Dora Sharpe & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd
[2010] NNTTA 149
•15 September 2010
NATIONAL NATIVE TITLE TRIBUNAL
Dora Sharpe & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, [2010] NNTTA 149 (15 September 2010)
Application No: WO10/312
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Dora Sharpe & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants (WC00/10) (native title party)
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The State of Western Australia (Government party)
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Cullen Exploration Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 15 September 2010
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 not attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 24, 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
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), Daniel O’Dea
Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined 2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, NNTT WO09/395 and WO09/396, [2010] NNTTA 70 (20 May 2010), Hon C J Sumner
Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, NNTT WO09/989 and WO09/990, [2010] NNTTA 137 (23 August 2010), Hon C J Sumner
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
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
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
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
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] FCA 1452; (1996) 69 FCR 208; (1996) 136 ALR 557
Solicitor for the
native title party: Ms Hema Hariharan, Kimberley Land Council
Representative of the
native title party: Ms Ania Maszkowski, Kimberley Land Council
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representatives of the Mr Greg Abbott, Department of Mines and Petroleum
Government party: Ms Claire Malavaux, Department of Mines and Petroleum
Representatives of the Ms Sieu Vuong, McMahon Mining Title Services P/L
grantee party: Mr Shannon McMahon, McMahon Mining Title Services P/L
REASONS FOR DETERMINATION
On 4 November 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 E04/1933 (the proposed licence) to Cullen Exploration Pty Ltd (the grantee party) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 617.57 square kilometres located 36 kilometres south-westerly of Fitzroy Crossing in the Shire of Derby-West Kimberley. It is overlapped at 62.66 per cent by the Gooniyandi Combined #2 native title claim (WC00/10 – registered from 23 April 2001). No other native title claims overlap the proposed licence.
On 4 March 2010 Dora Sharpe and Others on behalf of the Gooniyandi Combined #2 registered native title claimant (native title party) made an expedited procedure objection application to the Tribunal in respect of the proposed licence.
In accordance with standard practice the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period from the s 29 closing date for the lodgement of objections (4 March 2010), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the preliminary conference on 6 April 2010 the grantee party representative reported that the grantee party wished the matter to proceed to an inquiry.
The Government party lodged its contentions and evidence by 25 June 2010 and the grantee party provided a statement of contentions on 12 July 2010. Following two requests to extend the time required for compliance with directions, the native title party lodged a statement of contentions and an unsigned affidavit of Thomas Dick on 30 July 2010. The native title party representative, Ms Hema Hariharan of the Kimberly Land Council (KLC), initially advised that the unsigned affidavit would be signed in the week of 16 August 2010 and subsequently that the signature would not be provided until 30 August 2010 as the next meeting of the native title party had been rescheduled.
On 1 September 2010, the KLC advised that it had been unable to obtain the signature of Mr Dick. Because of the likelihood of delay in executing the affidavit, the Tribunal wrote to the parties and advised that it was considering whether to proceed on the basis of the unsigned affidavit. The Government and grantee parties responded that they would like the Tribunal to determine the objection as though the unsigned affidavit was an unsworn statement unless the signature was obtained prior to a determination being handed down.
On 3 September 2010, the native title party provided a memorandum produced by Kara Dunn, KLC anthropologist, detailing the steps taken to gather the affidavit evidence of Mr Dick as well as subsequent attempts to obtain his signature. Ms Dunn and a KLC native title officer spoke with Mr Dick at Fitzroy Crossing on 28 July 2010 for approximately two hours and obtained information which was subsequently included in the affidavit prepared by Ms Hariharan. Ms Dunn’s memorandum noted that she made ‘a few corrections’ to the unsigned affidavit originally filed on 30 July 2010, including an amendment to Mr Dick’s occupation and ‘grammatical rather than substantial changes’. The amended ‘affidavit’ was lodged on 3 September 2010.
I have decided that it is appropriate to admit and have regard to the unsigned affidavit based on previous principles outlined by the Tribunal (see summary of cases 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]). There has been no objection from the Government or grantee parties and the actual evidence is not contested by them.
Parties agreed that the inquiry be heard ‘on the papers’, that is without holding a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2)).
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’), I 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 as described 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, amongst 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 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]. (See also the Federal Court dismissal of a native title party appeal from this determination in Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 and Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340.)
