Evelyn Gilla & Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd

[2002] NNTTA 35

NATIONAL NATIVE TITLE TRIBUNAL

Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd, [2002] NNTTA 35 (27 March 2002)

Application No:        WO01/174

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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Blackjack Resources 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:  27 March 2002

Catchwords:     Native Title – future act – proposed grant of exploration licence – expedited procedure objection application – act likely to directly interfere with the carrying on of community or social activities – act does not attract 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

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 Resources

Solicitor for the

Government party:             Crown Solicitor

Representative of the

grantee party:  Mr Mick Chammassian (did not participate)

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 51/904 (‘the exploration licence’) to Blackjack Resources Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 24.43 square kilometres located 49 kilometres south of Meekatharra, in the Shire of Meekatharra (centroid - latitude. 27^o 00 minutes, longitude 118^o 39 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 30 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 27 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.  The grantee party chose not to participate and provided no contentions or evidence hence by default relying on those lodged by the Government party.  The other parties complied with the Tribunal’s directions and 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 application (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 party 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 are pastoral leases 3114/898, 3114/584 and 3114/550, grazing leases 332/1999 and 332/558, a road and Crown reserves 10597 and 5571.  The State advised that the Guddo Marddah Aboriginal Community is located within 5.5 kilometres north west of the tenement.  The State also conducted a search of the Aboriginal Sites Register which revealed that there are no sites registered under the provisions of the Aboriginal Heritage Act 1972 (WA).

2. The native title party lodged affidavits of Evelyn Gilla, a named applicant on the Yugunga-Nya claim, Stanley Shay, a member of the claim group, and Cedric Stileman Davies, a qualified geologist employed by the Yamatji Land and Sea Council (‘the YLSC’).  None of this evidence was contested and I accept it for the purposes of this determination.

1. Affidavit of Evelyn Gilla

   ‘I, Evelyn Gilla of Leonora, in the State of Western Australia, being duly sworn make oath and say as follows:

   1.I am a member of the Yugunga-Nya claim. I am an elder of the Yugunga-Nya claim and I am recognised under the traditional Yugunga-Nya laws as speaking for and knowing the sites and traditional stories of the Yugunga-Nya claim.

   2.I have been authroized by the Yugunga-Nya working group to swear this affidavit and provide evidence on the behalf of the Yugunga-Nya native title claim group.

   3.I have seen a map, which shows the location of tenement E51/904 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement.

   4.I know the area in and around the proposed tenement area and can tell from the map where the tenement is and the features that are located within the proposed tenement area. I travel around the area including the area of the proposed tenement regularly and I know the area very well. I can drive all around that area and I don’t need a map. The proposed tenement is located on Polelle and Yarrabubba Station.

   5.I was born at Yuna Downs Station and have lived most of my life in and around Meekatharra and the general area of the proposed tenement. I am living at Leonora at the moment, but I still visit Meekatharra and the area in and around the proposed tenement on a regular basis.

   6.The proposed tenement is located within an important area for Yugunga-Nya people. My brother Rex Shay and my sister, Winnie Gentle were born at Hillview, which is about 10 kilometres south of Mount Yagahong, which is a site that is on the Register of Sites administered by the Department of Indigenous Affairs (“the Register”). Mount Yagahong is the most sacred and important places for Yugunga-Nya people.

   7.Nowthanna Hill is a site that is recorded on the Register. The proposed tenement is partially covered by the Nowthanna Hill site. The site is a men’s site. There are sacred and important stories for Nowthanna Hill. Only initiated men can know the story for Nowthanna Hill. I know about the site but cannot talk about it. Bad things can happen if people talk about a site when they are not allowed to. It is very important to Yugunga-Nya people that people do not touch or disturb the site.

   8.There are special sacred grounds all around the area. The old Yugunga-Nya people including my mother used to travel and camp all around the area including the area of the proposed tenement. The area including the area of the proposed tenement is a very good place to hunt and camp and that is why the old people used to camp there a lot. I know about those special sacred grounds and some of them are within the area of the proposed tenement. Yugunga-Nya people do not want to tell people where those sites are. They are important and special sites. It is important to Yugunga-Nya people that the sites are not interfered with or damaged.

