Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan
[2010] NNTTA 15
•8 February 2010
NATIONAL NATIVE TITLE TRIBUNAL
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan, [2010] NNTTA 15 (8 February 2010)
Application Nos: WO09/318, WO09/319, WO09/320, WO09/321
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection applications
Doris Ryder and Others on behalf of Lamboo People (WC99/20) (native title party)
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The State of Western Australia (Government party)
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Phyllis Marie Brosnan and Alan Neville Brosnan (grantee party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 8 February 2010
Catchwords: Native title – future acts – proposed grant of prospecting licences – expedited procedure objection applications – 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 is not attracted.
Legislation: Native Title Act 1993 (Cth), ss 29, 109, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), 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
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Eva J Connors on behalf of Eastern Guruma People/Western Australia/De Beers Australia Exploration Limited, NNTT WO03/934, [2004] NNTTA 94 (19 October 2004), The Hon EM Franklyn, QC
Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362
Judy Hughes on behalf of Thalanyji/Western Australia/Energy Metals Pty Ltd, NNTT WO04/359, [2005] NNTTA 93 (13 December 2005), Hon C J Sumner
Leonne Velickovic on behalf of the Widji People/Western Australia/Scotia Nickel Ltd, NNTT WO03/566, [2005] NNTTA 14 (19 March 2005), Hon C J Sumner
Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, NNTT WO04/10 and WO04/44, [2005] NNTTA 12 (19 March 2005), Hon C J Sumner
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
Mr Johnson Taylor and Others on behalf of Njamal/Western Australia/Montezuma Mining Co. Ltd, NNTT WO07/1374, [2008] NNTTA 81 (30 June 2008), Neville MacPherson
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
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Stan Brumby, Doris Ryder and Jack Ryder/Western Australia/Ryan Stewart Brierty, Alan Robert Brierty Jonellen P/L, Neil Martin Bradley & Clayton Bruce Ryden, NNTT WO97/259, [1998] NNTTA 26 (23 January 1998), Kim Wilson
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Representative of the
native title party: Ms Ania Maszkowski, Kimberley Land Council
Counsel for the
native title party: Ms Hema Hariharan, Kimberley Land Council
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Grantee party: Ms Phyllis Marie Brosnan and Mr Allan Neville Brosnan
REASONS FOR DETERMINATION
On 14 January 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P80/1694, P80/1695, P80/1696 and P80/1697 (‘the proposed licences’) to Allan Neville Brosnan and Phyllis Marie Brosnan (‘the grantee party’) and included in the notice a statement that it considered the grants attracted the expedited procedure (that is, are ones which can be done without the normal negotiations required by s 31 of the Act).
On 14 May 2009 expedited procedure objection applications were lodged with the Tribunal by Doris Ryder, Jack Ryder, Stan Brumby and Others on behalf of the Lamboo Native Title Claimants – WC99/20, registered from 17 September 1999 (‘the native title party’) in respect of the proposed licences.
The details of the proposed licences and related objections are as follows:
P80/1694 being an area of 157.4 hectares located 74 kilometres south westerly of Halls Creek in the Shire of Halls Creek (Objection No. WO09/318);
P80/1695 being an area of 199.8 hectares located 75 kilometres south westerly of Halls Creek in the Shire of Halls Creek (Objection No. WO09/319);
P80/1696 being an area of 199.8 hectares located 76 kilometres south westerly of Halls Creek in the Shire of Halls Creek (Objection No. WO09/320); and
P80/1697 being an area of 199.43 hectares located 77 kilometres south westerly of Halls Creek in the Shire of Halls Creek (Objection No. WO09/321).
In accordance with standard practice in expedited procedure matters, on 1 June 2009 the Tribunal gave directions to the 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, 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 the resolution of the objection by consent.