Evidence in relation to the proposed act
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
Gogo Pastoral Lease 398/810 (64.4 per cent overlap);
Jubilee Downs Pastoral Lease 3114/930 (27.1 per cent overlap);
Quanbun Downs Pastoral Lease 3114/1269 (3.3 per cent overlap);
Crown Reserve 23226 – Stock Route (Fitzroy Crossing to Nobbys Well) (3.9 per cent overlap);
Vacant Crown Land (1.1 per cent overlap);
Stock Route Reserve 23226 – Fitzroy Crossing to Nobbys Well (3.9 per cent overlap); and
Road Reserve (less than 0.1 per cent overlap).
There is a National Heritage Listing (NHL/106063, The Kimberley) over 100 per cent of the proposed licence under the jurisdiction of the Department of Environment, Water, Heritage and the Arts. According to the Department’s website, the status of NHL/106063 is ‘Ministerial request for assessment’.
The proposed licence is overlapped by two File Notations Areas under the authority of the Department of Agriculture and Food (FNA/320 – quarantine area for Noogoora Burr) and Department for Planning and Infrastructure (FNA/6874 – licence for tourism) with an overlap of 40.3 per cent and 0.6 per cent respectively.
There are no Aboriginal communities identified inside the area of the proposed licence however there is a large number of Aboriginal communities situated within a ten to thirty kilometre radius of the proposed licence area.
Department of Indigenous Affairs (DIA) documentation provided by both the Government party and the native title party reveal twenty five sites registered under the Aboriginal Heritage Act 1972 (WA) overlapping the proposed licence as follows:
Site ID 12687 – Fitzroy River (mythological – permanent register, open access, no restrictions), partially within both the proposed licence and native title claim area;
Site ID 12688 – Forrest/Cunningham River (mythological – permanent register, open access, no restrictions), partially within the proposed licence but not overlapping the native title party claim area;
Site ID 12689 – Mandimalan (mythological, water source – permanent register, open access, no restrictions), partially within the proposed licence and wholly overlapping the native title claim area;
Site ID 12732 – Gurrmalaban (mythological – insufficient information, open access, no restrictions), partially within both the proposed licence and native title claim area;
Site ID 12733 – Minbangu Creek (mythological – permanent register, open access, no restrictions), partially within the proposed licence but not overlapping the native title claim area;
Site ID 12735– Walag Maladji (ceremonial – insufficient information, open access, no restrictions), partially within the proposed licence but not overlapping the native title claim area;
Site ID 13406 – Umbabi (ceremonial – permanent register, open access, no restrictions), partially within the proposed licence but not overlapping the native title claim area;
Site ID 13412 – Giwin Maladji (ceremonial – permanent register, open access, no restrictions), partially within the proposed licence but not overlapping the native title claim area;
Site ID 13413 – Maladji (mythological – permanent register, closed access, no restrictions), slightly within the proposed licence but not overlapping the native title claim area;
Site ID 13416 – Manugudji Maladji (ceremonial – permanent register, open access, no restrictions), wholly within the proposed licence but not overlapping the native title claim area;
Site ID 13417 – Bundju (ceremonnial – permanent register, open access, no restrictions), slightly within the proposed licence but not overlapping the native title claim area;
Site ID 13418 – Long Hole Billabong (mythological, – permanent register, open access, no restrictions), wholly within the proposed licence but not overlapping the native title claim area;
Site ID 13419 – Gandjingana-Djadi (mythological – permanent register, open access, no restrictions), wholly within the proposed licence and partially overlapping the native title claim area;
Site ID 13420 – Gambin & Galaga (ceremonial – permanent register, open access, no restrictions), wholly within the proposed licence and partially overlapping the native title claim area;
Site ID 13435 – Sugarbag Hole Billabong (mythological, water source – permanent register, open access, no restrictions), wholly within both the proposed licence and native title claim area;
Site ID 13437 – Douglas Yard (mythological – insufficient information, open access, no restrictions), wholly within both the proposed licence and native title claim area;
Site ID 13438 – Worrbirrba (mythological, quarry – permanent register, open access, no restrictions), slightly within the proposed licence and partially overlapping the native title claim area;
Site ID 13440 – Long Hole Billabong (ceremonial, mythological – permanent register, open access, no restrictions), partially within the proposed licence and wholly overlapping the native title claim area;
Site ID 13445 – Maladji Gunyar (Manyunggun) (ceremonial, mythological – permanent register, open access, no restrictions), partially within the proposed licence but not overlapping the native title claim area;
Site ID 13470 – Wonggarrmarrin 1 (mythological – permanent register, closed access, no restrictions), slightly within the proposed licence but not overlapping the native title claim area;
Site ID 13482 – Landjiban (ceremonial – permanent register, open access, no restrictions), partially within the proposed licence and wholly overlapping the native title claim area;
Site ID 13483 – One Tree Billabong (mythological – permanent register, open access, no restrictions), wholly within both the proposed licence and native title claim area;
Site ID 13982 – Duck Hole (mythological – permanent register, closed access, no restrictions), wholly within both the proposed licence and native title claim area;
Site ID 13984 – Jillyardie Waterhole (mythological – permanent register, closed access, no restrictions), partly within the proposed licence and wholly overlapping the native title claim area; and
Site ID 13991 – Nipper Creek (mythological – permanent register, closed access, no restrictions), partially within both the proposed licence and native title claim area.
