues arising under s 237(b), I adopt the legal principles identified by the Tribunal in Maitland Parker at [31]–[38] and [40]-[41] (see also Parker 1; Parker 2). I also adopt those set out by Deputy President Sosso in Silver.
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what could be done (see Little, especially [41]-[57]).

Evidence in relation to the proposed acts

The Government party provides the following documents in relation to the proposed licence:
·A Tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.
·Reports and plans from the Aboriginal Sites Database maintained by the Department of Aboriginal Affairs (‘DAA Database’).
·A copy of the tenement application and a Draft Tenement Endorsements and Conditions Extract.
·An instrument of licence and first schedule listing land included and excluded from the grant.
·A Tengraph quick appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.
The Tengraph quick appraisal establishes the land within proposed licence is overlapped entirely by Pastoral Lease 3114/1194 (Yakka Munga).
The quick appraisal indicates that the proposed licence area is currently subject to a petroleum exploration permit. The area has previously been subject to four temporary reserves, all of which overlapped the area in its entirety.
The report from the DAA Database establishes that there are no sites registered under the AHA within proposed licence. It does not appear from the Government party’s documents or Tribunal mapping that there are any Aboriginal communities within the proposed licence or the immediate vicinity.
The Draft Tenement Endorsement and Conditions Extract indicates that the grant will be subject to the standard four conditions, as well as two further conditions requiring the licensee to notify the holder of any underlying pastoral or grazing lease to be notified of the grant or transfer of the licence and of certain activities.
The following draft endorsements (which differ from conditions in that the licensee will not be liable to forfeit the licence if breached) are also noted:
1. The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

Evidence of the native title party

The native title party submits that the proposed licences are:
·likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land concerned;
·likely to interfere with areas or sites of significance to the persons who are the holders of the native title in relation to the land or waters concerned; and
·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 support of its contentions, the native title party relies on the Watson Affidavit. The affidavit is reproduced at Annexure A of these reasons.
Mr Watson states that he is a named applicant and one of the senior people for the Nyikina and Mangala claim, and I accept that Mr Watson has been authorised to give evidence on behalf of the native title party in relation to the country covered by the proposed license.

Interference with community or social activities – s 237(a)

