Daisy Lungunan & Others on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/Kimberley Quarry Pty Ltd - [2011] NNTTA 33

NATIONAL NATIVE TITLE TRIBUNAL

Daisy Lungunan & Others on behalf of the Nyikina & Mangala Native Title Claimants/Western Australia/Kimberley Quarry Pty Ltd [2011] NNTTA 33 (2 March 2011)

Application No: WO09/918

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Daisy Lungunan & Others on behalf of the Nyikina & Mangala Native Title Claimants – (WC99/25) (Applicant, native title party)

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The State of Western Australia (Government party)

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Kimberley Quarry Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Helen Shurven, Member
Place:   Perth
Date:   2 March 2011

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 cause major disturbance to land or waters – expedited procedure attracted.

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA)

Cases: Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Mr Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Mr John Sosso
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner
Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Rosas v Northern Territory (2002) 169 FLR 330
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208

Representative of the
native title party:         Ms Ania Maszkowski, Kimberley Land Council
Representatives of the Mr Domnhall McCloskey, State Solicitor’s Office
Government party:      Mr Greg Abbot/Ms Claire Malavaux, Department of Mines and Petroleum
Representative of the
grantee party:               Mr Dave Young, Kimberley Quarry Pty Ltd

REASONS FOR DETERMINATION

On 29 July 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1902 (‘the proposed licence’) to Kimberley Quarry 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, E04/1902, comprises an area of 68.41 square kilometres, located 77 kilometres south-west of Derby, in the Shire of Derby-West Kimberley. It is 100 per cent within the registered native title claim of the Nyikina and Mangala People (WC99/25 – registered from 28 September 1999). No other native title claims overlap the proposed licence area.
On 30 November 2009 Daisy Lungunan & Others on behalf of the Nyikina and Mangala Native Title Claimants (WC99/25) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal (WO09/918).
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the Act’s s 29 notification 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. Directions made by the Hon C J Sumner on 14 December 2009, included that the Tribunal be provided with: contentions of the Government party on or before 22 March 2010; contentions of the native title party on or before 29 March 2010; and contentions of the grantee party on or before 6 April 2010.
A number of conferences were held and compliance dates were extended several times. None of the requests to extend compliance dates were contested by other parties.
The Government party lodged its evidence and statement of contentions on 20 July 2010, and 3 August 2010 respectively.
The native title party lodged an unsigned statement of contentions, an unsworn affidavit of Greg Riley and an unsworn affidavit of Teresa Riley on 12 November 2010. A sworn affidavit of Lauren West, legal officer for the native title party, attesting to how the evidence was collected, was received on 16 November 2010.
The grantee party lodged its statement of contentions on 3 December 2010.
Apart from the sworn affidavit of Lauren West, the contentions and evidence of the native title party are not signed or sworn. Similarly, the contentions of the grantee party are not signed. None of the other parties have objected to these contentions and evidence being accepted in this form. The Tribunal is not bound by the rules of evidence (s 109(3) of the Act). In Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, NNTT WO09/318, WO09/319, WO09/320, WO09/321, [2010] NNTTA 15 (8 February 2010), Hon C J Sumner (at [18]-[28]) summarised the Tribunal’s practice with respect to statements not in affidavit form. The Tribunal held that evidence relating to the matters in s 237 is essential to the making of a determination, and that the best evidence relating to the matters will generally come from the native title holders themselves. While it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is not contested. In this matter, there was no objection to acceptance of the statements in an unsworn format. Some evidence within the documents is contested and I will deal with that on a statement-by-statement basis, as relevant, throughout this determination. Applying these principles to the present case, I am satisfied that the statements are admissible, accept them on their face, and will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362)).
The Listing Hearing occurred on 9 December 2010. The parties agreed that this matter can be determined ‘on the papers’ (i.e. without holding a hearing). I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act).
On 1 February 2011, I was appointed by President Graeme Neate as the Member for the purposes of conducting the inquiry.

