Daisy Lungunan & Others on behalf of the Nyikina & Mangala Native Title Claimant Group/Western Australia/Conquest Mining Nl
[2002] NNTTA 193
•23 August 2002
NATIONAL NATIVE TITLE TRIBUNAL
Daisy Lungunan & Others on behalf of the Nyikina & Mangala Native Title Claimant Group/Western Australia/Conquest Mining NL, [2002] NNTTA 193 (23 August 2002)
Application No: WO01/453
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 & Others on behalf of the Nyikina & Mangala Native Title Claimant Group (native title party)
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The State of Western Australia (Government party)
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Conquest Mining NL (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 23 August 2002
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – act likely to interfere directly with the carrying on of community or social activities and interfere with sites of particular significance – act does not attract the expedited procedure.
Legislation:Native Title Act 1993 (Cth) s 237
Cases:Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002
Representative of the
native title party: Mr Ian Irving, Kimberley Land Council
Representative of the
Government party: Mr Phil Boyland, Department of Mineral and Petroleum Resources
Representative of the
grantee party: Ms Tanya Wood, Conquest Mining NL
REASONS FOR DETERMINATION
Background
On 13 June 2001, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the Government party’) advised its intention to do a future act, namely to grant exploration licence 04/1189 (‘the exploration licence’) to Conquest Mining NL (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 211.35 square kilometres located 104 kilometres south east of Derby, in the Shire of Derby-West Kimberley (centroid - latitude 17o 58 minutes, longitude 124o 18 minutes). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 15 October 2001, Daisy Lungunan & Others on behalf of the Nyikina and Mangala Native Title Claimant Group (‘the native title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure. The native title party’s Application for Determination of Native Title (WC99/25) was registered by the Tribunal on 28 September 1999. The area of the exploration licence is situated on this claim area.
The Tribunal accepted the objection application on 26 October 2001.
In accordance with its normal Procedures under the Right to Negotiate Scheme, 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. The parties were content for a determination to be made on the papers and I have decided that I can adequately deal with the matter in that way (s 151 NTA).
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.’
Legal principles
The nature of an exploration licence and activities permitted by it
In Western Australia/Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002, I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[37]). I adopt those findings for the purposes of this inquiry.
The evidence
The Government party’s evidence establishes that the underlying land tenure of the proposed tenement is:
·Pastoral Lease 3114/975 (vested in AIL Holdings Pty Ltd);
·Unallocated Crown Land (closed road);
·Road; and,
·Freehold.
There is an Aboriginal community located approximately 8.8km west of the tenement boundary, namely the Looma Aboriginal Community
The Aboriginal Sites Register reveals that there are eleven sites registered under the provisions of the Aboriginal Heritage Act 1972 (WA) which variously are ceremonial, mythological and burial sites.
The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the Government party. As there is no evidence of the grantee party’s intentions in relation to exploration I have dealt with this matter on the basis that the grantee party will exercise the rights available to it under the grant to the full extent permissible by law.
The native title party lodged affidavits of Darby Narngarin, John Watson and Aggie Puertollano. This evidence was not contested and I accept it for the purpose of this determination
Affidavit of Darby Narngarin
‘I, Darby Narngarin, pensioner, of Jarlmadangah-Burru Community, near Looma, in the State of Western Australia affirm:
1. My name is Darby Narngarin. My Aboriginal name is Nanggiriny. I have banaga skin or section group. I was born at Koolakoolaboo or Luluigui Station Homestead, about 20 kilometres south-west of the exploration licence area. I was born in Nyikina country, in the Fitzroy River country. Today, I live with my daughter and my lambarra, or son-in-law, John Watson, at the Jarlmadangah-Burru Community, on the Mount Anderson Pastoral Lease.
2. I grew up at Koolakoolaboo, and lived all my life on Luluigui Station and surrounding stations on my traditional country, like Liveringa Station, or Libirrinbirriny and Myroodah Crossing, or Maloombookarda. I travelled and did stock work all over my country, like at Paradise Station, which is now part of Liveringa Station. This is where some of my kids, including my daughter Annie Miljin, were born. I drove stock to Broome from stations where I lived and worked on Yeeda, Mowla Bluff and Dampier Downs, as well.
3. I was working for Station managers, for only a box of matches, joobak or tobacco, and clothes. I got no money for station work in those days. The Lulugui Station Manager in those days was a rough white fella named Doug Moore. Before me, my father worked for Mr Brockman, the manager of Luluigui Station before Doug Moore.