On 10 August 2009 at the request of the native title party and with the agreement of all parties, directions were amended to enable the work programme of the grantee party to be provided to the native title party and for subsequent instructions to be sought on whether a resolution by agreement was possible. On 14 October 2009, the grantee party requested that the matters be determined by the Tribunal on the basis that it was not willing to negotiate in relation to the proposed licences. Following this request directions were amended on a further four occasions at the request of the native title party to enable the provision of contentions and evidence.
The Government party lodged its contentions and evidence by 16 September 2009 in accordance with amended directions, and native title party contentions were received accompanied by evidence in the form of an unsigned and un-affirmed ‘affidavit’ on 7 December 2009. The grantee party advised that it would rely on the Government party’s contentions but also requested that the brief work programme previously provided to the native title party be taken into account. Subsequent to Tribunal enquiries when considering the evidence, the grantee party also provided a short affidavit outlining its approach to heritage protection. At the listing hearing on 17 December 2009, parties confirmed that all contentions and evidence had been lodged and agreed that the matter could be heard ‘on the papers’, that is, without a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2) NTA). A Tribunal map based on the evidence provided by the parties has also been provided to parties for comment, and I rely on the information contained within it for the purposes of this 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’), 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 prospecting licences in Walley (at [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 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 (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).
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licences:
Crown Reserve 18124 for the purpose of a common (overlap: 100 per cent of P80/1694, 86.6 per cent of P80/1695, 64.7 per cent of P80/1696, and 70.6 per cent of P80/1697)
Vacant Crown Land (overlap: 13.4 per cent of P80/1695, 35.3 per cent of P80/1696 and 29.4 per cent of P80/1697)
The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Maitland Parker at [21] Conditions 1–4).
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 AHA and any Regulations thereunder, and the Environmental Protection Act1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained.
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licences. The closest community, of Birndirri, is located approximately 26 kilometres north of the prospecting licences. There are other communities some distance further away.
Native title party evidence
The native title party’s Statement of Contentions was accompanied by a document entitled ‘Affidavit of Stan Brumby’ which was in the normal affidavit form prepared on the basis that it would be affirmed by Mr Brumby. Mr Brumby is one of the persons named as part of the applicant for native title and native title party but the ‘affidavit’ has not been executed by him. On 17 December 2009 the grantee party and the Government party agreed that the ‘affidavit’ could be admitted into evidence.
The Tribunal has previously given consideration to whether documents of a similar kind are admissible evidence. The principles were fully canvassed by Member (now Deputy President) Sosso in Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362 at [13]-[18]. In that matter the native title party filed a ‘Statement of Judy Hughes’, one of the objectors, which was marked with a cross with the words ‘Her Mark’ and name written on it. It resembled a statement of evidence even though described as a Statement of Contentions. In brief the principles relied on by Member Sosso were as follows.
Section 109 of the Act is relevant to this issue in that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way (s 109(1)) and that in carrying out its functions is not bound by technicalities, legal forms or rules of evidence (s 109(3)).
Although given a wide degree of latitude in carrying out its statutory functions by not being bound by the rules of evidence, this does not mean that the Tribunal will invariably disregard them.
Whether complying with the rules of evidence or not the information before the Tribunal must be logically probative and relevant to the issues before it.
While exempted from adherence to the rules of evidence the Tribunal is bound by the rules of natural justice (or procedural fairness) and must give all parties an opportunity to be heard.
Contentions by representatives of a party do not constitute primary evidence. In expedited procedure inquiries (as in native title proceedings generally) the best evidence provided on behalf of native title party interests generally comes from the native title holders themselves.
The Act provides that the right to negotiate inquiries may be determined on the papers if appropriate (s 151(2)) and virtually all expedited procedure objection inquiries are now conducted in this way, making the documentary evidence provided critical to a determination.
Member Sosso found that a commonsense and fair approach in the absence of any objection from the other parties or conflict about the facts was to accept the Statement of Judy Hughes as evidence which could be considered by the Tribunal.