The Tribunal is required to make a predictive assessment as to 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 interference): see Smith at [23]. The notion of 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 [26]. The assessment is also contextual, taking into account other factors which may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
The native title party contends (at NTP Contentions, paragraph 13) that the following community or social activities take place in the proposed licence area:
·Members of the native title party belong to the country within the proposed licence area.
·Members of the native title party live and camp and conduct their community within the proposed licence area.
·Members of the native title party look after Aboriginal paintings, burial places and sites of importance and significance within the proposed licence area.
·Members of the native title party have ancestors and family who are burial within the proposed licence area.
The native title party also provides the following particulars in relation to community or social activities (NTP Contentions, paragraph 16):
·Members of the native title party belong to the country within the proposed licence area.
·Members of the native title party go out to the proposed licence and conduct aspects of their community life.
·Members of the native title party [live] close to the proposed licence area to care for and protect that area.
The Government party contends that, other than the references in the Watson Affidavit to members of the native title party living near the proposed licence to monitor activities in the area (and which I refer to below), there is no evidence of any other member of the native title party living, camping or ‘conducting their community’ within the proposed licence area (GVP Contentions, paragraph 39(a)). In relation to the native title party’s contentions regarding activities such as looking after Aboriginal paintings, burial places and sites of importance and significance within the proposed licence, the Government party observes that the Watson Affidavit mentions the existence of Aboriginal paintings and ‘sites of importance and significance’, but makes no mention of burial places or ‘looking after’ these places (GVP Contentions, paragraph 39(b) and (c)). Therefore, the Government party submits that there is no evidence that members of the native title party carry on these activities.
Mr Watson states that he lives at Jarlmadangah community, which the Tribunal’s geospatial data indicates is 90 kilometres east of the proposed licence, but says that the community of Bidan Buru is close to the area (Watson Affidavit, paragraph 7). The Tribunal’s geospatial information indicates that the community (also known as Bedunburra) is located approximately 35 kilometres north of the proposed licence. Mr Watson states that people live and camp in the area, but provides no particulars as to who carries on these activities or how frequently they occur, though he does refer to a camp ‘south south east of the exploration license tenement’ (Watson Affidavit, paragraphs 9 and 11). Similarly, Mr Watson refers the existence of red ochre near Blue Hole Dam in the south east corner of the proposed licence, but gives no details as to any activities associated with the ochre (Watson Affidavit, paragraph 10). Mr Watson also states that two members of the native title party were appointed in 2012 to camp near and monitor the area after the native title party discovered that a mining company had drilled in the area without clearance from the proper Nyikina Mangala people (Watson Affidavit, paragraphs 12-16). Though Mr Watson refers to the explorer as a mining company, the Tengraph analysis does not show any active exploration licences, and I presume Mr Watson is referring to activities carried out under the petroleum exploration permit.
At paragraph 5 of his affidavit, Mr Watson states that the area of the proposed licence is ‘the exact same place as this exploration area is and where [the] gas explorer has recently damaged’ and at 6 ‘in exactly the same area the grantee wants to explore for other minerals’. He refers to how the native title party chose ‘Rosita and Linda to live close to the exploration area to see what was happening out there’ (see paragraph 12). They discovered the ‘mining company’ (petroleum company) had drilled an area ‘not cleared’ by the proper Nyikina Mangala people (see paragraph 14). It seems Rosita and Linda went to camp in the area ‘after the trouble started last year’ (see paragraph 16). They have since commenced a process with ‘The Department of Indigenous Heritage’ to ‘list the exploration licence area as a special place’ (see paragraph 5). It is clear that the petroleum exploration permit area is much larger and completely covers the proposed licence area. Mr Watson does not specify where the site damage occurred other than to say that Blue Hills is in the ‘exact same place’ as the proposed licence and where the explorer has recently damaged. Nor does he specify where Rosita and Linda have camped. The contentions of the native title party are silent on the issue. It is difficult to determine whether the site of the interference is in or near the proposed licence area. The ‘special place’ disturbed is not described in the evidence relating to s 237(a) or (b) in his affidavit. In any event the behaviour of the holder of the petroleum exploration permit is not relevant to the potential conduct of the grantee.
In relation to the monitoring activities, the Tribunal has previously accepted that there is a physical dimension to looking after country activities, and that such activities can be considered as community activities that manifest certain native title rights and interests (see Tarlpa at [80], [93]-[103]). Hence, I accept that the monitoring activities may constitute community activities for the purposes of s 237(a). However, the evidence does not suggest that the proposed licence will significantly affect the native title party’s ability to access the area. There is nothing in the nature of the monitoring activities described by Mr Watson which indicates that the exercise of the grantee party’s rights under the proposed licence would directly interfere with the carrying on of those activities. Moreover, as the Government party submits, the activities are already subject to (and co-existent with) non-native title rights and interests (GVP Contentions, paragraphs 41(a) and (b)).
The Tribunal has previously found that evidence relating to community or social activities which is of a general and unspecified nature will be insufficient to support a finding that the proposed act will interfere with those activities in a substantial or more than trivial manner (see Asia Investment Corporation at [13]). In this matter, the evidence of Mr Watson is too imprecise to enable the Tribunal to make a proper assessment of whether the grant is likely to interfere with any community or social activities that are carried on in the area. In relation to the native title party’s contentions about activities such as looking after paintings, burial places and important sites, there is no evidence of these activities in the Watson Affidavit. Insofar as the native title party’s submit that its members belong to the country within the proposed licence area, I do not accept that this is an activity within the meaning of s 237(a).

In the circumstances, I find that the grant of the proposed licence is not likely to directly interfere with the carrying on of the native title party’s community or social activities.