4. I talk Nyikina. Nyikina is my language. My kaloo, or father’s father was Mangala, but he spoke Nyikina too. My jaja, or mother’s mother was also Mangala. My ngawooji, or father’s mother, named Mirnbookar, spoke Mangala and Nyikina. My jambardo, or mother’s father, spoke Mangala
5. I know the area where Conquest Mining Pty Ltd have applied for Exploration Licence Number E04/1189 because I have been shown a map of the application area and I have been to this area many times before. The map I was shown is attached to this affidavit and marked “A”
6. I am one of the senior people for the Nyikina & Mangala claim group. I am widoo or a ‘boss man’ for my mob. I am a very old man today. I say in my Nyikina language, ‘Ngayoo wamba ngaloorroo’, which means in English, ‘I am a senior man’. I know the songs for Warloongarri Law business on my traditional country. In Nyikina I would say ‘Ngayoo booroo marlgoondin Nyikina’. In English this means something like, ‘I am with the Nyikina roots of the ground’. I am looking after my country with my family. The exploration licence covers part of my country.
7. A lot of my family and community used to live at Woolooroongan or the Willumbah Outstation area, up until the 1970’s, when Looma Community was first set up. Woolooroongan is inside the exploration licence area.
8. There are many very special places on the exploration licence area. Each of these places has a story from the Bookarrikarra, or the Dreaming. Our Warloongarri Law is based on the Bookarrikarra. I know all the stories and can sing the songs for all the Bookarrikarra places on my country, including those inside the exploration licence area. Some of these places have yoongoo, or soaks. Other places have yoorooriny, or running spring water.
9. Bajarranyoordany is the right name for the area around Camballin settlement, which I believe is close to the exploration licence area. Bajarranyoordany may be less than two kilometres from the western boundary of the exploration licence.
10. Yirarla is the name for the whole Uralla Creek, which is inside the exploration licence area. There are many special places along Yirarla. Each of these places has a story from the Bookarrikarra. Koonyoonoonyoonookarda is a place at the southern end of Uralla Creek inside the exploration licence area.
11. Near Koonyoonoonyoonookarda is another place called Bilikanyaboo. I don’t know what gardiya might call this place. There is a very important story from our Warloongarri Law for Bilikanyaboo. This is where the Kamba, or freshwater-crab man, was put through our Law. He travelled from Bunuba country to the north, through the exploration licence area, stopping at places like Bilikanyaboo and Moolooman. Moolooman is the proper name for the area around Mouleman Bore and Tank and Rice Hill, inside the exploration licence area.
12. The Bookarrikarra man, Kamba, also travelled to other places, south of the exploration licence area, during the Bookarrikarra, like Wirlimbookarda, a place on the eastern side of Upper Liveringa Pool, Libirrinbirriny or Liveringa Homestead area, Wooloobarda or Woolabudda Crossing, and Jarralkarda, or the Charlcutta Bore area.
13. Nalmangangarra is another Bookarrikarra place in the exploration licence area. There is a long, sandy ridge there and a big swampy area. I don’t know if gardiya, or non-Aboriginal people, have a name for this area. Nalmangangarra is also a maliji place, where we can make more barniy or goanna, using out Law.
14. I know the Bookarrikarra story about the Karnanganyja, or Dreaming emu-man, who ate all the makina at Moolooman, or Mouleman Bore, inside the exploration licence area. That Karnanganyja spoke Bunuba and ran away back to that country, to the north, after he ate all the markina. He made a big gurra, or shit, somewhere up in the Leopold Ranges, north of the exploration licence area, where all the markina plums grow today.
15. The exploration licence is located in Nyikina country. I’m looking after that country with my family. My father always told me, “You look after that country, no matter what white people come.”
16. Gardiya, or white people did a lot of damage to our country around Camballin, inside the exploration licence area, from the 1950s to 1970s. They cleared a lot of dibinybooroo, or scrub country, in the southern and eastern exploration licence area. A lot of different trees and plants grown in dibinybooroo, including, warimba or bauhinia, koongkara or conkerberry, kadookadoo or coolibah, boolirri or whitewood, karriwal or edible grass seeds, joorrlany, which has a root like parsnip, and ngarrdingngarriding or pigweed seeds. We grind up karriwal to make damper. Joorlany likes to grow anywhere there is soft ground, but after all the clearing with the bulldozers, we couldn’t find it any more in some places covered by the exploration licence. A lot of different birds used to nest in dibinybooroo, before gardiya cleared it.
Affidavit of John Watson
‘I, John Watson, CDEP worker, of Jarlmadangah-Burru Community, near Looma, in the State of Western Australia, affirm:
1.My name is John Watson. Mr Aboriginal name is Dadiga. I have karimba skin or section. I was born on Mount Anderson Station, about 15 kilometres west of the exploration licence area, in 1940. I grew up on Mount Anderson until I was about 21 years old, when I started to work on other stations in my area. Today, I live with my family at Jarlmadangah-Burru, a community living area which we set up on Mount Anderson Pastoral Lease.