In Judy Hughes on behalf of Thalanyji/Western Australia/Energy Metals Pty Ltd, NNTT WO04/359, [2005] NNTTA 93 (13 December 2005), Hon C J Sumner the Tribunal, based on these principles, also accepted a document entitled ‘Affidavit of Judy Hughes’ which had not been sworn or affirmed. The native title party provided an explanation for this situation in that Ms Hughes was infirm, had no transport and was unable to travel to the nearest Justice of the Peace.
In Eva J Connors on behalf of Eastern Guruma People/Western Australia/De Beers Australia Exploration Limited, NNTT WO03/934, [2004] NNTTA 94 (19 October 2004), The Hon EM Franklyn QC the Tribunal said that the native title party had not complied with the Tribunal’s directions. While this could have formed the basis for dismissal of the objection (s 148(b)) no application of this kind appears to have been made by the other parties and the Tribunal proceeded to determine that matter on the material before it. The evidence from the native title party included a document entitled affidavit which did not purport to be either sworn or affirmed by the maker who was one of the registered native title claimants but was signed by him and witnessed by a Justice of the Peace. Although the Statement was prepared and executed for the purposes of another objection application the Tribunal found that it could still be admissible if relevant to the application under consideration. The Tribunal confirmed that an assertion in statements of contentions does not of itself establish the validity of the assertions.
The Tribunal has accepted a statement of contentions signed by the objector as admissible evidence (Linda Champion on behalf of the Central West Goldfields People/Leonne Velickovic on behalf of the Widji People/Western Australia/Bullion Minerals Ltd, NNTT WO04/10 and WO04/44, [2005] NNTTA 12 (19 March 2005), Hon C J Sumner) and accepted (contrary to usual practice) contentions signed by the native title party’s representative (Leonne Velickovic on behalf of the Widji People/Western Australia/Scotia Nickel Ltd, NNTT WO03/566, [2005] NNTTA 14 (19 March 2005), Hon C J Sumner). Although in the latter matter the native title party was not compliant with the Tribunal’s directions no application to dismiss the objection on this basis was made (s 148(b)) and the Tribunal considered it appropriate to deal with the substance of matters despite the lack of direct evidence from the native title party claim group.
It is worth noting that in all of the above matters the Tribunal determined that the expedited procedure was attracted. In some cases the evidence was seriously deficient even though technically admissible.
In Mr Johnson Taylor and Others on behalf of Njamal/Western Australia/Montezuma Mining Co. Ltd, NNTT WO07/1374, [2008] NNTTA 81 (30 June 2008), Neville MacPherson, the Tribunal accepted a document (not an affidavit) in a question and answer form which had been signed by the objector and witnessed. The legal representative for the native title party explained that she had prepared the document by asking the questions and recording the answers, which were subsequently re-read to the objector, who confirmed and signed the document in front of a witness who was not the legal representative. No party objected to the document’s admissibility.
In other matters the Tribunal has also accepted the signed contentions of grantee parties as evidence. In considering whether documentary evidence of this kind is admissible and the weight to be given to it the Tribunal will have regard, among other things, to how significant the evidence is in the context of the particular matter and whether or not it is contested by the other parties. In a case where the evidence is critical to a decision and in dispute it is important for parties to provide the best evidence available which in the case of matters conducted on the papers will usually be an affidavit or statutory declaration. It is self evident that evidence relating to the matters in s 237 are essential to the making of a determination and that the best evidence in relation 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 the present case, I am entitled in the circumstances in which the ‘affidavit’ was filed to infer that it had been prepared by staff of the Kimberley Land Council (‘KLC’) based on statements obtained directly from Mr Brumby and that it is therefore reasonable to assume that Mr Brumby would have executed the affidavit in this form. The affidavit is in the usual form prepared for courts and tribunals and includes the statement that it was filed by a solicitor at the KLC.
