Delores Cheinmora & Others on behalf of Balanggarra Native Title Claimants/Western Australia/Swancove Enterprises Pty Ltd

[2008] NNTTA 8

NATIONAL NATIVE TITLE TRIBUNAL

Delores Cheinmora & Others  on behalf of Balanggarra Native Title Claimants/Western Australia/Swancove Enterprises Pty Ltd, [2008] NNTTA 8 (21 January 2008)

Application No:        WO06/447

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

Delores Cheinmora & Others on behalf of Balanggarra Native Title Claimants (WC99/47) (native title party)

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The State of Western Australia (Government party)

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Swancove Enterprises Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Hon C J Sumner, Deputy President

Place:    Perth
Date:     21 January 2008

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

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA), ss 8, 63

Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner

Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362

Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250

Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391

Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243

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

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027

Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1

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

Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32

Counsel for the

native title party:             Mr Robert Powrie, Kimberley Land Council

Representative of the

native title party:             Mr Robert Houston, Kimberley Land Council

Representatives of the     Mr Rod Wahl, State Solicitor’s Office

Government party:         Mr Greg Abbott, Department of Industry and Resources

Representative of the      Ms Melissa Greer
grantee party:                 Hetherington Exploration & Mining Title Services Pty Ltd

REASONS FOR DETERMINATION

1. On 24 May 2006, the government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/3591 (‘the proposed licence’) to Swancove Enterprises 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).

2. The proposed licence comprises an area of some 232.71 square kilometres, is located 227 kilometres north-westerly of Wyndham in the Shire of Wyndham and East Kimberley, and is entirely overlapped by the registered native title claim of the Balanggarra People (WC99/47).

3. On 14 September 2006, an objection was lodged with the Tribunal by Delores Cheinmora, Kenny Morgan, Vernon Gerrard and Others on behalf of the Balanggarra (Combined) Native Title Claimants (WC99/47 – registered from 9 December 2004).

4. In accordance with standard practice in expedited procedure matters, on 5 October 2006, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allowed a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. On 13 June 2007, following a series of conferences and agreed amendments to directions to facilitate concurrent mediation assistance pursuant to s 150 of the Act, the grantee party reported that parties had reached an impasse and requested that the matter proceed to inquiry. The dates for compliance with directions were subsequently further amended to permit the native title party additional time to collect evidence for the inquiry.

5. The Government party lodged its contentions and evidence by 13 August 2007 and the native title party by 22 October 2007 following further delays in the provision of a sworn affidavit.  The grantee party indicated it would rely on the Government party's contentions and provided a brief additional statement on 24 October 2007.

1. On 1 November 2006 at a Listing Hearing parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’, that is, without holding a hearing.  I am satisfied that the objection can be adequately determined on the papers (s 151(2) NTA).

Legal principles

1. 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.’

1. In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that the Mining Act has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been modified.

2. The modified conditions are stronger than those considered in Walley. In particular Standard Condition 2 now contains the additional requirement that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act (inserted post Walley) which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used.  Before assessment the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from them that the proposed activities are acceptable.

3. With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41].  In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopsis J) rejected an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision has now been appealed to the Full Federal Court and judgment was reserved on 16 November 2007.

Evidence in relation to the proposed act

1. Government party documentation establishes the underlying land tenure of the proposed licence area to be principally vacant crown land (more than 87.3 per cent).  A national park vested in the Department of Environment and Conservation is proposed for 89.2 per cent of the total area.  Tengraph mapping indicates that this includes the current vacant crown land area in addition to onshore waters and islands to the extent that they lie within the external boundaries of the proposed licence.  The Tengraph Quick Appraisal records a number of watercourses in the subject area, a waterhole, coastal cliffs and areas of reef and mangrove.  There are no Aboriginal communities within or in the vicinity of the proposed licence.

2. The area of the proposed licence has previously been the subject of limited exploration as evidenced by DoIR’s Quick Appraisal, generated on 19 March 2007. The Quick Appraisal records one pending exploration licence application overlapping the proposed licence by 88.6 per cent, in addition to one ‘dead’ exploration licence active between December 2004 and November 2005 (encompassing the same area as the proposed licence) and three ‘dead’ temporary reserves (titles similar to exploration licences granted pursuant to s 276 of the Mining Act 1904 (WA)) active for less than eight months in 1976-1977. Research conducted by the Tribunal shows that abutting tenement application E80/3596 is also the subject of an active expedited procedure objection application by the native title party.