2.I am Named Applicant and one of the senior people for the Nyikina and Mangala Native Title Determination Application (WAG 6099/98).
3.I know the area where Conquest Mining Pty Ltd have applied for Exploration Licence Number E04/1189, “the exploration licence area”, very well, because I have been shown a map of the application area and I have been to this area many times before. The map I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.We put all our young men from Jarlmadangah-Burru, Looma, Derby, and Fitzroy Crossing through our Law ceremonies, regularly, in the Wet Season. In 1955, I was put through our traditional Law ceremonies at Mount Anderson and became a young man. We have Law grounds, or nimaliny-booroo, at Looma, about 19 kilometres west of the exploration licence area. This is where we sometimes settle disputes, or nimalikarranjirr, in our community. The boss men in our community are called widoo or wamba ngaloorroo, ‘senior men’. There are senior women, or marnin ngaloorroo, in our community, too.
5.I know the exploration licence area very well. I hunt and fish there with my young people. I always tell my kids about Moolooman, Nalmangangarra and other important places in our country, otherwise they would never know. Moolooman and Nalmangangarra are both inside the exploration licence area.
6.Members of my family go to Moolooman, inside the exploration licence area, to fish or catch barniy, in Wilakarra, the Wet Season. My brother, Harry Watson, is always taking our kids and grand-kids there. We live off our land. We have a lot of people in our families to feed from bush food on our country. My brother, Harry, even has his own boat to catch fish for his family.
7.We get many of our bush foods from inside the exploration licence area. We catch walja or barramundi, barooloo or catfish, jarramba or giant freshwater prawns, and koowaniya or freshwater crocodile. We don’t try to catch linykoorra, or saltwater crocodile : that’s too cheeky or dangerous. We also catch baya or freshwater coach-whip stingray, biyalbiyal or swordfish and koolarrabooloo or long-necked tortoise.
8.In the billabongs on the exploration licence area, we get kakaroo or freshwater mussels, as well as two different types of joodoowaniny or waterlillies : jarnbinyan and jangooloo. We eat both types of waterlilly, like an onion. Plenty of waterlillies grow in the eastern part of the exploration licence area. Ngankirrngankirr, or wild pigs, sometimes get into the waterlilies, too.
9.On the plain country inside the exploration licence area, we also gather wirban, or bush onions, similar to those called jurnta by Walmajarri people.
10.I take my grandchildren and all the Jarlmadangah-Burru kids out to the whole Camballin area, all the time, to check our country and especially to hunt around Nalmangangarra, in the eastern exploration licence area, and to Nimayil and Boolarr, just outside the exploration licence area. We always go fishing on Yirala or Uralla Creek, inside the exploration licence area.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
11.All places, or booroo, on our traditional country have got great meaning from the Bookarrikarr, or the Dreaming: who went there, what they did at each booroo. My father-in-law, Darby Narngarin, knows all the songs from our Law for all the places in our country. Jirmanykarda, the Buckshot Tank area, inside the eastern boundary of the exploration licence area, has a Dreaming song about grinding seeds there in the Bookarrikarra. Every name on our traditional country has a very special meaning coming from our Law. But we can’t tell everything to gardiya or wajbal, or non-Aboriginal people. That would break our Law.
12.Wirndingoorroo, an area near Snake Creek, which is inside the exploration licence area, is another maliji place on our country. A maliji place is a special place where we make food animals more plentiful.
13.Bajarranyoordany is our name for the Camballin settlement area less than one kilometre from the exploration licence area. There is a second Bajarranyoordany on the Fitzroy River, south of the exploration licence area. The name for both places comes from a special Dreaming story about the Night Heron Man, Winyamboo. Winyamboo is a very important being in our Warloongarri Law.
14.Yirarla, the proper name for Uralla Creek, inside the exploration licence area. There are many special places along Yirarla. Ngarrbanyarda, which is inside the exploration licence area, is the name for an area on Uralla Creek where there are some billabongs. It is a nesting place for nyimbiljibooroo, or shags. Mayardajilbidi, which is also inside the exploration licence area, is the name for an area on the west bank of Uralla Creek. Koonyoonoonyoonookarda is the name for another area on the southern segment of Uralla Creek, also inside the exploration licence area.
15.Woolooroongan is the proper name from the Dreaming for the area where Willumbah Outstation is located, inside the exploration licence area. A lot of my family, like Dickie Yamboo and Aggie Puetollano, used to live at Woolooroongan. My mother was living at Ngarrbanyarda in the Cold Season and at Woolooroongan, or the Willumbah Outstation area, during Wilakarra or the Wet Season, up until the 1970s, when Looma Community was established, about 20 kilometres to the west of the exploration licence area. We still visit that area today, to fish, hunt and check out the country.