Legal principles

Section 237 of the Act provides:

237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:
(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DMP, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I 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) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).

Evidence in Relation to the Proposed Act

The Government party has provided the following documents: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence site; a report and plan from the Department of Indigenous Affairs Register; a copy of the tenement application; a copy of the proposed endorsements and conditions of grant; and a tengraph quick appraisal.
A map prepared by the Tribunal’s geospatial services on 17 January 2011, shows that there are no Aboriginal communities within the proposed licence.

There is one Aboriginal community in close proximity to the proposed licence:

·Bedunburra- located approximately fifteen kilometres north-east of the proposed licence.

There are six Aboriginal communities in the wider area:

·Pandanus Park- located approximately sixty kilometres east;
·Mowanjum- located approximately seventy kilometres north-east; and
·Djimung Nguda, Karmulinunga, Budulah and Burrinunga - all located approximately 67 kilometres north-west of the proposed licence.

DIA documents provided by the Government party and the native title party reveal that there are no sites, registered pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’), within the proposed licence. There is one registered site located approximately ten kilometres north of the proposed licence. There are two registered sites between twenty five and thirty kilometres from the area. The areas around Pandanus Park Aboriginal community and all around the Fitzroy River, which is located approximately 45 kilometres from the proposed licence, appear to be site rich.
Government party documentation establishes the following notable underlying land tenure on the proposed licence:
·National Heritage Listing, 106063, The Kimberley, overlaps by 100 per cent (this does not impact on native title or the grant of the exploration licence, but means that applications for major works must be referred to the Department of Environment, Water, Heritage and the Arts);
·Yeeda Pastoral Lease H649773 overlaps by 89.3 per cent;
·Exploration Permit EP428 overlaps by 100 per cent;
·Geothermal Discrete Area Release G09-145 overlaps by 100 per cent;
·A Quarry CR32595 (Commissioner of Main Roads) overlaps by 0.9 per cent;
·Two Kimberley De Grey Stock Route Reserves CR9697 (Department of Planning and Infrastructure) overlap by 2.7 per cent and 5.9 per cent;
·Repeater Station CR39166 (Telecommunications Commission) overlaps by 0.1 per cent; and
·A Road Reserve overlaps by less than 0.1 per cent.

There is an operating open pit mine in the proposed licence. There is one major road, one minor road, four unknown buildings and a fence line.

According to the Government party quick appraisal documentation, there has been mineral exploration and mining activity in the area from 1965 to the present day. Nine live mining tenements, held by Supajet Pty Ltd, overlap the proposed licence by between 0.1 per cent and 3.5 per cent. Five dead tenements overlap the proposed licence by between less than 0.1 per cent and 95.2 per cent. Of these, one was withdrawn, one was surrendered, one was forfeited and two were cancelled. A Tribunal Overlap Analysis Report on the area shows that two Future Act Objection Applications (WO09/427 and WO09/430) were lodged by the native title party in relation to one of these dead tenements (E04/1830). Both of these Applications were withdrawn prior to acceptance.
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 require that the pastoral lessee is notified of the grant of the licence and of certain exploration activities (refer to conditions 5-6). The following further conditions will be imposed:
7.No excavation, excepting shafts, approaching closer to the Great Northern Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the Great Northern Highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below a depth of 15 metres from the natural surface.
8.No interference with Geodetic Survey Stations Derby8, Trig 21 and Bluff Trig and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Quarry Reserve 32595 and Repeater Station Site Reserve 39166.
10.Mining within a radius of 150 metres of any Australian Telecommunications Commission microwave repeater station being confined to below a depth of 60 metres from the natural surface.
11.No interference with the Australian Telecommunications Commission microwave repeater station ray-line.
Consent to explore on Stock Route Reserve 9697 granted subject to:
12.No exploration activities being carried out on Stock Route Reserve 9697 which restrict the use of the reserve.
In the contentions of the Government party, a further condition (‘the proposed condition’) will be placed on the grant of the proposed licence:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Nyikina and Mangala People, the applicants in Federal Court application no. WAD6099 of 1998 (WC99/25), such request being sent by pre-paid post to reach the Licensee’s address, Kimberley Quarry Pty Ltd, PO Box 4370, Myaree WA 6960, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Nyikina and Mangala People such Regional Standard Heritage Agreement endorsed by peak industry groups as may be offered by the Kimberley Land Council.
This condition will not assist the native title party or the grantee party as there is no such Regional Standard Heritage Agreement presently in existence.
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach) will be imposed:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1927 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 provided by the native title party