Government party documents indicate that the entire area of the proposed licence was released for geothermal acreage in 2009 and is covered by one proposed geothermal exploration application (G09-157) yet to be granted. There is no current mineral exploration or mining activity in the area of the proposed licence however numerous mineral claims were active variously between 1978 and 1984 as well as two temporary reserves between the years 1965 to 1966 and 1981 to 1983 respectively.
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 imposed require that the pastoral lessee is notified of the grant of the licences and of certain exploration activities (conditions 5-6).
The grant of the proposed licence will also be subject to a condition restricting mining activities and interference with the use of an Aerial Landing Ground as well as a condition requiring consent to explore on Stock Route Reserve 23226 and no exploration activities to be carried out which restrict use of the Reserve (conditions 7-8).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed.
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder;
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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 land the subject of the proposed licence affects an area under quarantine for Noogoora Burr (under the provisions of the Agriculture and Related Resources Protection Act 1976). Access to the quarantine area is subject to the licensee obtaining an entry permit from the Kununurra Regional Office of the Agriculture Protection Board of Western Australia; and
The licensee’s attention is drawn to the existence of a licence for tourism granted pursuant to section 91 of the Land Administration Act 1997.
Mr Shannon McMahon of McMahon Mining Title Services Pty Ltd for the grantee party provided a Statement of Contentions on 12 July 2010. The proposed licence area is prospective for the discovery of coal. The grantee party sets out its intentions to comply with all relevant legislative requirements, including the Aboriginal heritage and mining regimes.
Evidence provided by the native title party
The submissions of the native title party include the unsworn affidavit of Thomas Dick (TD affidavit) made in the following terms:
‘AFFIDAVIT OF THOMAS DICK
I, Thomas Dick, Ranger Corodinator (sic) Gooniyandi Rangers and Acting Manager of Bayulu, via Fitzroy Crossing in the State of Western Australia, affirm:
1.My name is Thomas Dick. My Aboriginal name is Boodooburry. My name is Thomas Dick. My Aboriginal name is Boodooburry. I was born in 1947 on Gogo Station which is where the proposed exploration license area is.
2. I am a member of the Gooniyandi Native Title Determination Application (WC00/10). I am Gooniyandi though my mother’s side. My Jaja (my mother’s mother) and Jabi (my mother’s father).
3. I know the area where Cullen Exploration Pty Ltd, “the grantee party”, have applied for Exploration Licence Number E04/1933, the “Exploration Licence Area”, very well, I have been shown maps of the application area, I grew up in and around the Exploration Licence Area and my family and I still visit that area. The maps I was shown is attached to this affidavit and marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4. The Exploration Licence Area falls on country I look after. It falls on Gooniyandi Country. I was born at Gogo Station and grew up there. I moved to Bayulu, when Bayulu was set up. I still visit the area inside and around the Exploration License Area. I take the young rangers to places inside and around the Exploration License Area to look after them and clean them up. I am showing our young rangers these places.
5. I visit the area for camping, fishing and cultural reasons. The Old Charcoal Yard which is in and around the Exploration License Area is a Gooniyandi place, a living place. We go there to catch Barramundi there. There is also Emu there by the billabong and the river.
6. We catch fish inside the Exploration Licence Area by the river. We catch Black brim, Barramundi, Charrabun. I used hand lines when we go fishing.