16.Nalmangangarra is the name for a very important area inside the eastern part of the exploration licence area. There is a long, sandy ridge there, west of Buckshot Tank. The name for Nalmangangarra comes from the Dreaming. There is a special Dreaming story for that area. The word nalma means ‘head’ in our Nyikina language and refers to part of that Dreaming story. Nalmangangarra is a Dreaming place for barniy. We call these type of Dreaming places, maliji. We rub a larrkardiy or Boab tree there at Nalmangangarra so as to get more barniy.
17.Jooloojoolookoordany is another very special area around the Erskine Bore area, inside the north-eastern exploration licence area. Patsy Yamboo lost her first-born son there at Jooloojoolookoordany.
18.Close to the eastern boundary of the exploration licence area are other places which are special to me and my community. Boolarr is an area on the eastern side of Nemile Dam. There is an old tank and windmill there. Nimayil is the proper name for the Nemile Dam area Iljamalkarda is the name for Le Lievre Swamp just outside the eastern boundary of the exploration licence area. Laboonarda is our name for the Spinifex Tank area, which is very close to the south-eastern boundary of the exploration licence area.
19.Inside the south-western part of the exploration licence area is a place we call Bilinganyaboo. There is no gardiya name for this place. There is a very important Dreaming story and song for this place. It is where Kamba, the freshwater crab-man who spoke Bunuba, was initiated into our Warloongarri Law, in the Dreaming. Kamba travelled all over our country, south from Bunuba country, through Nimayil and along Yirarla Creek, inside the exploration licence area, to Wirlimbookarda, a place on the eastern edge of Upper Liveringa Pool and then to Libirribirriny, or the Liveringa Station area, which is about 5 kilometres from the south-western boundary of the exploration licence area. At Libirrinbirriny, he heard the Brolga and Pelican singing songs from our Law. He then travelled south to Wooloobooda, or Wooloobudda Crossing, then travelled back north to Libirrinbirriny and then to Bilinganyaboo, which is inside the south-western part of the exploration licence area. At bilinganyaboo, Kamba was initiated into our Law.
20.Moolooman is the proper name for the area around Mouleman Boore, inside the exploration licence area. There is a special Dreaming story for Moolooman. It is a big, secret place with special maji, or vegetable food, called markina. During the Dreaming, men were camping at Moolooman, singing songs from our Law. They smelt food and asked “Who’s cooking?”. It was Karnanganyja, a Bunuba emu-man, who replied, “Ngayi, nyinji guramal. These words mean, “Me, you men!, in the Bunuba language. Karnanganyja then ate all the markina, kept in a mulbooloo, or coolaman, tipping it over, before running away though the open plain country to the north-east, through the exploration licence area to Nangali, or Ellendale Homestead, and beyond, to the north in Bunuba country. That’s why there’s no markina there at Moolooman, today. Markina are a special type of bush potato.
21.About two kilometres north of the exploration licence area and Moolooman, is an area called Yarrawardany. Boab Bore is in this area. There is a yoongoowila, or soak-water, there at Yarrawardany. This is a special place from the Dreaming. Wila means ‘water’ in our Nyikina language.
22.About 12 kilometres south-east of the exploration licence area is Loonboodaboo, or Mount Wynne. There are hot springs and cave paintings at Loonboodaboo. This is a very special place for our Law. It is where Ngalyak, the Blue-tongued Lizard, killed and buried Wirril, the King Brown Snake. Some of my family, like Peter Dann who lives at Looma Community, have worked hard to protect this place and have got help from the Department of Indigenous Affairs to fence off the paintings at Loonboodaboo.
MAJOR DISTRUBANCE TO LAND OR WATER
23.In the 1960s, when I was a young man, I worked for gardiya or non-Aboriginals on the Camballin irrigation project in the Seventeen Mile Dam area, on the southern boundary of the exploration licence area. I didn’t know that the work we were doing, what the government did there, was going to damage that country.
24.I would like mining companies to respect us traditional owners, today. The Mabo Law will make us sit together, gardiya and traditional owners, around the table. Are we going to do this in the future?
25.Miners have to see us before they do anything on our traditional country. Enough damage has already been done to our country, including in the Camballin area covered by the exploration licence.
26.A lot of rubbish has already been left behind on our country inside the exploration licence area, after the government’s sorghum project in the 1970s and the building of Seventeen Mile Dam, which is on the southern boundary of the exploration licence area. Gardiya poisoned areas of our country, spraying ‘Agent Orange’ to kill vegetation, when they were growing cotton and sorghum in the Camballin area, inside the exploration licence area.