The native title party has provided the following documents:
·an unsigned statement of contentions with a copy of the DIA Register;
·an unsworn affidavit of Greg Riley with a copy of the map referred to in the affidavit;
·an unsworn affidavit of Teresa Riley with a copy of the map referred to in the affidavit; and
·a sworn affidavit of Lauren West, representative for the native title party, attesting to the authority of Greg and Teresa Riley to speak for country and the way in which the affidavits were obtained. A copy of the map referred to in Ms West’s affidavit is attached.
The statement of Mr Riley is as follows:
1.My name is Greg Riley. My Aboriginal name is Boogabung. I was born on 15 August 1959 at Numbala Nunga, the old native hospital in Derby, Western Australia.
2.I am a member of the Nyikina & Mangala Native Title Claimants (WC99/047).
3.I know the area where Kimberley Quarry Pty Ltd, “the grantee party”, has applied for Exploration Licence Number E04/1902, “the exploration licence area”, very well because it falls on my mother’s and uncle’s country. They were part of the Nyikina tribe.
4.I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
5.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
6.The exploration licence area falls within Nyikina country.
7.I know this country because I have been right through there with a chopper. I also went mustering through this area for Yeeda station. I used to muster from the East Kimberley/West Kimberley border to Derby. We mustered the whole station.
8.When I go to the exploration licence area I go hunting. I hunt for goanna, kangaroo, turkey, black head snake and blue tongue lizard.
9.We also collect yams from the trees.
10.It is important for our kids to go to this area so that we can teach them how to catch goanna and collect bush tucker.
Interference with sites of particular significance
11.There are special trees in the exploration licence area. If you dig up the tree, people will get sick. Anybody will get sick. The trees are part of the dreaming.
12.There are burial grounds at Mt Clarkson and in the hills.
13.There are ceremonial grounds outside the exploration licence area.
Major disturbance to land or waters
14.The mining company needs to come and talk to us. They need to talk to Lucy Marshall and ask the elders.
15.They need to talk to the Nyikinya tribe.