The KLC have advised that the affidavit could not be signed before February because of staff availability, Law business and the wet season. In these circumstances and given the consent of the other parties, I consider it appropriate to admit the affidavit into evidence. In future matters it would be helpful if, in this type of situation, the native title party representative could provide a brief statement of how instructions for the affidavit were obtained and that the draft affidavit was prepared based on those instructions.
The unsworn affidavit is made in the following terms:
‘Affidavit of Stan Brumby
I Stan Brumby, of Mardiwah Loop, via Halls Creek in the State of Western Australia, affirm:
1.My name is Stan Brumby. My Aboriginal name is Majaju. I have Jangari skin, or subsection identity. I was born in approximately the 1930’s on Lamboo station at a place called Jirdjidgi (in the vicinity of the proposed prospecting licences.
2.I am one of the senior people for the Lamboo Native Title Determination Application (WAD 6095/98).
3.I know the area where Alan Neville Brosnan and Phyllis Marie Brosnan, “the grantee party”, have applied for Prospecting Licence Numbers P80/1694, P80/1695, P80/1696, P80/1697, “the prospecting licence area”, very well, because I have been show a map of the application area. The maps I was shown is attached to this affidavit marked “A”.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
4.The prospecting licence area falls on country I have to look after on Lamboo station, specifically the sacred sites of Ngunjuwiri, Rawungga, Budal, Karing, Jirdjidgi, Jawa, Wilinyjibari and Jiwrilin.
5.The area around Mount Dockerell, including the prospecting license area is known as Karing and Ngunjuwiri. There are a number of sacred sites in this area that are known to me from visiting and learning the songs that I must perform for ceremonies. There are several ceremony grounds there. These are important places.
6.There is good hunting and fishing in many parts of the prospecting licence area. We hunt Goanna, Kangaroo and sometimes Emu inside the prospecting licence area. We use boomerangs and rifles to do our hunting there and we go as often as we can, sometimes we stay there for a whole week.
7.We also go fishing in the prospecting area, after rains and water holes fill up, we get bream and catfish.
8.I am responsible for the safety of all sacred sites in that area.
9.When I visit my country I also get all kinds of bush vegetables and bush medicines. For example I get Kulibi (bush banana) and Junda (bush onion) and Mura (bush potato) and I also get gum from mardiwah trees, which I like to chew to make my stomach good.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
10.I know the prospecting licence area very well. There are many places in my country, including inside the prospecting licence area, which are very important and have great significance in the traditional religion of my community. We follow Waljiri for our ceremony and law, which you whitefella’s call the dreamtime.
11.The old people used to do ceremony up there. They used to tell us stories. Today, I still do those ceremonies and have to train all the young people in that.
12.You will find that there are all kinds of artefact scatters that our old people left around that country, you might not be able to see them and we don’t want anyone to touch them.
13.There is also all kinds of rock art around there and we don’t want people to see any of that, without us telling them which ones are alright and which ones are too dangerous for the wrong people to visit.
14.We have lots of stories and songs about all of our Waljiri, many of which we can’t tell you about because you haven’t been initiated.
15.This area is special to us. We don’t want like people getting to close to that area.
16.The camps of our old people are up there and around the proposed prospecting area and down into the prospecting license area. I spent much of my life walking around on that country with my old people. Old people told us to look after that Country. We don’t want to upset them.
17.We are looking after all the important places in our country. We are passing on these stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and look after it.
MAJOR DISTURBANCE TO LAND OR WATER
18.I am aware of the activities which the grantee party could do on the prospecting licence area under the Mining Act if they are granted the prospecting licence.
19.White people and strangers must ask for permission before coming onto my country because we have a lot of very special places on my country, from our old-time people and from early days. That’s why we are frightened if strangers arrive in our country uninvited. They might get sick or paralysed if they touch any sacred site. We know that strangers don’t follow our Law, that’s why they have to slow down and come meet with us.
20.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law. That’s why we frightened about white people strangers coming to our country because they just jump in anyway.