27.A lot of country, inside the exploration licence area, was damaged in the 1960s and 1970s west of Laboonarda or the Spinifex Dam area, when gardiya or non-indigenous people, cleared all the trees there for rice growing.
28.In the southern and central parts of the exploration licence area, big areas of scrub country were cleared between the 1950s and 1970s when gardiya came to grow rice and sorghum on our land. We call scrub country, dibinybooroo, in Nyikina language. All the parrots and any bird with a hard beak, used to nest in the dibinybooroo country : jinyjiny or budgerigar, darriyal or red-tailed, black cockatoo, ngamakarri or white corella and boondaroo, or quail. The boondaroo has the same skin, or section group, as my jaja or mother’s mother. Koorrarka, or brolgas booloombooloo or spoonbills, minala or ibis and koorroolyoo, or magpie-geese, all have their main breeding area in the eastern part of the exploration licence area, especially in Wilakarra or the Wet Season. Also, birlinyalinyali or swamp hens live here and run from billabong to billabong. When the dibinybooroo country was cleared by gardiya between the 1950s and 1970s, these birds lost their nesting places and food for their hard beaks. I don’t want to see that clearing happen ever again on my country.
29.My son, Anthony Watson, has been trying to get the whole Camballin area protected as a conservation area. It’s the only place that a native pigeon nests. I understand that the area is already registered with the Australian Heritage Commission in Canberra for its conservation value. But we are still trying to get gardiya to recognize our culture and Law for our country.
30.Some gardiya, or non-indigenous people, camp for days on Uralla creek inside the exploration licence area, with boats and fish-finders and clean out all the big fish. The Fisheries Department hassles and checks us traditional owners all the time, but never catches those gardiyas who over-fish on our country.
31.A lot of gardiya, or outsiders, from towns visit our country, including the Camballin area, and litter the place, leave plastic shopping bags behind and drink grog. Plastic bags fall into the water at places like Yirarla, Uralla Creek and billabongs on the exploration licence area, fish eat then and die. Gardiya have shot freshwater crocodiles and swordfish on the exploration licence area and just left them to rot on the bank, When we catch crocodile and swordfish, we taken them back to our communities and share them out as food.’
Affidavit of Aggie Puertollano
‘I, Aggie Puertollano, pensioner, of Loch Street Derby, in the State of Western Australia, affirm:
1.My name is Aggie Puertollano. I am an elderly woman. I was born at the old Pago Mission, near Kalamburu, before my parents moved to Beagle Bay Mission. Today, I live in Derby. I have lived in Derby since 1943, with my husband, Thomas Puertollano.
2.I know the area where Conquest Mining Pty Ltd have applied for Exploration Licence Number E04/1189, “the exploration licence area”, because I have been shown a map of the application area and I have been to this area many times before. The map I was shown is attached to this affidavit and marked “A”.
3.My Dad was born at Camballin, very close to the exploration licence area. There was no Liveringa Station then, in the early days. His native name is Loolya. His Christian name is Fulgentius. My father’s father was from around the Liveringa area and Camballin area, inside the exploration licence area. That is my father’s traditional land area, from the early days.
4.My father was removed by Police, when he was 9 years old, with 15 half caste children from Noonkanbah, Liveringa and Camballin to Wyndham. The Police then took them to Pago Mission, near Kalumburu. My father married my mother at Beagle Bay Mission in 1919.
5.My father’s mother is from Liveringa, about 5 kilometres south-west of the exploration licence area. Her name was Yalaba. She and my father are part of the Nyikina people.
6.My mother was taken from Yeeda Station, north-west of the exploration licence area, by Police when she was 7 years old, with her sister. My mother’s mother was name Marningga. Her gardiya or non-Aboriginal, name was Lucy. We used to call her jaja, or ‘grannie’, in Nyikina. She was sent to Bungarun, the Derby Leprosarium, when we were kids. She died there at the Leprosarium.
7.While at Pago, my father took up stock-droving work with Streeter & Male in Broome. After this, my Dad was transferred to Sheep Camp, on Roebuck Plains Station, west of the exploration licence area. I was doing the cooking work there on Roebuck Plains, with him. It was a sheep station then.
8.After Roebuck Plains, my parents, I and the rest of my family were transferred to work on Myroodah Station about 8 kilometres south of the exploration licence area. This was from about 1936, before Broome was bombed by the Japanese. We all lived at Lillumbah Outstation, inside the exploration licence area, working for Kim Rose, who was the Station Manager in those days. Dad took over station work there from the Hunter family. My brother, Dicki Yamboo, who was grown up by my Mum and Dad was also living with us at Willumbah. Dickie Yamboo is married to Ginya Patsy Yamboo. Today, they both live in Derby with their family.