7. There are many special sites in the Exploration License Area.
8. There are sacred and important sites throughout Gooniyandi country. These places are important to my people. These places are a part of our traditions and our law and culture.
9. We are responsible for the safety of sacred sites in that area.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
10. I know Gooniyandi country and the Exploration licence Area very well. There are many places in my country, including inside the Exploration licence area, which are very important and have great significance.
11. Inside the Exploration Licence Area You have Angatheta bore Ganjinganangarri take their kids fishing there. It is a living site. You camp there and fish and hunt in these places. You walk through there to Nyikina country for ceremony on the Walmajarri side. You have the Galeru (rainbow snake) at Ganjiganangarri.
12. Ngooyoombool is inside the Exploration License Area (Sugarbag Hole Billabong). There is a long walk there. These are Gooniyandi places. There is a bridge on the old highway that crosses the billabong. There is a big Galeru there. And you have to introduce yourself.
13. Timirliban is a site in and around the Exploration License Area, it is near Christmas Creek Junction there is a ceremony place there.
14. There are many Maladji places throughout and around the Exploration License Area. Maladji means if you want more you go there. If you have too many mosquitoes then there is an increase site for frogs and that is Walag Maladji, the frogs will eat the mosquitoes. The increase site for mosquitoes is Gwin Maladji. There is an increase site for koonkooberry tree too.
15. Mining companies should ask permission and show us respect as the Traditional Owners of that Country. How would they feel if we did that same thing to their place without asking? They don’t know this country, they don’t know these communities, and they don’t know what they could be disturbing, interrupting and ruining. There might be law happening, there might be funerals. Strangers are not meant to come near communities and our special places during these times.
16. We are looking after all the important places in our country. We are passing on these stories to our young people.
MAJOR DISTURBANCE TO LAND OR WATER
17. I am aware of the activities which the grantee party could do on the Exploration licence area under the Mining Act if they are granted the Exploration licence.
18. Strangers must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. We know that strangers don’t follow our Law, that’s why they have to slow down and come and meet with us. The same is for blackfellas from another area. They need to come and see us first and get permission to come onto country.
19. There are spiritual beings that look after those special areas inside and around the Exploration License Area. Strangers would get sick if they come onto our land and do not ask the traditional owner’s permission. They need to be welcomed there.
20. Duck Hole is the Galeru main spot living water. When the floods come through there, then there is no swimming. If you swimming you could go into a trance or something. You look and someone already gone (drowned). Ranger groups are working are working at putting up signs there to stop people from swimming here.
21. Long Hole Billabong near chestnut there is a galeru at that place in and around the Exploration License Area. It was the main camp for stockmen. Everyone including miners have to come and ask the Traditional Owners if they can go there. People can get sick if they go to waterholes without permission. People can disappear if they are not introduced to the galeru by the Traditional Owners.
22. If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law.
23. If blackfellas damage any important places or things in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again.
24. If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our Dreamings.
25. Strangers cannot help themselves to our country. They have got to ask us first. If they make money out of my country, they should give my community a little bit like help making a road because they are taking something from our country.’
The evidence of Thomas Dick is uncontested and I accept it. Mr Dick says he is a member of the Gooniyandi native title determination application. Although Mr Dick is not one of the persons comprising the applicant and registered Gooniyandi native title claimant, I accept he is a member of the claim group and also has the necessary authority to speak for the country, relevant to these proceedings, on behalf of Gooniyandi.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title parties (in the sense of there being a real risk of interferences) (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 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])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas, s 24 in relation to reserve land and the additional conditions/endorsements outlined above, 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. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]) and in the present case the reserve land is a very small area and of little importance.