The statement of Ms Riley is as follows:
1.My name is Teresa Riley. My Aboriginal name is gurdeye. I was born on 8 May 1956 at the Derby Native Title Hospital, Western Australia.
2.I am a member of the Nyikina and Mangala Native Title Claimants (WC99/25).
3.I know the area where Kimberley Quarry Ltd, “the grantee party”, has applied for Exploration Licence Number E04/1902, “the exploration licence area”, very well because I am a traditional owner for that country through my grandfather (mother’s father). I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A”.
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 falls within Nyikina country.
6.We go to the exploration licence area for hunting. When we go there we hunt goanna, long neck turtle, baby crocodile, bush turkey, porcupine and blue tongue lizard.
7.We also go to the exploration licence area all the time for fishing. We catch bream, catfish, long neck turtle, barramundi and baby crocodile.
8.There are also lots of bush fruits and bush tucker in the exploration licence area. There are green plums, gubinge, bush almond nut, bush onion and sugar bags. We also collect seeds from this area.
9.When we go to the exploration licence area, we take our children. We teach them how to cook and eat bush tucker. We take them in the wet season. You can camp there.
10.The old people used to cut spears from the trees in the exploration licence area.
Interference with sites of particular significance
11.The old girl Lucy Marshall told us that there is a sacred place in the exploration licence area called malaji. The mining company is not allowed to dig up or take the trees from this area. If they dig up those trees they will get sick. There was a bloke who dug up those trees called Malcolm Douglas and he died.
Major disturbance to land or waters
12.I am worried about mining companies coming onto our country without permission. They might die there, and we might get into trouble. The Traditional Owners might get sick if the miners disturb country or they might get sick themselves.
13.The proper way is to ask the Traditional Owners. The Land Council needs to tell the mining companies to talk to us.
While not named as registered native title claimants on the Nyikina and Mangala claim, I accept that Mr Riley and Ms Riley have authority to speak for the country on behalf of the native title party. This is confirmed by the supporting affidavit of Ms Lauren West.
The affidavit of Ms West is as follows:
1.I am employed as a Legal Officer by the Kimberley Land Council Aboriginal Corporation (“KLC”) and work in the KLC’s Broome Office.
2.On 15 October 2010 I travelled with my colleague, Reece O’Brien, to Derby to meet with Lucy Marshall, one of the senior people for the Nyikina and Mangala Native Title Claimants, regarding the grantee party’s application for exploration licence E04/1902 (the “exploration licence area”).
3.Mr O’Brien and I met with Ms Marshall at approximately 12:30 pm on 15 October 2010. We showed Ms Marshall a map of the exploration licence area, which is annexed to this affidavit and marked “A”.
4.After Ms Marshall looked at the map, she told Mr O’Brien and me that while she knew the area, the Charles and Riley families living at Pandanus Park were the traditional owners for the exploration licence area and should speak for that land.
5.On 28 October 2010 I travelled with my colleague, Maria Lovison, to Pandanus Park. We arrived at approximately 9:30am and met with members of the Riley family. I showed the Riley family the annexed map of the exploration licence area. They asked whether Ms Lovison and I would bring Ms Marshall to Pandanus Park so that she could sit with them while we discussed the exploration licence area.
6.Ms Lovison and I then travelled to Derby to see whether Ms Marshall would accompany us to Pandanus Park to meet with the Riley family. We were unable to find Ms Marshall and were later told that she was attending a funeral in Broome.
7.On 5 November 2010 I again travelled with my colleague, Ms Lovison, to Derby. We picked Ms Marshall up at about 10:00am and the three of us then drove out to Pandanus Park. Ms Lovison, Ms Marshall and I arrived at Pandanus Park at around 10:30am and met with Teresa Riley. I showed Ms Riley the annexed map of the exploration licence area. Ms Marshall, Ms Riley, Ms Lovison and I then discussed the exploration licence area. Ms Lovison and I then asked Ms Riley some questions about the exploration licence area in the presence of Ms Marshall. I took notes of what Ms Riley said, which I used to prepare Ms Riley’s affidavit.
8.On 8 November 2010, Ms Lovison and I again travelled to Pandanus Park and met with Greg Riley at approximately 9:00am. I showed Ms [sic] Riley the annexed map of the exploration licence area. Ms Lovison and I discussed the exploration licence area with Mr Riley, in the presence of several other members of the Riley and Charles families, and we asked Mr Riley some questions about the exploration licence area. I took notes of the discussion, which I used to prepare the affidavit of Mr Riley.
The grantee party has provided a statement of contentions.