3. 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 to be imposed relate to:

• the requirement for written consent by the Minister responsible for the Mining Act 1978 (WA) prior to mining (which includes ‘fossicking, prospecting and exploring for minerals, and mining operations’ as defined in s 8 of the Mining Act) on the foreshore, seabed or navigable waters (condition 5);

• restrictions on mining in proximity to Geodetic Survey Stations (condition 6); and

• the requirement for the grantee to provide a detailed exploration and access program including environmental impact and management proposals prior to commencing any ground disturbing activity in the area of land designed as PNP 215 (the proposed national park), to report on an annual basis, to undergo an inspection when activities are completed if required, to abide by restricted access conditions if imposed and to take steps to wash down vehicles and equipment prior to accessing the area (conditions 7-11).

1. In addition Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) are included on grant of title drawing the licensee’s attention to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations, 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. The licensee is also advised to contact the Department of Conservation and Land Management (now the Department of Environment and Conservation) for information on the management requirements for rainforest areas and the location of any rainforest monitoring sites in the tenement area.

2. Searches of the DIA Register of Aboriginal Heritage Sites, provided by the Government party, reveal no registered Aboriginal Sites within the tenement area.  Two registered sites are located between 8-11 kilometres south of the western end of the proposed licence area, near Curran Point:

• Site ID 14801 – Curran Trig (interim register, open access, no restrictions)

• Site ID 14800 – Gaingauru (mythological, skeletal material, burial and painting, permanent register, closed access, no restrictions)

Native title party evidence

1. The native title party’s evidence includes the affidavit of Dolores Cheinmora affirmed 22 October 2007 and made in the following terms:

   ‘I Dolores Cheinmora, Pensioner, of Kalumburu Community in the State of Western Australia solemnly and sincerely declare and affirm THAT:

   1.    My name is Dolores Cheinmora. I am a member of the Balanggarra Native Title Claimants and have lived at Kalumburu since I was small child. I was 16 when the Japanese bombed Kalumburu.  After the war my people shifted to Tingoony paddock (near the Mission).

   2.    I have given my word many times for my country.  We made the Balanggarra claim for our country.  My name is the first name on that claim.  We have been working on that claim for too many years now.  All the people for that Balanggarra claim come together to look after the country.  They always ask me about the country because I know those stories and I tell them.

   3.      My wulu place is Pirrikoo which is within the exploration tenement area and is near to where the mining company, Striker Resources was digging for diamonds.  Wulu place means the father found him there.  It is where my father found me as a spirit.  This is part of my country.  I was born in the bush near Cape Londonderry.  This is still part of my country.  I came to the mission when I was a baby because my mother was very sick.

   4.      My father’s name is Rosando.  His country is an island called Yilyamirri, and that’s his name too.  Those islands and the saltwater around the islands which is now called Faraway Bay are part of our country and are partially within the exploration tenement area.

   5.      My father had four brothers - May Smith’s father, Magdaline’s father, Gwen’s husband’s father and Mootoo Mootoo.  All proper blood brothers, part of one big mob.  My father and his brothers are the bosses for that Gwini side which is also within the exploration tenement area.  They looked after that Gwini country from King George right to Lalpayi near Drysdale River.

   6.      My father owned all those places at Cape Londonderry, just like my father’s father.  They call that place Jalarr.  Me and my older brother, Willy, were born at Jalarr.  His wulu place was Sir Graham Moore Island.

   7.      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

   8.    The exploration licence area falls within Balanggarra country.

   9.      I used to go out to Jalarr and Cape Londonderry on school holidays when I was a kid and still travel to our country today.  I am getting older now but still go and look at my country - my last visit was last year.  I am still teaching my children and my nephews about the country.  I still go and see what those fellows with the diamonds are doing in my place.

   10.    We get bush tucker from our country and we get oysters, turtle and fish.  There is the bush yam and wild honey and bush blackberries and all kinds of tucker.  I have taught my children how to get bush tucker and now I teach my grandchildren the same way I was taught.  I do this by taking them out and tell them to watch me while I dig them.  Once they have seen me do this I tell them to try it themselves.  This is the way we teach the young people. They got to watch and then do it.  That is the hard way to learn.  I was told to look, to kalarr.  That means to look.  That is how we learn.  I am getting too old now and the young people have to do it and look after the country.

   Interference with sites of particular significance

   11.    There are plenty of Dreamtime Snakes in my country, including inside the exploration licence area but I do not talk about them to just anybody.  You have to be careful with Dreamtime Snakes as they can be dangerous things.  Those Snakes travelled right through the Londonderry country and they are living at that place in King George River.  They went through my father’s country and they went into the sea.  These places are important to me. I cannot let them go. I have to make sure that nobody mucks around with those things, they are our things and are not for anybody else.