21.If strangers damage a site, artefact or other important place or thing, we feel upset you know. We feel very sad, like someone close to us has died. It’s like the same thing for country.
22.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.
23.Strangers cannot help themselves to our country. They have got to ask us first. If we say, ‘No’, they must leave our country, but if we say, ‘Yes’, they can stay and talk with us. If they make money out of my country, they can give my community a little bit because they are taking something from our country our land.
24.If we make an arrangement with mining people, we will tell them where they can go on our country. But they can’t do anything to our Dreamings. If we say ‘Yes’ to drilling, we expect something to come back to us, like help make a road, and helping my community. This is because we are looking after this country, not strangers.’
The evidence of Stan Brumby is uncontested and I accept it. Stan Brumby is listed as one of the persons comprising the Lamboo applicant for native title and I am satisfied that Stan Brumby has authority to speak on behalf of the native title party.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken pursuant to them are likely to directly 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 (‘Smith’) at 449-450, ([23])). 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 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) to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
The evidence suggests that the proposed licence has been subject to prior exploration, mining and prospecting activities which may already have affected the native title party’s community or social activities. There is insufficient evidence to establish that this has occurred to an appreciable extent.
Mr Brumby states (paras 6-9) that ‘There is good hunting and fishing in many parts of the prospecting area. We hunt Goanna, Kangaroo and sometimes Emu inside the prospecting area. We use boomerangs and rifles to do our hunting there and we go as often as we can, sometimes we stay there for a whole week. We also go fishing in the prospecting area, after rains and water holes fill up, we get bream and catfish. I am responsible for the safety of all sacred sites in that area. When I visit my country I also get all kinds of bush vegetables and bush medicines. For example I get Kulibi (bush banana) and Junda (bush onion) and Mura (bush potato) and I also get gum from mardiwah trees, which I like to chew to make my stomach good.’ In my view this evidence is only of a general nature and does not indicate a level of community or social activities such that prospecting activity is likely to interfere with them. There is no specific evidence of how often these activities occur or the number of people involved in them.
The evidence of Mr Brumby (paras 4 and 5) relating to ceremony grounds is also insufficient to sustain a finding that the prospecting activity is likely to interfere with the conduct of ceremonies. His evidence is that there are ‘several ceremony grounds there’ i.e. around Mt Dockrell including the prospecting licence areas but there is no evidence relating to when or how often ceremonies are conducted on them, and the frequency of them and how many persons are involved.
I am prepared to accept that there is some community or social activities of the kind referred to by Mr Brumby which occurs in and around the proposed licence areas. However, it is also clear that these activities occur over a much wider area. The Lamboo claim encompasses an area of 4028.8486 square kilometres and the proposed licences, which comprise a combined area of 7.59 square kilometres, are located centrally within the claim boundaries. Tribunal mapping suggests that there are a number of springs and water bodies not only within the external boundaries of the proposed licences but also in the wider vicinity. The evidence is not specific enough to support a finding of sustained community or social activities on the proposed licence areas which are likely to be interfered with by prospecting activities.
In general the Tribunal has found that, because of its relatively limited and temporary nature, exploration or prospecting activity is not likely directly to interfere with a native title party’s community or social activities except in an incidental and insubstantial way. The Tribunal also has regard to the fact that generally a prospecting licence area is a small part of the overall claim area and the community and social activities occur over that larger area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), Member Sosso (DP Sosso) (at [43]-[44])).