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of E04/1902 and the 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 v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The Government party contentions state (at 4) that the grant of the proposed tenement is not likely to interfere directly with the carrying on of the community or social activities of the native title party because of a number of considerations, including:
·there are no Aboriginal communities situated on the proposed licence;
· special conditions attach to activity on Reserves 32595, 9697 and 39166, which are located on the proposed licence (I note, however, that this paragraph refers to conditions relating to ‘mining on reserve land’ [emphasis added] and the proposed licence in this matter is a licence for exploration);
· special conditions attach to activity on pastoral leasehold land situated on the proposed licence; and
· s 63 of the Mining Act 1978 (WA) requires the holder of the proposed licence to fulfil certain conditions such as making safe any holes, pits, trenches etc.
The native title party evidence refers to hunting and fishing on the proposed licence area. The evidence of Mr Riley provides that ‘When I go to the exploration licence area I go hunting. I hunt for goanna, kangaroo, turkey, black head snake and blue tongue lizard’ (at 8). Similarly, Ms Riley states that ‘We go to the exploration licence area for hunting. When we go there we hunt goanna, long neck turtle, baby crocodile, bush turkey, porcupine and blue tongue lizard’ (at 6). In relation to fishing, Ms Riley says ‘We also go to the exploration licence area all the time for fishing. We catch bream, catfish, long neck turtle, barramundi and baby crocodile’ (at 7). When Ms Riley refers to ‘we’ in her affidavit, it is not clear who she is referring to.
The evidence refers to gathering bush tucker in the proposed licence and also to taking young people to the area to teach them about the country. Mr Riley refers to collecting yams from trees (at 9) and Ms Riley says ‘There are also lots of bush fruits and bush tucker in the exploration licence area. There are green plums, gubinge, bush almond nut, bush onion and sugar bags. We also collect seeds from this area’ (at 8). In relation to teaching the young people, Mr Riley states ‘It is important for our kids to go to this area so that we can teach them how to catch goanna and collect bush tucker’ (at 10) and Ms Riley states ‘When we go to the exploration licence area, we take our children. We teach them how to cook and eat bush tucker. We take them in the wet season. You can camp there’ (at 9). Ms Riley also says that ‘The old people used to cut spears from the trees in the exploration licence area’ (at 10).
Both Mr Riley and Ms Riley state they have a close connection with and knowledge of the land which is the subject of the proposed licence. Mr Riley states that he knows the area very well because it falls on his mother’s and uncle’s country (at 3). He has been through the country ‘with a chopper’ (at 7) and he has gone ‘mustering through this area for Yeeda station’ (at 7).
The evidence provided does not deal with the frequency of the activities referred to, when they occur (times of day, times of year etc), who is involved, or where, specifically, the activities occur.
That an Aboriginal community (Bedunburra) is located in close proximity to the proposed licence (approximately 15 kilometres from the boundary) suggests that social and community activities of an intensive nature occur near the area. On the other hand, no evidence is provided as to the difficulty or ease with which members of the community can access the area or how often they go there. Neither Mr Riley or Ms Riley state that they live in the Bedunburra Aboriginal community, but rather, at Pandanus Park, which is located approximately 60 kilometres east of the proposed licence. Mr Riley and Ms Riley do not refer to visiting the community close to the proposed licence or accompanying members of that community to the proposed licence for the purposes of conducting social and community activities. It would have been probative and helpful for the Tribunal if some evidence had been provided, in addition to the evidence provided here, by a member of the Bedunburra community, being a native title party member living closer to the proposed licence.
The evidence of Mr Riley and Ms Riley differ somewhat in their descriptions of the types of activities that occur on the proposed licence - they both refer to hunting and collecting bush tucker, but refer to some different animals and plants. Ms Riley’s evidence refers to accessing the area for fishing, while Mr Riley does not mention fishing. The difference between these statements may be attributed to a lack of specificity in the evidence - the activities described appear not to be specifically linked to the proposed licence but seem to be described in the context of Nyikina and Mangala country as a whole.
The grantee party raises some concerns with aspects of the native title party evidence. The grantee party contests that fishing and other water related activities occur on the proposed licence because the area does not have any ‘rivers, creeks, dams or other areas of water.’ The grantee party appears to contest that community and social activities occur on the proposed licence at all, saying ‘We have operated in the area for over 10 years and never seen any persons or evidence of persons being in the area.’ They further contend that ‘Due to the above discrepancies I believe the native title party is confusing the area we are seeking to be granted as an exploration lease with another area or location in their jurisdiction.’
It appears that mining, and other kinds of activity, has and continues to, occur on the proposed licence. There are multiple mining tenements that overlap, but not to any significant extent; there is an active exploration permit that overlaps entirely; a pastoral lease overlaps 90 per cent of the proposed licence and there is an operating open pit mine in the area. I accept that these activities are likely to have impacted on the carrying on of the community or social activities of the native title party to a significant extent. The native title party has not provided any evidence as to how they have coped with the restrictions and difficulties imposed by this work on the proposed licence.
The Tribunal has found, on numerous occasions, that because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with native title party community or social activities, except in an incidental and insubstantial way. In this matter, I am not satisfied that the evidence establishes that the activities of the kind referred to in the statements of Mr Riley and Ms Riley occur on the proposed licence. If such activities are carried out on the proposed licence site, I do not believe that the types of exploration activities likely to be undertaken, and their episodic nature, is likely to interfere with the conduct of those community and social activities. This is more so when considering that the area of the native title party’s registered claim covers approximately 27,200 square kilometres and the proposed licence area is 68.41 square kilometres. There may be other areas in which the native title party can conduct those stated community and social activities, if there was to be temporary interference as a result of the exploration activities (Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003)), Mr John Sosso, at [43]-[44].
The proposed licence site is for exploration activities only. A mining lease would be required for any mining activities, under a separate future act procedure.
Taking all of these factors into account I find that the exploration activity is not likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208 at (223) that the very thought of intensive exploration activities could interfere with ‘community life’ (at 14), I adopt the findings of Deputy President Sumner in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted merely if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. In my view, something more than the mere thought or existence of the grantee party must be shown to indicate direct interference in the area that is substantial and not trivial.