The evidence of Mr Dick establishes that he visits the area of the proposed licence for camping, fishing, cultural reasons and to teach the young rangers to clean up and look after places. Mr Dick talks of fishing by the river inside the proposed licence for black brim, barramundi and cherrabun. Mr Dick deposes to still visit the area inside and around the proposed licence area and I am satisfied that there is evidence of camping, fishing and other traditional activities which are currently carried out. Tribunal mapping establishes a number of Aboriginal communities in the near vicinity. Mr Dick says he was born on Gogo Station and now belongs to the community of Bayulu which Tribunal mapping identifies to be some ten kilometres from the proposed licence. Mr Dick does not expressly indicate how frequently the area is visited or how many people are involved. Nevertheless, the close location of nearby Aboriginal communities, the DIA and mapping evidence identifying a number of water sources, billabongs and Fitzroy Creek, combined with the Mr Dick’s evidence, satisfies me that there are contemporary traditional community or social activities carried out on a more than infrequent basis over the relevant area. This finding is reinforced by the fact that a similar finding was made in Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined 2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, NNTT WO09/395 and WO09/396, [2010] NNTTA 70 (20 May 2010), Hon C J Sumner (Butcher Wise No. 1) and Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, NNTT WO09/989 and WO09/990, [2010] NNTTA 137 (23 August 2010), Hon C J Sumner (Butcher Wise No. 2). Both these matters involved the Gooniyandi claimants and the proposed licence areas were in the close vicinity of the present area and near Fitzroy Crossing. The evidence given in those matters is relevant to the present case and I adopt the relevant findings from them in relation to interference with community or social activities.
I must now assess whether the grant of the proposed licence is likely to interfere with the carrying on of the native title party’s community or social activities. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s community or social activities may be taken into account in assessing whether the grant of an exploration licence is likely to further affect such activities (Smith at [26]-[28]; Walley at [12]).
The evidence establishes that very little exploration and mining activity has occurred in the area of the proposed licence over the years with the exception of large number of mineral claims active variously from 1978 to 1984. There is no specific evidence to support a finding that there has been or currently is any appreciable effect on the native title party’s community or social activities from exploration and mining activity. Almost the entire area of the proposed licence is covered by pastoral leases which could have had such effect but the native title party’s evidence does not suggest significant restrictions which may have been caused by the pastoral activities.
Government party documentation reveals that the extent to which the native title party overlaps the proposed licence in these proceedings is 387 square kilometres but the area of the Gooniyandi Combined #2 claim is approximately 11,209 square kilometres, much larger than the area of the proposed licence thus making it less likely that exploration on the subject area will impact on community and social activities, which I can infer are likely to be carried out over a broader area. While accepting this to be the case, the facts of this case demonstrate that the native title party’s community or social activities will be directly interfered with even though they are also carried out in areas which extend beyond the proposed licence area.
The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place. Usually, 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. However, each case must be evaluated on its merits, taking account of the particular facts. In my view, despite the factors just referred to, the nature and intensity of the community and social activities are such that there is likely to be direct interference with them by the grant of the proposed licence and exploration activities undertaken. Importantly in this case, as in the other Gooniyandi matters referred to, there are a large number of Aboriginal communities in the vicinity of the proposed licence area (including at Fitzroy Crossing) in which members of the native title party live.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208; (1996) 136 ALR 557 that the very thought of intensive exploration activities could interfere with ‘community life’ I adopt my findings 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), Hon C J Sumner at [22]. Since the 1998 amendments to the Act the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable. Further, based on the Federal court decision in Smith I accept the Government party’s submissions that the direct interference must be substantial and more than trivial in its impact. The native title parties’ contentions (para 14) that insubstantial impacts are encompassed by direct interference is rejected.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act 1972 (AHA) shows twenty five registered sites within the proposed licence, five of which are closed access and the remaining twenty with open access. While eleven of those sites, including two of which are of closed access, do not overlap the registered claim of the native title party, they are close to the claim area and are corroborative of the fact that the general area of the proposed licence is rich in sites. There may be other sites or areas of particular significance to the native title party 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 AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 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 particularly significance. It also says that a condition will be imposed on the grant giving the native title party the option to require the grantee party to be bound by the Regional Standard Heritage Agreement and conduct a site survey in accordance with it. 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 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 (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.
The evidence of the native title party establishes the following facts which support a finding that the sites identified below lie within or in the vicinity of the proposed licence area.
Angatheta Bore (Ganjinganangarri), described as ‘a living site’ where members of the native title party camp, fish and hunt and walk through to Nyikina country for ceremony. There is a rainbow snake (Galeru) at Ganjiganangarri (TD affidavit para 11). Tribunal mapping locates Angatheta Bore along Fitzroy River within both the proposed licence and Gooniyandi native title claim area.
Sugarbag Hole Billabong (Ngooyoombool), where there is ‘a long walk’, a bridge on the old highway that crosses the billabong and a big Galeru (rainbow snake) which ‘you have to introduce yourself’ (TD affidavit para 12). Tribunal mapping establishes Sugar Hole Billabong to be located wholly within the proposed lease and that of the native title claim area. Sugarbag Hole Billabong is further identified as a registered site (site ID13435) under the AHA and is classed as a water source of mythological significance.