Interference with sites or areas of particular significance - s 237(b)

In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [16], the DAA Database shows there are no registered sites within the proposed licence, though the native title party states that there is an application being processed that it says ‘would identify the tenement area as site rich’ (NTP Contentions, paragraph 19). Regardless of whether there are any registered sites in the area, this does not mean there are no sites or areas of particular significance to the native title party with the proposed licence area or in the vicinity. The Register of Aboriginal Sites 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 native title party provides the following particulars in relation to s 237(b) (NTP Contentions, paragraph 28):
·There are sites within the proposed licence area where men and women are not allowed to go.
·There are significant sites within the proposed licence area where rock paintings are located.
·There are significant sites within the proposed licence area where traditional artefacts are located.
·The area of the proposed licence corresponds with a Dreaming story.
·There are significant sites within the proposed licence area that the native title party must protect and look after.
In reply, the Government party contends that there is not sufficient evidence to demonstrate that the sites referred to in the Watson Affidavit are sites of particular significance to the native title party (GVP Contentions, paragraph 55). Rather, the Government party submits that an area or site of particular significance must mean an area that ‘stands out in some way from the general background of other sites and the country as a whole’. The Government concedes that a particular secret place or particular site associated with a song or story may be a site of particular significance, but argues that the evidence needs to show that it stands out in this way (GVP Contentions, paragraph 56).
Mr Watson says there are places in the proposed licence area that are ‘important to many people in our community’ and there are places that ‘no one should go to unless they are the proper people determined by our culture and traditions’ (Watson Affidavit, paragraphs 17 and 18). Mr Watson states that there are both special men’s and women’s places in the area, as well as artefacts (Watson Affidavit, paragraph 19). Specifically, Mr Watson refers to a named place near Blue Hole Dam that is associated with a story (Watson Affidavit, paragraph 20), as well as a hill associated with a dreaming story about two brothers and a mowbrin or medicine man (Watson Affidavit, paragraphs 21-24). Mr Watson refers elsewhere to Blue Hills, which he says is a ‘very special place to our community’ (Watson Affidavit, paragraph 5). Mr Watson says these sites, and the special men’s and women’s country, are not marked and an explorer that enters the area will not to know where they are (Watson Affidavit, paragraph 25).
The native title party is required to provide sufficient detail and specificity to allow the Tribunal to make a predictive assessment in accordance with s 237(b): Iron Duyfken at [39]. To satisfy that requirement, the particularity of the significance of the site or area said to be of particular significance must be capable of identification on the evidence before the Tribunal: Winnie McHenry. It also means that there must be evidence of sufficient specificity to found a conclusion that there are areas of particular significance located within the proposed area: Cheinmora at [43]. In the present matter, I do not consider that the evidence regarding the named site and the artefact sites satisfies these requirements. However, I am of the view that Mr Watson’s evidence about the dreaming site is sufficient to support a finding that the site is of particular significance in accordance with the native title party’s traditions. Although the reference to the hill is not particularly precise, taking Mr Watson’s evidence as a whole, it is reasonable to infer that Mr Watson is in fact referring to Blue Hills, which is identified on the map attached to his affidavit, as well as the map produced by the Tribunal and distributed to parties for comment on 4 July 2013. This conclusion is supported by the fact that Blue Hills is identified as a particularly significant site in the preliminary parts of the Watson Affidavit but not in the section dealing with sites of particular significance, and is consistent with a beneficial approach to the legislation (see Kanak at 124).
As I have found there is a site of particular significance within the proposed licence area, it is necessary to determine whether the grant of the proposed licence is likely to interfere with it. As the grantee party has not provided any evidence of its intentions, I am entitled to assume that the grantee party will take full advantage of the suite of rights conferred by the proposed licence (see Silver at [30]-[32]). However, in the absence of evidence to the contrary, I must also assume that the grantee party will comply with the regulatory regime and the conditions of the proposed licence: Money at [58]. The question then becomes whether that regime and the proposed conditions are adequate to ensure that interference is not likely to occur as a result of the grant. The native title party makes a number of criticisms about the adequacy of the AHA and its relationship to s 237(b) for the purposes of site protection (NTP Conditions, especially paragraphs 20 - 25). Those criticisms were addressed in Geotech International at [40], and I adopt the comments I made there with reference to the cases cited. The native title party also contends that the proposed licence is located in an area that is site rich, and in that respect I refer to the comments I made recently in Richmond at [37]. Unlike in Richmond, the evidence presented here does not indicate there is a risk of interference that could not be mitigated by compliance with the AHA. There is no suggestion in the Watson Affidavit that unauthorised access could result in interference of the kind contemplated by s 237(b). Rather, Mr Watson’s concern is that the site could be damaged, by which I presume he means physically rather than in some other, less direct manner. It is my view that the AHA will be adequate to ensure that interference of this kind is unlikely to occur.
In conclusion, I find that the proposed licence is not likely to interfere with sites of particular significance in accordance with the traditions of the native title holders.