   12.    There are Dreamings all in the country and within the exploration licence area and the right people have to talk about them.  All the bosses for country not just anybody.  We cannot just go anywhere.  The mining companies have to talk to us to make sure that they don’t make a mistake in the country.

   13.    Some companies have been doing that from before.  This new company should make sure they talk to me about my country.  It is against the Aborigine rules to just walk about anywhere.  You have to talk to the bosses. Even those other Balanggarra people who are not from that country there they should ask me first before they go there.  I will let them go because they are my relation.  Balangarra mob are all related.

   Major disturbance to land or waters

   14.    A lot of mining companies look around my country.  Before they would just come and look around and they never talked to people properly.  That is wrong.  That was before native title and those mining companies did not ask us.  We were worried when they came into the country.  Now today we have native title to help us with mining companies and anybody who wants to come into our country.  Sometimes the mining companies do not listen to us and we are worried about that.

   15.    If they do not come and talk to us properly they might make trouble for people.  They might go to a wrong place and damage it or they might make an argument for the families because we do not know what they are doing in our country.  All the Balanggarra mob are like that, we need to know what is happening otherwise trouble might start up.

   16.    Now today we make them talk to us to make sure that we know what they are doing, where they are going and what is going to happen to our country.

   17.    That diamond mob were digging in our country, they did it in a good way because they talked to us.  We went with those people to make sure they did not damage any places from the Dreaming.  When they talk to us in a good way we do not have to worry for our country.  We have made agreements with other companies and that means we can work together and not have to worry or have any trouble from that mining mob.

   18.    We are always talking for our country.  We have sent our word to lots of mining companies and to the government too.  It looks like they do not believe us that this is our country.  We know our country from our old people and we are telling our young ones about our country too.  Might be that they might believe us.’

2. Ms Cheinmora’s evidence is uncontested and I accept it.  She is one of the named applicants for the Balanggarra claim and I accept that she has authority to speak on behalf of the native title party and is respected by the claim group for her knowledge of the country.

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450, ([23])). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451, ([26])).  The assessment is also contextual taking account of other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).

1. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and standard conditions to be imposed on exploration licences and the additional conditions/endorsements to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.

2. The Government party’s documentation indicates only limited exploration has occurred in the subject area from which I can infer that this is not an area of significant prior mining or exploration activity which will have already interfered with the native title party’s community or social activities. The evidence of Ms Cheinmora is that the native title party still enjoys occasional access to the area up to the present day and the concerns of the native title party are evidenced through the lodgement of the objection application currently before me, and another objection application regarding adjacent tenement E80/3596. The principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them.

3. Ms Cheinmora deposes ( para 10 of her affidavit) that she and members of her family hunt, fish and gather bush tucker in the subject area and that she has taught and still teaches younger family members to collect bush tucker in the same way that she learned.  Despite her age she has travelled to ‘her country’ as recently as last year for educative visits and to check on diamond exploration occurring in the area (para 9).  Ms Cheinmora deposes (para 3) that diamond exploration operations were ‘near to’ a location called ‘Pirrikoo’.  At the Tribunal’s request the Kimberley Land Council (‘KLC’) on behalf the Balanggarra people provided written clarification as to the location of some of the places referred to in the affidavit evidence and it is apparent that Pirrikoo is an area of country that includes Beta Creek (near the King George River) and the coastal area of Faraway Bay.  Tribunal mapping verified by the KLC places Pirrikoo somewhere between 25 and 55 kilometres south east of the proposed licence area. Kalumburu, where Ms Cheinmora has resided since she was a baby (paras 1 & 3), is some 54 kilometres to the south west of E80/3591 at its nearest point.

4. I can accept that Ms Cheinmora’s visits to country are regular but infrequent. Her evidence is also not specific about the areas visited. Some of them referred to above are not near the proposed licence area.  Historical visits to Cape Londonderry and ‘Jalarr’ which is in the Cape Londonderry region are mentioned in the affidavit,While it is not made clear whether more recent visits are to those locations or elsewhere (para 9), I accept the possibility that some of the contemporary visits are to this area.  Cape Londonderry is located near the north eastern boundary of the proposed licence area and the proposed tenement area extends 22 kilometres to the west of the Cape, and approximately 17 kilometres to the south. There is no specific evidence that visits to this part of the native title party’s country occurs on such a regular and frequent basis that there is likely to be interference with them.

