Glenn Councillor & Ors on behalf of Hutt River/Western Australia/Duketon Consolidated Pty Ltd
[2010] NNTTA 140
•1 September 2010
NATIONAL NATIVE TITLE TRIBUNAL
Glenn Councillor & Ors on behalf of Hutt River/Western Australia/Duketon Consolidated Pty Ltd, [2010] NNTTA 140 (1 September 2010)
Application No: WO10/314
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
Glenn Councillor & Ors on behalf of Hutt River – (WC00/1) (native title party)
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The State of Western Australia (Government party)
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Duketon Consolidated Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 1 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 attracted
Legislation:Native Title Act 1993 (Cth), ss 23B, 29, 31, 61A(2), 148(b) 151(2), 233, 237
Mining Act 1978 (WA), ss 63, 29(2)
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, Member
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Little 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
Malcolm Papertalk & Others on behalf of Mullewa Wadjari/Western Australia/Duketon Consolidated Pty Ltd, NNTT WO09/1010, [2010] NNTTA 65 (10 May 2010), 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
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso
Rosas v Northern Territory (2002) 169 FLR 330
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
Solicitor for the
native title party: Ms Brooke Creemers, Yamatji Marlpa Aboriginal Corporation
Representative of the
native title party: Ms Samantha Rosenfeld, Yamatji Marlpa Aboriginal Corporation
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
Representative of the
grantee party: Mr Michael Giles, South Boulder Mines Ltd
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 E66/73 (‘the tenement’) to Duketon Consolidated 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 tenement comprises an area of 211.29 square kilometres located 6 kilometres south of Northampton in the Shire of Northampton. It is 100 per cent overlapped by the registered claims of the Hutt River (WC00/1 – registered from 7 February 2000) (‘the native title party’) and the Mullewa Wadjari Community (WC96/93 – registered from 19 August 1996). No other native title claims overlap the tenement.
On 15 December 2009 and 4 March 2010, expedited procedure objection applications were lodged with the Tribunal in respect of the tenement by Malcolm Papertalk & Ors on behalf of the Mullewa Wadjari Community and Glenn Councillor & Ors on behalf of Hutt River respectively.
On 11 January 2010 and 22 March 2010, Deputy President Sumner accepted the expedited procedure objection applications of the Mullewa Wadjari Community and Hutt River respectively, and on the same respective dates, in accordance with standard practice in expedited procedure objection matters, made directions for the parties to provide contentions and evidence. The directions were drafted to allow the parties a period of four months after the section 29 closing date for the lodgement of objections to have the opportunity of reaching an accord and thus resolve the matters by consent.
On 10 May 2010, DP Sumner dismissed the objection application of the Mullewa Wadjari Community pursuant to section 148(b) of the Act for failure on the part of the Mullewa Wadjari Community to comply with the directions of the Tribunal by the due date (Malcolm Papertalk & Others on behalf of Mullewa Wadjari/Western Australia/Duketon Consolidated Pty Ltd, NNTT WO09/1010, [2010] NNTTA 65 (10 May 2010), Hon C J Sumner)
With respect of the present matter, at the first status conference on 2 June 2010 the grantee party representative confirmed the grantee party’s desire that the matter proceed to an inquiry before the Tribunal.
The Government party lodged its contentions and evidence on 29 June and 6 July 2010. Following two requests to extend the time required for compliance with directions, on 2 August 2010 the native title party lodged a statement of contentions as well as the signed witness statements of William Mallard (Senior) and Keith Councillor. The grantee party indicated at the listing hearing on 12 August 2010 that it would not be lodging any contentions or evidence and would rely on that provided by the Government party.
The Tribunal’s geospatial unit has produced two maps of the tenement area which were provided to all parties during the course of the inquiry.
Parties agreed at the listing hearing 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)).
On 18 August 2010, I was appointed by DP Sumner as the Member for the purposes of the conduct of the 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’), DP Sumner 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 (WA) 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.)