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 chance or risk) interference with areas or sites of particular (special or more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows that there are no registered sites within the proposed licence, but this does not mean there may not be sites or areas of particular significance to the native title party over the proposed licence area, or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on sections 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (‘Butcher Cherel’) (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In Butcher Cheryl the Tribunal found that although there were sites of particular significance in the area of the tenement, and even in the absence of an RSHA, AHA protection was sufficient because of evidence of the positive intentions of the grantee party. In the present matter, an RSHA does not apply as the proposed licence is in the Kimberley region, there are no sites of significance registered with the DIA within the proposed licence, and the grantee party has expressed a desire to build a relationship with local indigenous communities.
In his statement (at 11), Mr Riley says that ‘There are special trees in the exploration licence area. If you dig up the tree, people will get sick. Anybody will get sick. The trees are part of the dreaming’. He states (at 12) that ‘There are burial grounds at Mt Clarkson and in the hills’. Mr Riley also says (at 13) that ‘There are ceremonial grounds outside the exploration licence area’. Similarly, Ms Riley refers to special trees in the proposed licence area. She says (at 11): ‘The old girl Lucy Marshall told us that there is a sacred place in the exploration licence area called malaji. The mining company is not allowed to dig up or take the trees from this area. If they dig up those trees they will get sick. There was a bloke who dug up those trees called Malcolm Douglas and he died’.
The native title party contends that interference with sites of particular significance is likely because the proposed licence falls within an area that is ‘site rich’. Their contentions assert that, due to the practical difficulties with avoiding interference with sites in site rich areas, where not all sites may be included on the DIA Register, ‘In the absence of evidence from the Grantee Party, the presumption will be that the relevant interference is likely’ (at 18).
The grantee party contends that there are no Gubinge trees within the proposed licence area. In reference to the special trees which must not be dug up, neither Mr Riley or Ms Riley describe the trees as being Gubinge trees, however, the native title party contentions mention Gubinge trees.
I will now deal with the issues raised by the native title party with respect to sites of particular significance.
Sacred site, malaji, where there are special trees - No evidence has been provided as to the location of this site except describing it (at 11 in both statements) as being ‘in the exploration licence area’. It appears that the grantee party contests that this site is located in the exploration licence area. I accept that this site is likely to be of particular significance to the native title party, because it is associated with a dreaming, and because of the evidence that people get sick if they dig up the trees. The native title party is required to provide sufficient detail and specificity in order to allow the Tribunal to make a predictive assessment in accordance with s 237(b) of the Act. The evidence provided is not sufficiently specific so as to establish that this site is located in the proposed licence, and hence I am unable to find that there is likely to be interference with it. There is no evidence to suggest that ‘Malcolm Douglas’, referred to in Ms Riley’s affidavit as being someone who died after digging up the special trees, is associated with the grantee party. If this site is located on the proposed licence, by virtue of this determination, the grantee party has been put on notice of its existence. I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA.

