Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Giralia Resources Nl

[2002] NNTTA 25

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Giralia Resources NL, [2002] NNTTA 25 (8 March 2002)

Application No:        WO01/182

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

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IN THE MATTER of an inquiry into an expedited procedure objection application

Evelyn Gilla and Others on behalf of Yugunga-Nya (Native Title Party)

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The State of Western Australia (Government Party)

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Giralia Resources NL (Grantee Party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:           Hon C J Sumner, Deputy President
Place:                 Perth
Date:                  8 March 2002

Catchwords:     Native title – future act – proposed grant of exploration licence – expedited procedure objection application – no likelihood of direct interference with community or social activities, interference with sites of particular significance or major disturbance to land – act attracts the expedited procedure.

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

Cases:Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002

Counsel for the

native title party:                 Ms Pamela Ellison, Yamatji Land and Sea Council

Representative of the

native title party:                 Mr Cedric Davies, Yamatji Land and Sea Council

Representative of the

Government party:             Mr Phil Boyland, Department of Mineral and Petroleum Resource

Solicitor for the

Government party:             Crown Solicitor

Representative of the

grantee party:  Mr Dennis Hawtin

REASONS FOR DETERMINATION

Background

1. On 4 April 2001, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the Government party’) advised its intention to do a future act, namely to grant exploration licence 51/945 (‘the exploration licence’) to Giralia Resources NL (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 27.47 square kilometres located 50 kilometres south of Meekatharra, in the Shire of Cue (centroid - latitude 27^o 01 minutes, longitude 118^o 24 minutes). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. On 31 July 2001, Evelyn Gilla and Others on behalf of Yugunga-Nya (‘the native title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure.  The native title party’s Application for Determination of Native Title (WC99/46) was registered by the Tribunal on 12 June 2000.  The area of the exploration licence is situated on this claim area.

3. The Tribunal accepted the objection application on 30 August 2001.

4. In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted.  Following receipt of this material, the grantee party was given time to consider whether to request an oral hearing and seek leave to cross-examine witnesses but decided that it did not wish to do so.  The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the Government party.  The other parties were content for a determination to be made on the papers and I have decided that I can adequately deal with the matter in that way (s 151 NTA).

5. The objection applications (para 7) asserted that the s 29 notice did not meet the requirements of the Act. This issue was not pursued further by the native title parties and no evidence was produced to support their assertion. I am satisfied that the Tribunal has jurisdiction to determine the matter.

1. Section 237 of the Act provides:

‘237    Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

Legal principles

The nature of an exploration licence and activities permitted by it.

1. In Western Australia/Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002  I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[37]).  I adopt those findings for the purposes of this inquiry.

The Evidence

1. The Government party’s evidence establishes that the underlying land tenure of the proposed tenement is a combination of pastoral lease 3114/55, grazing lease 332/1906 in addition to Crown reserve RES 12300, vested in the Shire of Cue.  The State advised that there are no Aboriginal communities on or in the vicinity of that land and produced a search of the Aboriginal Sites Register which revealed that there is one site (Cullculli Hill) registered under the provisions of the Aboriginal Heritage Act 1972.  The site is on the permanent register, is classified as having closed access, is mythological  in nature and can be accessed by males only.  It is also classified as having a reliable description of its location.

2. The native title party lodged affidavits of Hazel Little, Elizabeth Little, Nicholas Paul Green, Director of Research employed by the Yamatji Land & Sea Council (‘the YLSC’) and Cedric Stileman Davies, a qualified geologist employed by the YLSC.

1. Affidavit of Elizabeth Little

   ‘I, Elizabeth Little of Meekatharra in the Sate of Western Australia, being duly sworn make oath and say as follows:

   1.I am a member of the Yugunga-Nya (WAG 6132/98) native title claim group.

   2.I have seen a map. Which shows the location of tenement E51/945, (‘the proposed tenement’). Annexed hereto and marked “A” is a map showing the location of the proposed tenement.