Contentions of the Government Party
Government party documentation establishes the underlying land tenure of the tenement to be as follows:
·269 portions of private land (totalling approximately 20,800 hectares or 98 per cent of the tenement area);
·16 portions of Vacant Crown Land (totalling approximately 140.22 hectares or less than 0.7 per cent of the tenement area)
·Northampton Water Reserve (35.3 per cent of the tenement area);
·Crown Reserve 39919 (Public Recreation), Crown Reserve 40633 (Foreshore Protection), Crown Reserve 12015 (Travellers Stock and Water), Crown Reserve Historical Purposes and Crown Reserve 7912 (Trigonometrical Station) (totalling 0.25 per cent of tenement area);
·Environmental Protection Authority Red Book Recommendation (0.7 per cent of tenement area);
·58 road reserves (totalling approximately 18.51 hectares or less than 0.01 per cent of tenement area); and
·Townsite boundary (less than 0.1 per cent of tenement area).
The entire area is a covered by a Dieback Risk Zone (DRZ/7) under the authority of the Department of Environment and Conservation.
The Department of Mines and Petroleum’s Quick Appraisal provided by the Government party notes the existence of five sites within the tenement, each with an overlap of 0.1 per cent or less. Two sites are registered with the Heritage Council of Western Australia (HWA3270 – The Bowes and HWA3271 – Oakabella); one is registered on the now frozen Register of the National Estate (NER/14923) and the remaining two are identified as Aboriginal Heritage Areas (AHA/26 and AHA/27) under the jurisdiction of the Department of Indigenous Affairs.
There are no Aboriginal communities identified inside or in the near vicinity of the tenement.
Department of Indigenous Affairs (‘DIA’) documentation provided by both the Government party and the native title party reveal nine sites registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) overlapping the proposed licence as follows:
Site ID 436 – Woods Farm Paintings (painting – permanent register, open access, no restrictions), overlapping part of the tenement’s southern boundary;·
Site ID 437 – Woods Farm Blowout (artefacts/scatter – permanent register, open access, no restrictions), wholly within the southern boundary of the tenement;·
Site ID 5143 – Yetcheno Site (skeletal material/burial, artefacts/scatter – permanent register, closed access, no restrictions), wholly within the tenement on the western boundary;·
Site ID 5191 – Racecourse Paddock 1 (skeletal material/burial, artefacts/scatter – permanent register, open access, no restrictions), wholly within the tenement on the northern boundary;·
Site ID 5560 – Northampton (skeletal material/burial – permanent register, closed access, no restrictions), overlapping part of the tenement’s southern boundary;·
Site ID 5563 – Appetarra (painting – permanent register, open access, no restrictions), wholly within the tenement on the northern boundary;·
Site ID 5681 – Koebe Juana (camp – insufficient information, open access, no restrictions), wholly within the tenement on the south-eastern boundary;·
Site ID 24413 – Elephant Hill ‘Moondong’ (mythological – lodged register, closed access, male access only), partially overlapping the tenement to the south-east; and·
Site ID 24416 – Bowes River (mythological – permanent register, open access, no restrictions), flowing through the length of the tenement.·
Government party documents indicate that the entire area of the tenement has been released for geothermal acreage and is covered by six proposed geothermal exploration applications yet to be granted. There is no current mineral exploration or mining activity in the area of the tenement, however six exploration licences with varying degrees of overlap were active variously from 1989 and 2003. Three mineral claims with overlaps of no more than 0.3 per cent each were active from 1974 to 1975.
The grant of the tenement 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 include restrictions and/or consent to be obtained prior to conducting activities over the Great Northern Highway, Geodetic Survey Stations, Crown Reserves and Townsite Boundary (conditions 5-7).
The grant of the tenement will also be subject to a condition requiring the licensee to provide a plan of management to prevent the spread of dieback disease to the Department of Mines and Petroleum prior to any exploration activities (condition 8).
An additional five conditions will be imposed with respect to the Environmental Protection Authority Red Book Recommendation (conditions 9-13).
Consent to explore on the Northampton Water Reserve will be granted subject to a further eleven conditions including restrictions on activities within the near vicinity of Public Drinking Water Source Areas (conditions 14-24).