   9.Exploration activities including driving over the area, drilling, soil sampling, rock chipping, forming tracks, exploration camps, or even walking over the area can damage sacred and important sites. According to Yugunga-Nya traditional law and custom some rocks should not be moved, as they form part of the sacred sites. People can easily damage sites without knowing, especially when there are lots of sites in an area. A person can damage or interfere with a site by accessing the area without consulting with the Aboriginal people who have responsibility to care for that site. I have seen where special sites have been damaged by exploration and mining activities.

   10.Yugunga-Nya people like people who wish to conduct exploration and other mining activities to do a “heritage survey” to identify the location of sites and areas of importance to Aboriginal people so that damage to sites and areas of importance can be avoided. Some mining companies come to Yugunga-Nya working group meetings to tell us where they are planning to do work and asking us whether we have any concerns. I have been told that Blackjack Resources have not responded to letters inviting them to consult with Yugunga-Nya people and asking them to conduct a heritage survey. If they are allowed to do exploration activities within the area of the proposed tenement without consulting Yugunga-Nya people first, then they might damage special sites.

   11.The proposed tenement area is a very good place for hunting and getting bush foods. The country is “wash away” country, which means that water flows to that area. The water lying around attracts the animals. Because of the water there is often green grass, which also attracts animals. The soil is good soil so it is good for growing plants.

   12.Because the area is a good area for hunting lots of Yugunga-Nya people go and hunt there regularly.

   13.There are quite a few Yugunga-Nya people living in Meekatharra, which is quite close to the area of the proposed tenement. There are roads that go from Meekatharra, past Mt Yagahong and Gabanintha Pool and through the area of the proposed tenement. The map attached and marked “A” shows several roads going through the area of the proposed tenement making the area of the proposed tenement is easy to get to.

   14.I travel through the roads that go through the area of the proposed tenement when I travel from Leonora to Meekatharra. I estimate that I have been on the road that goes through the area of the proposed tenement about 6 times this year.

   15.Bush foods are an important part of our diet, mainly we eat kangaroo meat and other bush foods. Kangaroos are part of our traditional diet. We also hunt emu, goanna and bush turkey.

   16.Yugunga-Nya people in Meekatharra go out kangaroo hunting about once every week to get some kangaroo meat for the family. I know that my nephews go out to the area including the area of the proposed tenement all the time. On the weekends, a couple of car loads will go out for the day. Last week a big mob went out.

   17.Some times when my nephews go out for the day they will go hunting and cook a feed at Gabanintha Pool, which is quite close to the area of the proposed tenement. That pool always has water in it and it’s a good place to go swimming, camping and hunting.

   18.We also collect bush tucker from the area including within the area of the proposed tenement. We get coglas, which are a bush fruit that is shaped like a pear. We also eat berries from mulga trees, gum off trees, and beans which all grow in the area including the area of the proposed tenement. We get these fruits whenever they are in season. I collect them whenever I am travelling through the area.

   19.If exploration activities are allowed within the area of the proposed tenement it is likely that the animals that we hunt will be frightened away. Exploration activities including using drill rigs, trucks and 4 wheel drives will flatten and destroy some of the plants from which we collect bush tucker.

   20.Yugunga-Nya people often drive around the bush including 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 machinery and exploration teams in the area we would keep away from the area and move on to another area.

   21.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.

   22.I have seen areas where bores and drill holes have not been covered. I have seen bungurras and rabbits and other dead animals down drill holes that have not been capped. They fall in the holes and cannot get out.

   23.I have seen animals and birds killed by pollution that is caused by exploration activities.

   24.I have seen the damage that exploration activity can have to our country. The excavation of 1000 tonnes of material will leave a big hole in the ground. I have seen where mining companies have left big tracks from having vehicles and drill rigs going all over the country. The ground and vegetation is disturbed when mining companies make tracks to drive their drilling rigs and other machinery on. Having tracks and drilling rigs going all over the place is not good for the country and the damage stays around longer than the mining companies. Lots of the country around Meekatharra has been damaged by exploration and mining activities.

   25.Yugunga-Nya people are responsible for looking after the land. I believe that the conduct of these activities within the proposed tenement area will involve a major disturbance to the land.’