Major disturbance to land and waters - s 237(c)

The Tribunal is required under s 237(c) to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The native title party contends that the grant of the proposed licence will create rights whose exercise is likely to involve major disturbance (NTP Contentions, paragraph 34). It also contends that there are places within the proposed licence area that are so significant to the local Aboriginal community that ‘unchecked persons and activities may disturb the ecological and environmental balance which the native title party relies on for the hunting, gathering and teaching opportunities it provides’ (NTP Contentions, paragraph 35). In particular, the native title party refers to the evidence of Mr Watson, who states certain members of the native title party will get sick if the grantee party or anyone else damages artefact sites or special places within the proposed licence or accesses area without the native title party’s permission (Watson Affidavit, paragraphs 29-32).
The Government party argues that the mere fact the native title party may not be consulted when the grantee party enters the area does not constitute major disturbance, and submits that s 237 is not a means by which exclusive possession is to be enforced (GVP Contentions, paragraphs 69-70). Rather, the Government party contends that the grant is not likely to involve, or create rights the exercise of which is likely to involve, major disturbance to the land for the following reasons:
·The exercise of rights conferred by the proposed licence will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment.
·Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation following completion of exploration.
·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, and the activities contemplated by the grantee party in the proposed licence area would be the same as, or no more significant than, the previous and continuing use of the area.
·It does not appear that the area has any particular characteristics that would be likely to result in ‘major disturbance’ to land or waters arising given the activities proposed by the grantee party.
The Tribunal has generally found that the grant of an exploration licence under the Mining Act will not involve a major disturbance unless the evidence establishes that there are special topographical, geological or environmental factors that would lead members of the community to consider that the proposed activities would result in major disturbance to the land or waters: see Champion at [75]-[77] and the cases cited. There is no evidence of any such factors in the proposed licence area. The Tribunal must have regard to the concerns of the Aboriginal community, including matters such as the community life, customs, traditions and cultural concerns of the native title holders: Dann at 401. However, concerns about unauthorised access do not justify a finding that major disturbance is likely to be involved (Goonack at 44). Though I recognise there are cultural concerns about interference with heritage sites, to the extent that such sites can be found in the proposed licence area, I am satisfied that the relevant regulatory regimes will operate to prevent disturbance of the kind contemplated by s 237(c).
I have also had regard to the following considerations:
·The entire area is subject to a pastoral lease and a petroleum exploration permit, and the grantee party’s activities are unlikely to be more substantial than the existing use of the area.
·The proposed conditions of grant require the grantee party to obtain the approval of the Department of Mines and Petroleum’s Environmental Officer before using mechanised equipment, and impose various rehabilitation requirements.
·The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA).
·There is no evidence that the grantee party will not comply with the conditions and relevant regulatory regimes.
In conclusion, I find that the proposed licence is not likely to involve disturbance of the kind contemplated by s 237(c).

Determination

The determination of the Tribunal is that the grant of exploration licence E04/2156 to William Robert Richmond is an act attracting the expedited procedure.