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:
o the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder;
o Water and Rivers Commission Act 1995 (WA) and any Regulations thereunder;
o Country Areas Water Supply Act 1947 (WA) and any Regulations thereunder; and
o Metropolitan Water Supply Sewerage and Drainage Act 1909 (WA) and any Regulations thereunder.
·The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Attached to the contentions of the State at Annexure B was a copy of the statutory declaration executed by Michael Ashley Giles on behalf of the grantee party declaring that it had offered to enter into a Regional Standard Heritage Agreement (‘RSHA’) with the native title party by executing the RSHA and forwarding it to the Yamatji Land and Sea Council and inviting them to accept the offer. The execution of that document, the forwarding of it to the native title party’s representative and the provision of such a statutory declaration to the State is, as I understand it, a requirement imposed by the State on a grantee party before the State will make the statement to the effect that the expedited procedure should apply. In essence, that document, should it be entered into by the native title party, will require the grantee party to conduct a heritage survey over the area of its intended exploration before any ground disturbing work can be undertaken.
Evidence provided by the native title party
The submissions of the native title party include the signed witness statements of William Mallard (Senior) (‘WM Stt.’) and Keith Councillor (‘KC Stt.’), made in the following terms.
‘Statement of William Mallard (Senior)
1. I am a member of the Hutt River Claim and am a Hutt River Working Group member. I was nominated as a Mallard Family representative to speak for the Mallard family within the claim as a Nanda man. I was elected to the working group by the Hutt River community.
2. I was born on Nanda country and I am a Nanda man, because I am a descendent of Sarah Feast who was a Nanda woman. My father was Fred Mallard and he was a Nanda elder.
3. I am recognised by my family as an elder for area which includes the Tenement Area. According to Nanda law and custom I can speak for country covered by the Hutt River claim, because I am a traditional owner and a descendant of the traditional owners of this area. I am able to talk about this area because it is my father’s country and my knowledge about country was passed down to me from my father. As my older brother is now blind, he has passed on to me his authority to speak on behalf of the members of my family about our traditional country.
4. I was also nominated by the Hutt River working group to explain why there are sites in the Tenement Area which are important to our people.
5. I have been shown a map of exploration tenements E66/73 (“the Tenement Area”) by my lawyer from Yamatji Marlpa Aboriginal Corporation (“YMAC”), a copy of which is annexed and marked “A1”.
6. On 16 June 2010, my son William (‘Willo’) Mallard Junior and I met with our lawyer Brooke Creemers and we talked about some of the sites and the significance of the area covered by the Tenement.
7. The tenement is located on land which traditionally is Nanda country. Our laws and customs say that we as Nanda people belong to this land. This means other people have to ask permission from my family or other Nanda people before they go there. This is because we are the people who belong to that country and are responsible for looking after it.
8. The land is very important to my family. When I was a young fella I was taught about the importance of the land, our country, by my father and older brothers.
9. When I was a young boy we regularly visited the Tenement Area as we grew up all over Nanda country. When I was a young fella we use to go hunting for Kangaroos in the Tenement Area. We use to hunt from Bowes River through to Moondoong (‘Elephant Hill’) and down near Oakabella. To this day I still visit the area because it is a very significant area to the Nanda people and has a lot of important sites. At times we go to visit the area and take the kids there on the weekend to show them around the area and teach them what we know. To this day I still live on our traditional country and the Tenement Area is not that far from where I live.
10. There are a lot of sites throughout the Tenement Area. Some of these sites are registered and some are not. There are different kinds of sites through the area and some of these are extremely important to our people. There are sites that are part of our dreaming stories (mythological), burial sites, a camping site and hunting ground. There are also rock paintings and artefacts scattered throughout the Tenement Area.
11. Some of the sites in the Tenement Area are part of our dreaming stories and are very significant to the Nanda people. These sites mean so much to us and under our law and culture that they should never be damaged or disturbed. We try to do everything we can to make sure that these sites don’t get damaged. These places need to be treated carefully. When we go to these places there are things we do to make sure that it’s ok to go there. According to our traditional Nanda law, we are not allowed to tell people all the stories or tell people all the details about some of the sites because they are secret.