2. Affidavit of Stanley Shay:  The affidavit of Stanley Shay is almost identical to that of Evelyn Gilla.  Specifically he says that he was born in Meekatharra (49 kilometres south of the tenement area) and lived all his life in and around it and the general area of the proposed tenement.  He currently lives at Burringurrah Community (some 250 kilometres north of the tenement area) but visits Meekathara and the area in and around the tenement on a regular basis.  His father and aunt Winnie Gentle were born at Hillview (Hillview is some 25 kilometres north-east of the tenement).  He confirms the evidence of Ms Gilla in para 16 of her affidavit about kangaroo hunting by claimant group members living in Meekatharra.  His cousins go out to the area of the tenement ‘all the time’.

3. Affidavit of Cedric Davies: The affidavit of Cedric Davies is identical to that lodged in Walley (WO01/179 and WO01/180).

Community or social activities (s 237(a))

1. The evidence establishes that the exploration licence area is a good place for hunting and getting bush food, as animals are attracted to water in the washaway area and to the green grass which is often found there.  Bush foods are an important part of the diet of members of the claim group.  Yungunga-Nya people hunt in the tenement area regularly.  Claimant group members living in Meekatharra go kangaroo hunting once a week and some go to the tenement area ‘all the time’.  Bush tucker is also collected in season although the frequency of this activity generally by claim group members is not specified.  Ms Gilla collects bush tucker when she goes through the area approximately six times per year.  Ms Gilla and Mr Shay express concern that animals will be frightened away by exploration activities and that when drilling trucks and four wheel drives are used plants from which bush tucker is collected will be flattened.  The claimants will not go to the area if there is intensive exploration.

2. It is possible to have some reservations about the native title party’s evidence.  Firstly, the affidavits are almost identically worded suggesting they have been prepared to a formula.  Secondly, it also appears that neither Ms Gilla nor Mr Shay participate in the hunting and gathering activities of the claimant group members resident in Meekatharra.  Their evidence is to some extent second hand as they no longer live in Meekatharra.  Nevertheless, they are related to some of the participants in the hunting activity and I can accept that they have been told of the regular community and social activities of their relatives and other claimants from Meekatharra.  The third reservation is that there is no direct evidence from the native title party about the Guddo Marddah Aboriginal Community which is only 5.5 kilometres from the tenement area.  The lack of evidence of the size of the community, the nature of any housing or camping facilities, the activities of the community and whether any claim group members are part of it is not helpful to the native title party’s case.  Nevertheless, the native title party’s evidence has not been challenged by any other party and I accept it despite the reservations expressed and my view that direct evidence from the participants in the activity on the tenement area would have been preferable.  The frequency of kangaroo hunting on the proposed tenement area leads me to conclude that there is real risk of substantial interference with it. 

3. There is also a risk of interference with the gathering of bush tucker but, on its own I doubt whether this could be regarded as substantial interference with community or social activities.  There is no evidence that the bush tucker sources are scarce or limited to a particular area.  I doubt whether exploration activity including drilling which is usually targeted to specific areas would so destroy the bush tucker sources as to prevent or significantly reduce the claimants’ capacity to utilise them.

Sites of particular significance (s 237(b))

1. The area in which the tenement is situated is an important area for the native title party and there are special sacred grounds all around it (paras 6 and 8 of Evelyn Gilla’s affidavit). Both Ms Gilla and Mr Shay know of special sacred grounds some of which are on the tenement area. They decline to say where they are because the claimants do not wish to reveal their location. In previous matters the Tribunal has found that general evidence from an anthropologist to the effect that there are likely to be sites of significance in an area is insufficient to establish their existence for this purpose of s 237(b) (see Albert Little & Ors (Badimia People)/Western Australia/Wildbeach Corporation Pty Ltd, NNTT WO00/351, Hon E M Franklyn QC, 9 May 2001).  Direct evidence is usually required of the existence of the site and of its significance.  Concerns about confidentiality can be met by procedures established by the Tribunal to receive evidence in a restricted context and to prohibit publication of it. 