9.I never forgot how our old people were poisoned at Liveringa Station about 5 kilometres south-west of the exploration licence area. I was there at the time. They used the wrong powder for making their damper. Dogs and old people all died, gone. Only one didn’t die: her name was Mary. Her son is working today at Pandanus Park, an Aboriginal community west of the exploration licence area.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
10.My daughter, Pat Bergmann, and her family, always goes out fishing in the Camballin area, inside the exploration licence area. Whenever we go out to the Camballin area, we catch barramundi, catfish, stingray and shark. If I catch enough fish, I give some to our old people. They always like to get fresh fish from the River country there.
11.We also get barniy or goanna from the river and anywhere on the exploration licence area. We catch bush turkeys, too, by shooting with a gun. Turkeys are a good feed.
12.We get plenty of sugarbag, or bush honey, from tea-trees, wattle trees and other trees in river country in the exploration licence area. Another tree which has sugarbag is the white-gum. We used to always get sugarbag, when I was younder.
13.We get lots of cherrabun or giant freshwater prawns from the Moolooman area and Uralla Creek, both inside the exploration licence area. Today, my family often drop me off on the bank of Uralla Creek and leave me there to do my fishing. I usually get a dozen big cherrabun in one throw of the net. We always get them in the middle of the Dry Season, before the Wet.
14.I know the Mouleman Bore area. The proper name for that area is Moolooman, inside the exploration licence area. When we lived at Willumbah Outstation, we used to walk there by foot to fish there. Today, we still catch barramundi and cherrabun or giant freshwater prawns there. Nobody every stopped us going fishing there, before or today. We fish at Snake Creek and Uralla Creek, both inside the exploration licence area, even today.
15.When I was younger, I used to camp at a big billabong along Uralla Creek, inside the exploration licence area. That’s the history for us, that’s what we’ve always done. We always take kids and grand-kids with us whenever we go fishing or camping on our country.
16.The Camballin area, inside the exploration licence area, is the only place I always like to go fishing and catching cherrabun. In the Wet Season, that whole area is covered with flood-water.
17.The hill at Camballin homestead, just west of the exploration licence area, is my father’s mother’s country.
18.I know the Nemile Dam area, about half a kilometre outside the north-eastern boundary of the exploration licence area. I have been there many times. We used to always go to Nemile Dam, getting Cherrabun. I haven’t been back there since my sister died. Nemile, poor fella.
19.The water at Willumbah Outstation, inside the exploration licence area, is no good for drinking. It’s too brackish for people. But it is alright for washing. When we were living at Willumbah Outstation, we used to carry drinking water there from the creek. My Dad lived out at Willumbah until he was too old. They took him away and got a house for him in Derby, before he passed away.
MAJOR DISTURBANCE TO LAND OR WATER
20.Miners should talk to the Aboriginal owners of any area before doing anything. They should also talk with our whole community, including John Watson, Harry Watson, their father-in-law, Darby Narngarin, my brother Dickie Yamboo and Budi, who lives at Looma, about 19 kilometres west of the exploration licence area. Dickie and Budi are the oldest ones alive who were living with us out at Willumbah Outstation.
21.We’d be hurt if we found out miners had drilled or set up camps at Willumbah Outstation or Moolooman, both in the exploration licence area, because we wouldn’t be able to go there. That’s the country we really know well.
22.No gardiya, or non-Aboriginal people, stop us going out to the Camballin area today.’
Mr Watson is a registered native title claimant over the exploration licence area. Neither Mr Narngarin nor Mrs Puertollano are named as registered native title claimants on the Nyikina and Mangala Claim. Mr Narngarin describes himself as one of the senior people for the Nyikina and Mangala claim group, speaks the Nyikina language and is widoo or a ‘boss man’ for his mob. Mrs Puertollano says that her father’s mother, Yalaba, and her father, Loolya, were part of the Nyikina people and describes the exploration licence area as her father’s traditional land area. Mr Narngarin also says that the exploration licence area covers part of his country, and both Mr Narngarin and Mrs Puertollano say that they have been to the area many times. On this basis, I find that Mrs Puertollano and Mr Narngarin are members of the claim group and I have accepted that both of them can speak about community and social activities and sites relevant to the claim group. Both Mr Narngarin and Mrs Puertollano’s evidence is consistent with that of Mr Watson.
Community or social activities (s 237(a))
The Tribunal must consider whether there is a real risk of substantial interference with the community or social activities of the native title party.
My finding is that the range of activities permitted by an exploration licence is likely directly to interfere with the community or social activities of the native title party. That is, there is a real risk of substantial interference with them. The following findings of fact support this conclusion.