Timirliban, near Christmas Creek Junction, where there is a ceremonial site (TD affidavit para 13). Christmas Creek runs through part of the proposed licence, however the mapping evidence does not establish the location of Christmas Creek Junction.
Many Maladji places throughout and around the area of the proposed licence. Mr Dick describes Maladji as meaning ‘if you want more you go there. If you have too many mosquitoes then there is an increase site for frogs and that is Walag Maladji, the frogs will eat the mosquitoes. The increase site for mosquitoes is Gwin Maladji. There is an increase site for koonkooberry tree too’ (TD affidavit para 14). Supporting DIA evidence identifies five Maladji sites located within the area of the proposed licence, including the two sites, Giwin Maladji (site ID 13412) and Walag Maladji (site ID 12735), referred to in the evidence of Mr Dick (despite the slight difference in the spelling of ‘Giwin’ between that contained on the Register and that of Mr Dick’s affidavit, I take these to be referring to the same site). One of the registered sites, Maladji (site ID 13413) is of closed access. The classification of these five sites as ceremonial, mythological and/or both supports the evidence of Mr Dick. Despite the fact that these five registered sites do not fall within the native title party’s claim area I accept that, on the basis of Mr Dick’s evidence, they are sites of particular significance to the native title party. Their existence further reinforces the evidence that the general area of the proposed licence is rich in sites.
Duck Hole described as ‘the Galeru main spot living water. When the floods come through there, then there is no swimming. If you swimming you could go into a trance or something. You look and someone already gone (drowned)’ TD affidavit para 20). Mr Dick says that ranger groups are working to put up signs to stop people from swimming at Duck Hole. Mapping evidence establishes Duck Hole as overlapping the northern boundary of the proposed licence and lies wholly within the claimed land of the native title party. The DIA Register identifies Duck Hole (site ID 13982) as a mythological site with closed access.
Long Hole Billabong where there is another Galeru (rainbow snake). Mr Dick says it was the main camp for stockmen (TD affidavit para 21). Long Hole Billabong is a registered site under the AHA (site ID 13440) of mythological and ceremonial classification with open access. Tribunal mapping identifies Long Hole Billabong to be situated on the south-eastern corner of the proposed licence wholly within the native title claim area.
The evidence provided by the native title party in relation to sites is uncontested and I accept that it establishes the existence of a number of sites in the general area of the proposed exploration licence, most of which are, given their nature, of particular significance to the native title party in accordance with their traditions.
I am satisfied that Angatheta Bore, Duck Hole, Long Hole Billabong, Sugarbag Hole Billabong, the Maladji places and Timirliban are all areas or sites of particular significance to the native title party in accordance with their traditions.
I can also safely infer that many of the sites on the Register fall into this category given their characteristics including three closed sites which overlap the registered claim of the native title party. Of the fourteen registered sites which overlap the native title party, all are mythological, ceremonial or both, which by their nature, permit an inference that they are sites of particular significance to the native title party. The mapping evidence also establishes that there are a considerable number of registered sites surrounding the proposed licence.
The affidavit of Thomas Dick evidences concern about mining companies entering Gooniyandi claimed land without permission and consultation with traditional owners. Mr Dick says that strangers must ask permission when they come onto country because there are a lot of special places in and around the area of the proposed licence (para 18) and that if they enter without permission and guidance, they might interfere with important sites. Mr Dick notes that strangers could get sick if they come onto Gooniyandi land and visit waterholes without permission. Mr Dick says strangers must be introduced to the galeru by the traditional owners (para 21). This evidence is corroboration of the fact that the areas and sites identified in the evidence are of particular significance to the native title party in accordance with their traditions.
Taking into consideration the whole of the evidence, I am satisfied that the area of the proposed licence which overlaps the native title party and the surrounds is rich in sites of particular significance to the native title party in accordance with its traditions.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein).
The grantee party indicates in its Statement of Contentions that it will carry out its work program in compliance with all legislative requirements including the AHA and Mining Act and will comply with all tenement conditions imposed by the Government party (paras 5, 8-9) and further contends that it has never been prosecuted under or accused of breaching the AHA (para 11).
The grantee party also submits the following.