Taking all these factors into account I find that the exploration activity will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
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. 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 licences 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 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), Member 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 addition to the evidence on this issue provided by Mr Brumby and from the DIA Sites Register the Tribunal became aware from other Government evidence of objection application WO97/259 relating to exploration licence E80/2231 which almost entirely overlaps the proposed licence areas (see para [13]). In that matter the Tribunal determined, based on the interpretation of s 237 prior to the 1998 amendments to the Act, that the expedited procedure was not attracted as this grant had the potential to cause interference with sites of particular significance to the Lamboo native title party. At that time the Tribunal was to determine the expedited procedure issue based on what potentially could happen if the rights given by a prospecting or exploration licence were exercised to the full. After the 1998 amendments the Tribunal’s task became to make a predictive assessment based on the likelihood of the relevant interference or disturbance, i.e. no longer based on what might happen on a worst case scenario. Because of this difference in the applicable law the fact that the expedited procedure was determined not to apply over the same area as is currently under consideration cannot be had regard to. Nevertheless, despite the different legal regimes applicable the Tribunal considered the evidence from this matter as potentially relevant. Given that the Tribunal had considered this evidence the affidavit of Stan Brumby, affirmed on 23 October 1997, including information from the DIA sites Register were made available to the parties for comment, along with some more specific searches of the DIA Register and a site map prepared by the Tribunal. Mr Brumby gave evidence of special places on and around the area of E80/2231.
In the event the Tribunal considered this evidence to be of minor relevance and did not give great weight to it. The evidence confirmed that Mr Brumby knows the area well and that there were a number of sites of particular significance on the Register outside the subject area which apart from Miny-Miny did not overlap the prospecting licence areas and would not be interfered with by the proposed prospecting activity.
The evidence in relation to sites of particular significance in the present matters can be summarised as follows.
There are ‘sacred sites’ on Lamboo Station being; Ngunjuwiri, Rawungga, Budal, Karing, Jirdjidgi, Jawa, Wilinyjibari and Jiwrilin (Stan Brumby (‘SB’) para 4). The Tribunal’s geospatial section has been unable to locate any of these sites except Ngunjuwiri which is in the close vicinity of Mt Dockrell. This is partly confirmed by Mr Brumby when he says that the area around Mt Dockrell, including the prospecting licence is known as Karing and Ngunjuwiri (SB para 5). The DIA site information forwarded for WO97/259 identifies two sites with the name Karing and Karing birthplace which are between 10 and 15 kilometres south of the area of the area of the nearest prospecting licence (P80/1697). They are not likely to be interfered with by the proposed prospecting activity.
I observe in passing that in Mr Brumby’s 1997 affidavit he refers to Djaru people (i.e. Lamboo claimants) living at Ngunjuwiri (near Mt Dockrell) where he and his brother Jack Ryder) have started a new community. There is no evidence of people now living in such a community which is in close proximity to the proposed licence areas.
There are a number of ‘sacred ‘sites in the area around Mt Dockrell including several important ceremony grounds (SB para 5). Mapping provided by the Tribunal’s geospatial section shows that Mt Dockrell (and Ngunjuwiri) is in close proximity to the west of the proposed licence areas. The mapping also shows the parameters of the Miny-Miny registered site as approximately 2.5 kilometres square which also encompasses Mt Dockrell. The area of this site overlaps approximately 1.99 per cent of the P80/1696 and approximately 19.99 per cent of the P80/1697 area. Based on the evidence of Mr Brumby and the nature of the site – mythological, permanent register and closed – I can safely find that Miny-Miny is a site of particular significance to the native title party in accordance with their traditions.
Inside the prospecting licences (and elsewhere on Lamboo Station):
- there are places of great significance to Lamboo traditional religion, including places where the old people held ceremonies and where ceremonies are still held involving training young people (SB paras 10-11).
- artefact scatters (SB para 12).
- rock art areas which are ‘dangerous’ if the wrong people visit them (SB para 13).
- camps of old people that extend down into the prospecting licence area (SB para 16).
The DIA evidence in WO97/259 also shows a number of sites just to the west of the Miny-Miny site which are burial sites and potentially sites of particular significance although not specifically referred to by Mr Brumby. However, along with other sites included in this evidence, some of which by their nature could be of particular significance, these sites are not close enough to the subject area so as to make interference with them likely.