The Looma Aboriginal community is located approximately 8.8km south west of the tenement (I accept the Government party’s evidence on this point) and there is evidence that some members of the claim group live there.
Members of the native title party claim group regularly catch fish and hunt for food and bush tucker in the exploration licence area. Given the number of ceremonial sites within the area I also infer that traditional ceremonies are carried out there.
There is a creek, Uralla creek (Yirala), and billabongs in the tenement area with tortoise and freshwater fish, prawns, crocodile, stingray and mussels which the native title claim group access for bush tucker. They also gather and eat water lilies from the billabongs and elsewhere on the exploration licence area. They catch goanna, bush turkey and gather bush onions.
Mr Watson teaches his children about the country and important places in the area.
This evidence establishes that members of the Nyikina & Mangala claim group frequently use the area of the tenement for traditional activities associated with their claimed native title rights. These constitute community and social activities and given the frequency and nature of their occurrence mean that there is a likelihood that they will be interfered with in more than a trivial way.
Sites of particular significance (s 237(b))
The principal evidence under this heading is contained in the affidavits of John Watson and Darby Narngarin and the extract from the Register of Aboriginal Sites provided by the Government party. My finding is that there are sites of particular significance to the native title party in accordance with their traditions on the exploration licence area.
The factual basis for my finding is that there are mythological and ceremonial sites which I accept are special places to the native title party.
The extract from the Register of Aboriginal Sites lists eleven registered sites within the area of the tenement:
Nyapinyarta (Site ID 13141) is on the Interim Register, has closed access, no gender restrictions and is a mythological site. The Register extract notes that the information was provided on 20 April 1982 and the informant contact details have been suppressed.
Liveringa (Site ID 13184) is on the Interim Register, has closed access, no gender restrictions and is a burial site. The Register extract notes that the information was provided on 20 April 1982 and the informant contact details have been suppressed.
Walangari (Site ID 13185) is on the Interim Register, has closed access, no gender restrictions and is a ceremonial site. The Register extract notes that the information was provided on 20 April 1982 and the informant contact details have been suppressed.
Walangari Camp (Site ID 13186) is on the Interim Register, has closed access, no gender restrictions and is a ceremonial site. The Register extract notes that the information was provided on 20 April 1982 and the informant contact details have been suppressed.
Rice Hill (Site ID 13328) is on the Interim Register, has closed access, no gender restrictions and is a mythological site. The Register extract notes that the information was provided on 1 January 1980 and the informant contact details have been suppressed.
Erskine Waterhole (Site ID 13329) is on the Interim Register, has closed access, no gender restrictions and is a mythological site. The Register extract notes that the information was provided on 1 January 1980 and the informant contact details have been suppressed.
Djiminggada (Site ID 13331) is on the Interim Register, has closed access, no gender restrictions and is a mythological and ceremonial site. The Register extract notes that the information was provided on 1 January 1980 and the informant contact details have been suppressed.
Nalmanangarra (Site ID 13332) is on the Interim Register, has closed access, no gender restrictions and is a ceremonial site. The Register extract notes that the information was provided on 1 January 1980 and the informant contact details have been suppressed.
Sand Ridge 1 (Site ID 13333) is on the Interim Register, has closed access, no gender restrictions and is a ceremonial site. The Register extract notes that the information was provided on 1 January 1980 and the informant contact details have been suppressed.
Sand Ridge 2 (Site ID 13334) is on the Interim Register, has closed access, no gender restrictions and is a ceremonial site. The Register extract notes that the information was provided on 1 January 1980 and the informant contact details have been suppressed.
Wuindjungurru (Site ID 13335) is on the Interim Register, has closed access, no gender restrictions and is a ceremonial site. The Register extract notes that the information was provided on 1 January 1980 and the informant contact details have been suppressed.
As noted above, contact details for all the sites have been suppressed. Suppression of the informant’s identity and their closed status suggest that they are special places to the Aboriginal people of the area.
On the tengraph map submitted by the Government party, site 13329 is shown at the extreme north eastern corner of the tenement area; sites 13328, 13332, 13333 & 13334 are within the north east corner of the tenement area; site 13331 is located just outside the eastern boundary; sites 13335 & 13141 are located in the western quarter of the tenement area; and sites 13184, 13185 & 13186 are located outside the south western corner of the tenement area. The Register of Aboriginal Sites extract says that the coordinates are indicative locations and may not necessarily represent the true centre of a site, especially where it is shown as ‘closed’ or ‘vulnerable’. It also says that the location of eight of the sites is unreliable, with sites 13329, 13332 and 13333 being described as reliable. The Site Search Map confirms that all the sites except 13184, 13185 and 13186 are somewhere within a 1 kilometre area all, or part, of which fall on the tenement area. Sites 13184, 13185 and 13186 are shown by reference to a 10 square kilometre area, the centre of which is not on the tenement area but covers Looma Aboriginal Community. A small part of the 10 kilometre area intersects with the south-western edge of the tenement.