It is prepared to enter into a heritage protection agreement with the native title party based on the Regional Standard Heritage Agreement (RSHA) that operates in the Pilbara, given the major reason for unsuccessful negotiations over the Alternative Heritage Agreement were issues relating to the grantee party’s legal rights and costs. The grantee party says the issue of costs was not in relation to the cost of conducting heritage surveys but the cost of community benefits contained within the Heritage Agreement (paras 2, 16, 18-19).
The attitude of the grantee party to the protection of Aboriginal heritage and steps it is prepared to take to minimise the likelihood of interference with sites and belief that the current regulatory regime will provide adequate protection (paras 8 and 10) should be taken into account by the Tribunal.
Planned exploration for the proposed licence includes reconnaissance sampling and geological mapping, interpretation of available seismic data and drilling of target areas for coal (if warranted by previous results) (para 13).
There will be limited and minor ground disturbing activities, if at all, noting that the ‘majority’ of work ‘will be non-ground disturbing’ and that the ‘work that is ground disturbing will be broad spaced traverses and would only be considered minor disturbance’ (para 15).
That as the exploration is for coal, it will be ‘less intensive in the initial stages in terms of drilling than exploration for base metals’ (para 12).
Despite the grantee party’s evidence that exploration activities will be of this nature, in the absence of more definite evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning may be required, particularly as the grantee party concedes that the ‘less intensive’ activity is at the initial stages of coal exploration. While the rights given under an exploration licence may not be exercised to their fullest extent, the evidence establishes that there will be ground disturbing activity with the potential to interfere with significant Aboriginal sites which may progressively increase depending on the results of initial exploration activity.
With respect to the grantee party’s contention relating to the reasons for the breakdown in negotiations and the fact that the grantee party is a junior exploration company I adopt my findings in WO09/989 and WO09/990 at [51] that these matters are of limited relevance.
There is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA and the evidence reveals an awareness of the grantee party’s obligations in this respect. The fact that the grantee party was prepared to enter into a heritage agreement is a relevant factor which indicates the grantee party’s awareness of the need to avoid interference with sites of particular significance.
The grantee party further contends that the chances of mineral discovery is minimal, taking into account the small number of granted and pending mining leases in comparison to the high proportion of granted and pending exploration licences in Western Australia (para 20). In my view this is not a factor relevant to this inquiry. The Tribunal must consider only the effect of the proposed future act (i.e. the grant of the exploration licence and the exploration activity which is likely to be carried out pursuant to it) on the three limbs of s 237, and not enter into speculation over the potential to discover a resource and progress to mining.
Taking all these factors into account, and particularly the nature and extent of the sites of particular significance which have been identified and that the area of the proposed licence is site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38). While the grantee party indicates awareness of registered sites in the proposed licence area, and is now on notice that other sites may exist, the exact location and extent of some of those sites is not known in all cases and unless there is close liaison between the native title party and grantee party through negotiation and agreement, I find there is a real risk of interference with them. Some of the sites on the Register are identified by reference to a buffer zone of 10 square kilometres making it important for consultation and negotiations to occur in relation to the precise dimensions of these sites. While such negotiations may not be necessary where there are only relatively few sites, the proposed licence area contains a considerable number of registered sites and others where the precise location will need to be the subject of negotiations if interference with them is to be avoided. This is a case where the site rich nature of the proposed licence area means there is a real risk of interference, despite the intentions of the grantee party to comply with the site protection regime based on the AHA (i.e. it is a case where the regulatory regime is not adequate to prevent the likelihood of interference with sites of particular significance to the native title party in accordance with their traditions).
The Tribunal has long accepted that unless there is evidence to the contrary, the Tribunal will act on the basis of a presumption of regularity which presumes that the grantee party will act lawfully and I have done so in this case. The Tribunal further accepts that the Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [75]-[77]) found on the facts of that case that the protective effect of the AHA was such as to make interference with sites of particular significance remote but does not accept that this is an inevitable finding in all objection inquiries. There are circumstances where the regulatory regime, including a grantee party acting lawfully and being bound by a RSHA and the obligation to conduct a heritage (site) survey will not be sufficient to render interference with a relevant site unlikely (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [29]-[35]). This is such a case.
My findings in relation to s 237(b) of the Act are consistent with those made in other objection inquiries in the general area involving the native title party, including recent matters Butcher Wise No. 1 and Butcher Wise No. 2.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1933 to Cullen Exploration Pty Ltd, is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
15 September 2010
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