Burial grounds at Mount Clarkson and in the hills - I understand that graves and cemeteries are places of great importance in most cultures and it is of great importance to protect and preserve them. I have no difficulty in finding that these burial grounds would be of particular significance to the native title party. The Tribunal geospatial services map shows Mount Clarkson to be located approximately 25 kilometres north-east of the proposed licence. The map also shows that a DIA registered site is located at Mount Clarkson; this is likely to be the burial ground referred to by Mr Riley. Presumably, ‘the hills’ that Mr Riley refers to are the hills surrounding Mount Clarkson, also located a significant distance from the proposed licence. The distance of these sites from the subject area leads me to a finding that burial grounds are not likely to be interfered with by exploration activity within the proposed licence.
Ceremonial grounds outside the exploration licence area – Mr Riley specifically identifies the ceremonial grounds as being located outside the proposed licence. Due to their location outside the area where exploration activity is going to occur, I find it unlikely that this site will be interfered with. In respect that the native title party may be concerned that the site will be interfered with by the grantee party in travelling to and from the proposed licence, by virtue of this determination, the grantee party has been put on notice of the existence and general location of this site.
Proposed licence located within a site rich area - The Tribunal map shows that the closest DIA registered site is located approximately 10 kilometres from the boundary of the proposed licence. The next closest sites are 25 to 30 kilometres away. The map shows that the areas around Pandanus Park and Fitzroy River contain numerous registered sites and are site rich areas, but these are located over 40 kilometres from the proposed licence. Based on the evidence, I accept that the areas around Pandanus Park and Fitzroy River are site rich, but I do not find the proposed licence to be in a site rich area.
On the basis of the evidence before me, I am unable to conclude that there are any sites of particular significance to the native title party within the proposed licence. If there are sites of significance within or in the vicinity of the proposed licence, I believe the protective regimes under the AHA should be sufficient to ensure that there is unlikely to be interference with these sites. Further, by virtue of this determination, the grantee party has been put on notice of the existence of any sites referred to in the evidence that may be in, or in the vicinity of, the proposed licence.

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

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community, generally, to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion [74]-[79] and the cases cited therein).
Both Mr Riley and Ms Riley express concern that the grantee party needs to speak with the native title party before accessing the proposed licence. Mr Riley says (at 14-15) ‘The mining company needs to come and talk to us. They need to talk to Lucy Marshall and ask the elders. They need to talk to the Nyikina tribe.’ Similarly, Ms Riley says (at 12) ‘I am worried about mining companies coming onto our country without permission. They might die there, and we might get into trouble. The Traditional Owners might get sick if the miners disturb country or they might get sick themselves.’
I accept that the presence of strangers on the subject area may be of concern to the native title holders. The starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural concerns about unauthorised access, in terms of the native title holders’ traditional laws and customs, alone, cannot form the basis of a finding of major disturbance. There must be some physical disturbance over and above that which will be prevented, or made unlikely, by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that can be pointed to are the exploration activities to be conducted by the grantee party. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party, including in relation to the grantee party entering the land without speaking to them, is not sufficient to establish that major disturbance is likely to occur.
I find that there is not likely to be major disturbance to land or waters in this case.

Determination

The determination of the Tribunal is that the grant of exploration licence E04/1902 to Kimberley Quarry Pty Ltd (grantee party) is an act attracting the expedited procedure.

Helen Shurven
Member

2 March 2011