1. In the present matter two members of the claimant group depose from their own knowledge to the existence of some ‘special sacred grounds’ which are ‘important and special sites’ within the area of the tenement.  I regard this is sufficient to make a finding that there are some sites of particular significance to the native title party in accordance with their traditions on the tenement area.

2. In addition, the native title party refers to Nowthanna Hill which they say overlaps the southern edge of the tenement to a small extent and is a site on the Register kept by the Department of Indigenous Affairs (para 7 of Evelyn Gilla’s affidavit).  It is a men’s site for which there are sacred and important stories which people cannot talk about without permission.  I find that it is a site of particular significance to the native title party in accordance with their traditions.  The Government party’s evidence is that there are no sites recorded on the Register of sites kept by the Department of Indigenous Affairs on the proposed tenement area.  The tengraph map provided by the Government party shows Nowthanna Hill (presumably its summit) to be some 4 kilometres south of the tenement’s southern boundary.  This situation is confirmed by the maps attached to the affidavits of Ms Gilla and Mr Shay.  In addition, these maps show a small overlap of some 500 metres of the site over the tenement area on its southern side.  Had this discrepancy in the evidence been of importance to my decision I would have sought clarification from the Government party.  However, I am aware that there is often a margin for error in determining the boundaries of a site and whether on the Register or not the evidence of Ms Gilla and Mr Shay establishes it as a site of particular significance.  Its existence being at the very least in the close vicinity of the tenement corroborates the other evidence about the importance of the general area of the tenement to the native title party.

3. The native title party also refers to Mount Yagahong as a site on the Register which is the ‘most sacred and important’ place for Nugunga-Nya people (para 6 of Evelyn Gilla’s affidavit).  It is located about 15 kilometres north of the tenement.  I find that this site is of particular significance to the native title party in accordance with their traditions, but given its distance from the area and that its location is known it is unlikely to be interfered with by exploration on this tenement. 

4. I now turn to whether the presumption of regularity and protective provisions of the Aboriginal Heritage Act 1972 (WA) and associated procedures are sufficient to ensure that it is unlikely in the sense of there being no real risk of the sites on the tenement being interfered with. The Tribunal has often but not necessarily always held this to be the case (see cases cited in Walley (WO01/179 and WO01/180) at [51])).  On its own I doubt whether it is likely that there would be a real risk of interference with Nowthanna Hill.  It is known and apparently on the Register.  Its location is disclosed by the evidence and the tenement either encroaches on it in part or is very close to it.  The grantee party could not claim to be ignorant of it.  The grantee party has declined to participate in these proceedings.  It has not attempted to negotiate with the native title party to see if agreement could be reached on withdrawal of the objection.  While this is not a particularly helpful attitude there is nothing to suggest that it will not obey the law which protects Aboriginal sites.  Using the presumption of regularity, I find there is not likely to be interference with sites whose location is known (such as Nowthanna Hill).

5. However, the evidence establishes the existence of other sites of particular significance on the tenement whose location is known to the native title party but not to other people and the precise location of which has not been disclosed in these proceedings.  Consultation with the native title party will be necessary to avoid damage to these sites.  The grantee party has shown an indifference to these proceedings and in particular not provided evidence of what it intends to do to protect the sites on the tenement.  It will be aware of its obligations under the Aboriginal Heritage Act and of the options available to protect sites contained in the Government party’s Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers but has not in the circumstances of the sites which exist on this tenement provided any indication of how it will do this. Despite accepting that the grantee party will obey the law, the existence of some special sites whose precise location is unknown to it on an area generally important to the native title party mean that there is a real risk of interference with them. This case falls into the category of an area which is rich in sites, such that the presumption of regularity is insufficient to preclude a real risk of interference with them without the normal mandatory negotiations required by the Act.

Major disturbance (s 237(c))

1. The principal evidence under this heading is the affidavit of Cedric Davies supported by the assertions in Ms Gilla’s affidavit (paras 21-25). In view of my findings under ss 237(a) and 237(b) it is not necessary to consider this issue.

Determination

1. The determination of the Tribunal is that the grant of exploration licence 51/904 to Blackjack Resources Pty Ltd is not an act attracting the expedited procedure.

Hon C J Sumner

Deputy President
27 March 2002