12. The Bowes River which runs through the tenement is a very significant site and is sacred to the traditional owners of the area. It is part of our dreaming and creation story. We can tell some of the story about it to explain how important it is to us.
13. The Bowes River is connected to the Murchison River from the sea near Kalbarri all the way to Ellendale Pool through our dreaming story. The dreaming story is about how the fresh water snakes created the waterways. Nanda people call the water snake the Bieemarra. The Bieemarra created all the water ways and springs in the Tenement Area. The old people told me it came from out near Meekathara (sic) in Wajarri country and travelled, creating the Murchison River and came down through the hills towards the sea. When it reached the sea the sea snake came up and chased it back inland. It then created the Nuningay Spring and continued travelling down through the country creating the Bowes River. It finally rested in the place now known as Ellendale Pool. The Bieemarra has not been seen for many years until recently.
14. Last year a tribal woman was at Ellendale Pool. While she was there she saw the Bieemarra wake up and rise out of the water. We believe the Bieemarra has woken because of the damage that is being done to the land and therefore the people.
15. We believe Aboriginal people are connected to the country, therefore if you disturb the land you hurt Aboriginal people as our spirit is tied to the land. We believe that recently there has been a lot of unrest amongst Aboriginal people. This is because country is being disturbed and the Wudajis (spirit people) are upset and have gone to places where the traditional owners for those areas which have been damaged are. They are stirring people up and causing problems because they are upset. We don’t talk to much about the Wudajis. They are good if the country is left alone and they are not disturbed but can be bad if the country is interfered with. The Wadajis live in the hills and caves. There are Wadajis in the Tenement Area. We wouldn’t want to make the wudajis upset by disturbing sites because they would then go and cause trouble.
16. If you damage our sites and our country you destroy our dreaming. If we can’t protect our country our dreaming and spirit is damaged or destroyed too. When our sites are destroyed there is nothing left.
17. When we go to the water we throw sand in it to let the snake know we are there. If you don’t throw sand in the water, you will get sick. Removal or disturbance of the water from these places lessens the spiritual connection which hurts the people and causes illness on occasions. If you disturb the water the snake will go somewhere else and the water will dry up. A lot of people don’t care about these things but they matter to us because our law says we have to do this.
18. There is another very important site in the Tenement Area. This place is a registered site. I can’t say too much about it because it is a bad place. My old Dad told me the place is called Moondoong. You white fellas have named it Elephant Hill because of how it looks. We call it Moondoong in our language and this means devil or evil spirit. It is a bad place where the evil spirit or devil lives. It is not good if this area is disturbed because of the spirit which is there.
19. There is a place right near the Tenement Area which is a significant and special place to the traditional owners because it is the place where our ancestors speared Governor Fitzgerald and some of our ancestors were killed. In 1848 the Governor and his people were going through the area and when he went near Table Hill our ancestors tried to chase them away. The Governor shot one of our ancestors and so our people speared him through the leg and chased them away from the area. If explorers go and disturb this area they could disturb the burials which are around that area. If burial sites are disturbed we could get sick.
20. According to our stories all the hills and rocks that are on the country are places which are connected to or created by spirits. Some of these hills and rocks have a spirit there. Each of these places is connected to our dreaming and part of our dreaming. If these places are damaged or disturbed because they are not accessed in the correct way then we could get sick because you are disturbing the spirits that are in those places.
21. The hills throughout our country and in particular throughout the tenement were places where our old people use to travel. They used to use these places as navigation sites and would stop by these places on the way. The old people used to walk for miles and miles using these sites and the country as their map. There is an old camp in the Tenement Area because the old people used to travel through the Tenement Area. As this was a stopping place, there are burial sites and many artefacts there.
22. In our Aboriginal culture we have to look after the whole of our country. This means we have to look after the areas in the Tenement. We must take care of country and especially look after important places. We don’t choose whether or not we want to take care of country it’s just something we have to do. We have to follow this and we don’t have any choice about it. I got told by my old father I had to look after country.