Daniel O’Dea
Member

13 August 2013

ANNEXURE A

AFFIDAVIT OF MR JOHN WATSON

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

My name is John Watson. My Aboriginal name is Dadigar.
I was born on Mt Anderson Station in 1949.
I am a Named Applicant and one of the senior people for the Nyikina and Mangala Native Title Determination Application (WAD 6099/98). Under our Law I have authority to speak about Nyikina and Mangala land matters.
I know the area where William Robert Richmond “the grantee party”, has applied for Exploration Licence Number E04/2156 “the exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
The area is Blue Hills and is a very special place to our community, I think we are going to Department of Indigenous Heritage about the exploration licence area now and we are waiting for Department of Indigenous Affairs to list the exploration license area as a special place. I am talking about the exact same place as this exploration licence area is and where gas explorer [sic] has recently damaged.
I know a different explorer than the grantee is exploring for petroleum, oil and gas in exactly the same area as the grantee wants to explore for other minerals.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
I live at Jarlmadangah Community which is not on the map. Bidan Buru is a community close to the exploration license area which is where Lucy Marshall a Nyikina Mangala Traditional Owner lives.
The exploration licence area falls wholly within Nyikina Mangala country.
People use the exploration license land today, they live and camp out there.
Red ochre comes from the area new Blue Hole Damn.
There is a big camp south east of the exploration license tenement.
Nyikina Mangala Traditional Owners and Named Applicants chose Rosita and Linda to live out close to the exploration license area to see what is happening out there. It is the women’s job to monitor what is happening in the exploration license area.
When we first went to map out our claim it was clear that the exploration license area was Nyikina Mangala ground.
When we discovered the mining company had started to drill it was too late and they had not cleared their activities with the proper Nyikina Mangala people.
We soon began the process to have the site listed on the Department of Indigenous Affairs and nominates [sic] Rosita and Linda to camp near the exploration license area. This all happened last year.
Rosita and Linda went out there after the trouble started last year, they have been out there for months. When the ladies went away for a funeral, the bulldozers went into the exploration license area and damaged our artefacts and special places. The women told the miners where they could not go but the miners went straight the special areas and pushed artefacts onto the side of the hill on the road. The miners walked over our special places.
AREAS OR SITES OF PARTICULAR SIGNIFICANCE
I know the exploration licence area and the country around it very well. There are places in the tenement area that are important to many people in our community.
There are places that no one should go to unless they are the proper people determined by our culture and traditions. There are both special men’s places and women’s places in the exploration license area. There are lots of artefacts on the exploration license area.
There are two hills in the exploration license area which are covered in old rock paintings and between the two hills are sand dunes with many artefacts.
My wife’s sister has a story about where the tenement touches the road near Blue Hole Dam. They have a name for that place.
DREAMING STORY
There is another story about two boys chasing a blue tongue lizard from Dampier Downs. The two boys were tracking the blue tongue lizard’s nmarlyuk all over the exploration license area.
The boys may have been brothers. One of the young boys was blind and was a mowbrin man, a doctor man. The other boy would leave the blind boy in a shady spot and go and find the tracks of the nmarlyuk and then the boy would come back and get the blind boy and they would follow the tracks together. It took them years to track to nmaryluk.
The hill is where the boys from the story use to camp which is why that place is so special.
Old people knew the story and they told that story to us, it has been told from the beginning of dreaming bugardeegarda, we are retelling the story that was handed down to us. I have known the story about the boys since I was told when I was a boy.
The special men and women’s country and the sites which are special because of the dreaming story are not marked so an explorer will not know where those places are. When we have an agreement with the explorer we can tell them through our heritage survey work where the explorer should not go because they are so special to our cultural heritage and people will get sick.
If that place gets damaged different people will be responsible depending on where exactly the explorer steps under traditional law.
The best way to protect these places under our law and white law is to have an agreement with companies who want to explore the area.
MAJOR DISTURBANCE TO LAND OR WATER
I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.
The explorer’s activities could do more damage to the artefacts and special places than the other explorer has done.
The explorer and his workers have to be very careful, wherever you walk or damage parts of the exploration license area someone will get sick, certain people will get sick depending on where they walk. This is what Nyikina Mangala people know to be true from our cultural heritage knowledge.
People who live closest to the tenement will get sick before we go out there.
Under our law anyone who is not Nyikina Mangala needs to ask permission before they can go out on to our country.
It is really important that the explorers who want to come out to our country speak to the right people. Nyikina Mangala Traditional Owners meet and decide who are the right people to speak for country and go out and do a proper heritage survey. The best way to be sure the right people area speaking for country and can tell the explorer where the special places are is for them to have proper discussions with us and sign an agreement.