Mr Brumby’s evidence is not contested and although not very specific is sufficient to establish the existence of sites of particular significance to the native title party on the prospecting licence areas. Ceremony grounds (past and present), and rock art areas which may be dangerous to enter are in the Tribunal’s experience the sort of sites that Aboriginal people regard as of special significance. In this case Mr Brumby considers them to be so. While less clear cut, old people’s camps may also qualify depending on the evidence provided. Artefact scatters are not usually accepted as being of particular significance unless there is some corroborative evidence from the native title party explaining their significance. In this case the evidence at least supports a finding that there are ceremony grounds and rock art areas which are of special significance to the native title party in accordance with their traditions on the subject areas. I also consider on balance that the camp sites referred to are of this kind.
Taking account of the fact that there is an acknowledged recorded site (Miny-Miny) close to the prospecting licence areas, and Mr Brumby’s admittedly less specific evidence, I am satisfied that the prospecting licence areas contain sites of particular significance to the native title party. Mr Brumby also says this area of the prospecting licences is well known to him, something supported by the fact that some years ago he established and lived in a community (Ngunjuwiri) which is located close to Mt Dockrell and not far from the edge of the prospecting licence areas.
Presumption of regularity
I must now consider whether the presumption of regularity and the protective provisions and procedures of the AHA make it unlikely that there will be interference with any areas or sites of particular significance. The grantee party has submitted into evidence a brief and general work program indicating that soil sampling in ‘certain areas’ within the tenements would be carried out and that the results of the sampling, together with mapping and geophysical results, could lead to further exploration. Mr Brosnan has also provided an affidavit in which he says that: all care will be taken to avoid disturbance to any sites of significance that may be found; due respect will be accorded to the native title party in accordance with the AHA; and the grantee party wishes to have an amicable relationship with them.
I accept that the grantee party’s initial intentions do not involve high impact prospecting activity but I think it apparent that if the area is found to be prospective then more intensive activity will be involved, details of which have not been given, perhaps understandably, because this cannot be known until the preliminary investigations are concluded. I must therefore determine these matters 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]). What can be said with confidence is that even soil sampling has the capacity to interfere with sites and exercise of the full rights accorded by a prospecting licence certainly does.
I am satisfied that the grantee party is aware of its responsibilities under the AHA and that they will comply with the AHA. However, the grantee party has provided no specific evidence of what it intends to do about the protection of sites including whether it will conduct a heritage survey or otherwise consult with the native title party about them. On balance I am satisfied that this is a case where the expedited procedures should not apply. Unless there are the negotiations contemplated by s 31 of the Act, there will be a real risk of interference with sites, even if inadvertent. Apart from Miny-Miny which covers a limited part of two of the prospecting licence areas the exact location of sites on the prospecting licence areas have not been identified and consultation will need to occur with the native title party to ensure that they are avoided. If this does not occur there is a real risk of interference with them.
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 (5 December 2005) at [41]-[57] and Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 (‘Dann’)).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the prospecting 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 or prospecting activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that prospecting 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 386-388 [75]-[79] and the cases cited therein).
In this case there are no factors present which would take it out of the normal and I find that the proposed licences are not likely to cause major disturbance to land and waters. I have had regard to the fact that there are no Aboriginal communities in the vicinity and to the Government party’s regulatory regime in the Mining Act, and conditions imposed dealing with ground disturbing activities and rehabilitation. In this respect and in the absence of evidence to the contrary I am entitled to rely on a presumption of regularity and that there will be compliance with the Government party’s regulatory regime.
There are no sensitive, topographical, geological or environmental factors which would lead members of the Australian community generally to think that prospecting activities would result in major disturbance to land.
Determination
The determination of the Tribunal is that the act, namely the grant of prospecting licences P80/1694, P80/1695, P80/1696 and P80/1697 to Phyllis Marie Brosnan and Allan Neville Brosnan, are not acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
8 February 2010
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