It is difficult to match up the sites on the Register with those referred to in the affidavits of Mr Narngarin and Mr Watson. The only direct matches are Rice Hill (Moolooman) (Site 13328) and Nalmanangarra (Site 13332). Mr Watson refers (para 12) to Wirndingoorroo, an area near Snake Creek which may be the same place as Wuindjungurru (Site 13335) but is identified by different phonetic spelling.
Apart from these three sites which correlate with those on the Register there is other evidence of a considerable number of sites in the exploration licence area. Mr Narngarin refers to Bajarranyoordany, Koonyoonoonyoonookarda (a special place at the southern end of Uralla Creek), Bilikanyaboo (where Kamba, or freshwater-crab man, was put through the law), as well as places where Kamba travelled called Wirlimbookarda, Libirrinbirriny, Wooloobarda and Jarralkarda. Mr Narngarin also refers to a place called Nalmangangarra which is also referred to by Mr Watson and described as a dreaming place for barniy, or goanna. Mr Watson refers to Jirmanykarda inside the eastern boundary of the exploration licence area that has a dreaming song about grinding seeds. Mr Watson also refers to Bajarranyoordany (associated with a special dreaming story about the Night Heron man), Koonyoonoonyoonookarda (as referred to by Mr Narngarin), Ngarrbanyarda (an area on Uralla creek where there are some billabongs), Mayardajilbidi (an area on the west bank of Uralla creek), Woolooroongan (the area where Willumbah outstation is located within the exploration licence area), Nalmangangarra (as referred to by Mr Narngarin), Jooloojoolookoordany (a special area around the Erskine Bore area which may be site 13329 – Erskine waterhole), Boolarr (an area on the eastern side of Nemile Dam), Iljamalkarda (the Le Lievre swamp outside the eastern boundary of the exploration licence area) and Laboonarda (the Spinifex Tank area). Mr Watson also refers to the areas travelled by Kamba, including Nimayil, Yirarla Creek, Wirlimbookarda, Libirrinbirriny and Bilinganyaboo. Mr Watson refers to an area north of the exploration licence area called Yarrawardany, which he describes as special place from the Dreaming, and Loonboodaboo 12 kilometres south east of the exploration licence area where there are hot springs and cave paintings. While it is not possible directly to match these sites with the Sites Register the evidence of Mr Narngarin and Mr Watson confirms that the exploration licence area has a considerable number of sites, some of which are not shown on the Register.
The fact that a site is on the Register does not mean that it is necessarily a site of particular significance to the native title party in accordance with their traditions. However, the evidence of Mr Narngarin and Mr Watson in relation to sites not on the Register clearly establishes them as sites of particular significance to the native title party in accordance with their traditions. Those which are on the Register and correlate to sites referred to in the affidavits are also sites of such significance. The nature of sites on the Register which are not specifically identified in the affidavit evidence (ceremonial, mythological, burial and with closed access) combined with the clear evidence that this is the country of the native title party permits a finding that all the sites referred to are of particular significance to the native title party in accordance with their traditions. There is overwhelming evidence of a large number of sites of the kind referred to in s 237(b) of the Act on and in the near vicinity of the tenement area.
I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act 1972 (WA) are sufficient to ensure that it is unlikely (there is no real risk) of the area or sites being interfered with. The Tribunal has often but not necessarily held this to be the case. Where an area is rich in sites or the whole area is of particular significance, the Tribunal has found that the Aboriginal Heritage Act is inadequate to provide the necessary protection without negotiations with the native title party. (See cases cited in Walley (WO01/179 and WO01/180) at [51].)
The grantee party has provided no evidence of what it intends to do to protect the areas or sites identified by the evidence. A number of options are discussed in the Government party’s Guidelines for Aboriginal Consultation by Mineral and Petroleum Exploration, which is sent to each licensee but there is no evidence that the grantee party has considered these in the circumstances of the grant of this tenement. Even though I accept that the grantee party will obey the law this is a case where the number and nature of sites of particular significance is such that there is a real risk of interference with them unless the normal negotiations under s 31(1)(b) of the Act take place and the location of other sites is only known to the native title party, suggesting that their close involvement with the grantee will be needed if interference with sites is to be avoided.
Determination
The determination of the Tribunal is that the grant of exploration licence 04/1189 to Conquest Mining NL is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
23 August 2002
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