5. In its statement of contentions the native title party submits that members of the group ‘look after Aboriginal paintings, burial places and sites of importance and significance’ within the proposed licence area.  While I am prepared to accept that this may be so, as it is a common obligation imposed on Aboriginal people by traditional law and custom there is little evidence to support  the contention and certainly none that this activity occurs in relation to any specific sites within the tenement area.  Ms Cheinmora’s affidavit with respect to looking after country is limited to the presence of ‘Dreamtime Snakes’ in her country and ensuring ‘nobody mucks around with those things’.  She also says her father and brothers look after country from King George [River] to Lalpayi near the Drysdale River, but this area encompasses the breadth of the land between the Kalumburu and Oombulgurri Aboriginal Reserves (a distance of some 50 kilometres) and the proposed licence is located north of the river mouths in both cases. I can safely infer that this responsibility to look after country extends to the area of the proposed licence but there is little evidence of the community or social activities which this entails in the tenement area and which might be interfered with by exploration.  In Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (at [32]) Member Daniel O’Dea observed that affidavit evidence would have been of greater assistance had the deponents been more explicit as to nature, frequency and location of social and communities activities. I adopt Member O’Dea’s position in that regard for the purposes of this inquiry.

6. The Tribunal must also have regard to the fact that access to the area would be limited to the area in which exploration is taking place and temporary.  While the total area of the licence will be very large (232.71 square kilometres) intensive ground disturbing exploration is only likely to occur at any one time over a small area.  Further, the total area of the Balanggarra claim is 26,096 square kilometres, much larger than the proposed licence area, thus making it less likely that exploration on the licence area will impact on community and social activities which may be carried out more widely over the entire claim area (Cheinmora at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])).

7. Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way.  This is such a case.  My finding is that given the nature and extent of the community and social activities they are not likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.

8. The native title party contentions refer to the following statement by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at p 223) in support of its view that even if there is no direct physical interference, the mere existence of the grantee party on the proposed licence area in circumstances where there has been no negotiation or consultation between the native title party and grantee party is likely to result in direct interference with the carrying on of community or social activities even in the absence of direct physical interference:

   However, in my respectful opinion, there is no justification for requiring a direct interference with community life also to be a physical interference. Section 237(a), in stating the first requirement of an act attracting the expedited procedure, requires that the act does not directly interfere with the community life of the native title holders. It does not say that such direct interference has to be of a physical type. "Community life" might include all sorts of spiritual and the like activities which might be directly interfered with without any physical interference. For example, the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds ten kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed by the thought of such activities. The spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by "community life".

9. In 1998 following Ward, s 237(a) of the Act was amended. The Tribunal has dealt with the effect of the amendment which substituted the words ‘carrying on of the community or social activities’ for ‘community life’ in s 237(a). The 1998 amendments were made to reduce the broad interpretation of the relevant interference given to it by Carr J. (Walley at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1. It is now settled law that the s 237(a) interference must have some negative consequences for the carrying on of community or social activities. Feelings of distress or concern about the activities are, whether of a spiritual nature or otherwise, not on their own sufficient. The mere presence of a grantee party cannot amount to interference with community or social activities

Sites of particular significance (s 237(b))

1. On the predictive assessment approach the Tribunal is required to determine whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35). There are no sites recorded on the Register kept under the Aboriginal Heritage Act within or overlapping the proposed licence, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.

2. The native title party contends that the area is ‘site rich’ because even though there are no sites on the Register, there are a number of unregistered sites in the subject area. Ms Cheinmora’s evidence refers to ‘Dreamings all in the country and within the exploration licence area’ and specifically, ‘Dreamtime Snakes’ which travelled through ‘Londonderry country’ to live at a place in the King George River.  She deposes that ‘these places are important to me’.  While I accept that ‘Londonderry country’ commences in the north eastern portion of the proposed licence, the King George River is a considerable distance to the east and well beyond the tenement boundaries.  Ms Cheinmora also refers to ‘Pirrikoo’ being her wulu place (where her father found her as a spirit and which I accept would be a place of particular significance to her and the native title party) which is said to be within the tenement area ‘near where … Striker Resources were digging for diamonds’.  As noted in para [21] above, mapping by the Tribunal’s Geospatial Unit in accordance with the KLC’s advice places Pirrikoo a considerable distance from the proposed licence area.  The wulu place of Ms Cheinmora’s eldest brother is said to be Sir Graham Moore Island but this group of islands is located over 20 kilometres west-south-west of the proposed licence.  Her father’s ‘country’ is the island of Yilyamirri, ‘those islands and the saltwater around the islands which is now called Faraway Bay’ but Yilyimirri is identified by the KLC as being an island to the west of the King George River (as is Faraway Bay) and in either case the location is at least 20 kilometres south east of the subject area.  The fact that Ms Cheinmora was born near Cape Londonderry probably means that this place is of particular significance to her.  This site is at least close to the tenement area and my possibly be on it.