   3.I am familiar with the area surrounding the proposed tenements and the proposed tenement itself and know it well. The tenement is on Cullculli Station. Cullculli Hill is within the area of the proposed tenement. I know where that hill is.

   4.Though my mother has passed away she was one of the old Yugunga-Nya people. She lived a traditional lifestyle and spoke traditional language. Her traditional homelands included the area of the proposed tenement and the surrounding districts. Cullculli Station is included in the area, which my mother would call her traditional homelands.

   5.I grew up around the Cue area. My mother would show us all around her homeland including the area of the proposed tenement.

   6.My mother has told me that the old people use to camp all through the area.

   7.According to Yugunga-Nya traditional law and custom, I have received the right to speak for this country from my mother.

   8.There are sites within the area of the proposed tenement. I have been advised that a site at Cullculli Hill has been placed on the Register of Sites (‘the register’) administered by the Department of Indigenous Affairs. Attached hereto and marked “B” is an extract from the Register. The extract shows that the site is reliable and on the Permanent Register, a closed site and only accessible to males.

   9.I have been told that the site is an important and sacred law ground and that it is a men’s site and according to Yugunga-Nya traditional law and custom, only initiated men can go there. There are stories and songs for the hill but women can’t know the stories and the songs. I would not go up onto the hill but would go to the base of the hill. I went to the base of the hill in the early part of this year.

   10.I believe that exploration activities, including driving over the hill, drilling on the hill, chipping and rock sampling would disturb the site.

   11.On the weekends when I am not working in Meekatharra I live at an outcamp, which is located on Karbar Station, which is close to the location of the proposed tenement. The distance would be approximately 25-27 km south of the proposed tenement.

   12.Most weekends I, along with members of my family drive around the bush in around the area of the out camp, including, at times within the area of the proposed tenement, looking at different places, visiting country and maintaining our traditional connection to the land. I believe that the presence of trucks, drill rigs, 4 wheel drives and exploration teams would interfere with this practice. If we saw exploration teams or drill rigs an area we would not go to that area, but would move on and visit a different place.

   13.We hunt for and eat traditional food regularly. We hunt and collect bush tucker around the out camp including the area of the proposed tenement. We hunt what ever we can get and collect whatever bush tucker is in season. I estimate that we would go hunting about every second weekend and would hunt and collect food on the area of the proposed tenement about once each month. I estimate that the last time we went to the proposed tenement was about one month ago.

   14.We hunt marlu (kangaroo), emu and bungarra (goanna). We also collect emu eggs. The bungarra live in rabbit warrens. The area, including the area of the proposed tenement is a good hunting area.

   15.In season we collect mulga seeds, which are flat seeds in a pod, like peas. We eat them fresh without cooking them. We also eat bogarda seeds, which are like the mulga seeds except that they are long and flat. We also collect cogulas, which are like a hard green apple, which grows on a vine. I have heard cogluas called bush banana or silky pear.

   16.Within the proposed tenement grows a shrub that is used for bush medicine. I don’t know the name of it. You boil the leaves in water and use the water as an antiseptic. If you have sores or other infections or skin diseases such as chicken pox you can bath in it. I use this bush medicine when necessary.

   17.Exploration activities including using drill rigs, truck and 4 wheel drives will flatten and destroy some of the plants from which we collect bush tucker and bush medicine. The activities will also frighten away the animals that we hunt.

   18.In addition I have been informed that if the tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:

   (a)Reverse circulation drilling in areas of hypersaline groundwater.

   (b)Diamond (core) drilling

   (c)The excavation of up to 1000 tonnes of material.

   19.I have read the affidavit Cedric Stileman Davies dated 4 December 2001 and understand what the above activities involve.

   20.I believe that conduct of these activities in within the proposed tenement area will involve a major disturbance to the land.’