3. There are two registered sites south of the western end of the subject area in the vicinity of Curran Point near the Drysdale River mouth, but as previously noted these sites are some 8-11 kilometres distant from the proposed licence area. There is nothing in Ms Cheinmora’s evidence to link these sites with any places mentioned in the affidavit, nor to suggest that Curran Trig is a site of particular significance to the Balanggarra people. Given the nature of the Gaingauru site and that access to it is closed I can safely infer that this is a site of particular significance to the native title party in accordance with their traditions but it is most unlikely that it would be interfered with by the proposed exploration.

4. I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangements that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance.  The Government party relies on the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal (Maitland Parker at [31]–[38], [40]–[41]).While the Tribunal has usually found that the site protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. (See for example Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [26]–[34]).

5. The grantee party has not provided an indication of its exploration programme and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50–51 [34]–[35]). However the grantee says (submission dated 24 October 2007) that ‘it is Swancove’s priority to ensure the conservation and protection of heritage sites’ and that the company is cognisant of the provisions of all relevant regulatory regimes, including the Aboriginal Heritage Act.  There is no evidence to suggest that the grantee will not act lawfully and in accordance with the Aboriginal Heritage Act.

6. The Tribunal, when engaging in the predictive assessment process, is limited by the nature of evidence with which it is provided.  I note that in the Kimberley case referred to in para [31] above (and some other matters) the detailed evidence adduced is more specific than the evidence submitted by the native title party in this case.  On the evidence in this matter there are no registered sites within the subject area but general reference to a number of places which may be of special significance and which may be in the subject area.  There are assertions of ‘Dreamings’ and ‘Dreamtime Snakes’ which again may be of particular significance, but whose location is unknown or beyond the boundary of the proposed licence.  There is no evidence of the nature of most of these sites, but even assuming they are all of particular significance to the native title party there is no reason to suspect that they will be interfered with by exploration confined to the subject area.

7. The grantee party is aware of the provisions of the Aboriginal Heritage Act and has attempted to negotiate a mutually acceptable agreement for the protection of heritage with the native title party similar to that entered into with another native title representative body.  I am satisfied that the grantee party is aware of its responsibilities to comply with the Aboriginal Heritage Act and other legislation. In order to ensure that it complies with the Aboriginal Heritage Act it will be necessary for the grantee party to consult with the native title party to ensure that it avoids sites of cultural significance. I am satisfied given the nature of the evidence regarding sites in the subject area that the presumption of regularity is applicable in this matter and that interference with sites of particular significance from the exploration activity is unlikely.

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

1. The Tribunal is required to make an evaluative judgement on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005) at [41]–[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).

2. The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place.  It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land or waters.  In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [75]-[79] and the cases cited therein).

3. In this matter there has been no evidence provided to suggest that there are any exceptional factors leading to a finding that major disturbance is likely.  The area has been the subject of some exploration activities about which there has been no specified complaint beyond that some mining companies have in the past not consulted with the native title party and that it is ‘against the Aborigine rules to just walk about anywhere.’  Ms Cheinmora’s affidavit implies that in so doing mining companies ‘might make trouble for people’ or ‘might make an argument for the families’ but no evidence of specific incidences or consequences are provided and in any event while this may constitute a major disturbance from the point of the view of the native title party, it is debateable whether it would do so in the eyes of the wider community.  Certainly it is desirable that parties consult with respect to environmental issues but there are standard conditions on the grant of the proposed licence which will limit the likelihood that the land and waters will be disturbed in a major way, in addition to a specific condition recognising that part of the proposed licence area overlaps foreshore, seabed and navigable waters, and a number of extra conditions and endorsements in recognition that the majority of the area is proposed for a national park and that rainforest exists within the licence area.

Determination

1. The determination of the Tribunal is that the grant of exploration licence E80/3591 to Swancove Enterprises Pty Ltd is an act attracting the expedited procedure.

Hon CJ Sumner
Deputy President
21 January 2008