2. Affidavit of Hazel Little:  Hazel Little’s evidence is very similar to that of Elizabeth Little, who is her sister.  She lived at her sister’s outcamp for about 18 months but left about one year ago and currently lives at Mt Magnet (some 130 kilometres to the south of the tenement).  She confirms that when visiting her sister they drive around the bush in and around the outcamp ‘including, at times’ within the area of the proposed tenement.  Until about three months ago when her motor car broke down she and her family would visit the general area including that of the proposed tenement on a regular basis, approximately every second weekend.  They stay at the outcamp.

3. Affidavits of Cedric Davies and Nicholas Green:  The affidavit of Cedric Davies is identical to that lodged in Walley (WO01/179 & WO01/180) and that of Nicholas Green similar in many respects.

Community or social activities (s 237(a))

1. For the objection to be upheld the evidence must show that there is a likelihood in the sense of a real risk that there will be substantial impact on the community or social activities of the native title party’s.  Evidence clearly establishes that the Little family frequent the area of the outcamp on Karbar station reasonably regularly for the purpose of hunting, collecting bush tucker and bush medicine and to visit country and maintain connection with it.  The outcamp is some 25-27 kilometres south of the proposed tenement.  With respect to the proposed tenement itself they go there ‘at times’ when visiting the outcamp.  Elizabeth Little estimates this to be about once a month.  The evidence on frequenting the area refers only to Elizabeth Little, her sister Hazel and their families.  It is not clear how many people are involved.  Neither Elizabeth nor Hazel Little are applicants on the claim and while they are part of the claim group and authorised to speak for the country (paras 1 and 7 of Elizabeth Little’s affidavit) they only make reference to them and their families.  There is no reference to other members in the Yugunga-Nya claimant group or their activities in the area.  Even if the Little families have special responsibilities over and above other members of the claim group for the area around the outcamp (which is not clear from the evidence), the evidence of community or social activities is limited to that family and not others.

2. While there are undoubtedly social if not community activities which take place on the area of the tenement and there will be some interference with the Little family’s activities, I do not regard this as sufficiently substantial as to fall within s 237(a). In considering likelihood I have also taken account of the fact that the area of the exploration licence is quite large and that if ground-disturbing activity such as drilling occurs it is unlikely to be over the whole of the tenement at the same time. For similar reasons to those expressed in Walley (WO01/179 and WO01/180) I find that the evidence in Mr Green’s affidavit, expressed in general terms, of distress about ground disturbing activities and the consequence of unauthorised entry is insufficient to indicate that there will be direct interference with any community or social activities of the native title party.

Sites of particular significance (s 237(b))

1. I accept that Cullculli Hill is a site of particular significance to the native title party in accordance with their traditions.  Apart from this site there is a general statement from Elizabeth and Hazel Little and Nicholas Green that there are likely to be sites within the area of the proposed tenement.  No details are given of their number or special significance.  Mr Green says that the Register is unlikely to be an accurate record of all sites in an area and accept this evidence.  However, on the direct evidence of the claimant’s witnesses there is no basis to find that the protective measures in the Aboriginal Heritage Act will not be sufficient to render interference with them likely.  Cullculli Hill is registered and known and the grantee party will need to ensure that it avoids the site (including by consulting with the native title party) if it wants to ensure that the law is not broken.

2. My conclusion is that on the facts established, the presumption of regularity and protective measures in the Aboriginal Heritage Act mean that there is not likely to be interference with sites of particular significance.

Major disturbance (s 237(c))

1. The principal evidence under this heading is the affidavit of Cedric Davies, supported by assertions from Elizabeth and Hazel Little that the ground disturbing activities he describes will involve major disturbance to the land.  The reasons explained in Walley (WO01/179 and WO01/180) for finding that the likelihood of major disturbance to land has not been established are equally applicable in this case.

Determination

1. The determination of the Tribunal is that the grant of exploration licence 51/945 to Giralia Resources NL is an act attracting the expedited procedure.

Hon C J Sumner

Deputy President
8 March 2002