23. The reason we have to look after country is because it is part of our law and who we are. If our country isn’t accessed the right way and gets disturbed or destroyed, bad things could happen to us. Part of looking after our country means we have to look after other people who don’t belong to our country. If a person who doesn’t belong to our country doesn’t do things the right way or take care of these places, things can happen to them and us. Our culture says that they will get sick if they don’t do things the right way and don’t respect the country.
24. There are burial sites and skeletal remains which are inside the tenement area. The tenement area includes places where our ancestors were buried. Burial places and skeletal remains should never be disturbed. It is the resting place of these people and if their spirits are disturbed they could make us sick. If these sites were disturbed the spirits could follow people and take away their spirit.
25. There are rock shelters in the Tenement Area where there are paintings. Nanda people don’t like other people to know where these places are as some of these places are also burial sites and we don’t want these disturbed. We have been to see these places many times. We still go there and show our kids. We go there and just check to make sure everything is still ok.
26. It is important to protect very significant places such as the waterways (particularly the river), burial sites and Moondong Hill because people shouldn’t be going there without knowing about the area first. As these places are part of our dreamtime stories and have other stories associated with them it can affect places outside the tenement if they are damaged. As the carers for our country it is our responsibility to protect these places and protect people from getting hurt if they go there.
27. A lot of people don’t even bother to make an effort to talk directly to the Traditional Owners and ask them to accompany them to these places. This worries us because places like the ones I’ve told you about can be dangerous.
28. Aboriginal Law is powerful and is also dangerous. We believe people have gotten sick because they haven’t done things the right way and have disturbed the spirits. If a mining company wants to go on country they need to talk to us about how to go on country and the right way about doing things so that our country isn’t disturbed and no one gets sick.
29. I don’t like that the mining companies want to go exploring in these places without talking to us first. It makes me uncomfortable. We want the mining company to come and talk with us first and not just go there. The people from the company are strangers on our country and we want to talk to them about how they go on to the country and things they shouldn’t do or places they shouldn’t go. We don’t want to stop them, we just need to know where they want to make holes and which parts of country they want to take. I know this happens even when people are exploring not mining because we have seen it happen before. If there is a dangerous place we want to tell them to stay away from it, because we have a responsibility to as carers for these places.
30. We want to talk to them so they are not strangers. It is hard to trust people who don’t want to talk to us and are strangers. We just want to make sure they do the right thing and that we are all safe.
31. Protecting our heritage is very important to the Nanda people. We don’t want anything to happen to our country which harms our sites. If these sites are not approached in the right way or by the wrong people or damaged it doesn’t just destroy the land itself; it destroys our spirit and so our culture and beliefs with it. It is how we gradually lose our culture because piece by piece it is being taken away like this. If we work together we can protect our culture and the exploration people can still get on with business.
32. I have been involved in heritage protection on Nanda country for a long time and have gone on surveys because of my knowledge about our country and our heritage. I know what many companies do in exploration as I have seen the tracks and holes that they make. I have seen the marks it leaves on the country.
33. I visit the area in the tenement regularly to look after it and make sure the sites there have not been damaged or disturbed. Because of the significance of the places inside the Tenement Area I think that there is a good chance that areas or sites of particular significance to the traditional owners could be disturbed.
The evidence of William Mallard (Senior) is uncontested and I accept it. Mr Mallard says he is a member of both the Hutt River native title determination application and Hutt River Working Group and a descendant of the traditional owners for the area, including the tenement area. Although Mr Mallard is not one of the persons comprising the applicant and registered Hutt River native title claim, I accept he is a member of the claim group and also has the necessary authority to speak for country on behalf of Hutt River.
‘Statement of Keith Councillor
1. I am a Hutt River Working Group member and was nominated to this position by the Councillor Family, to speak on their behalf as a Naaguja man within the Hutt River claim. I was elected to the working group by the Hutt River Community at a Hutt River Community meeting.
2. I am a Naaguja man, because my father Harold Councillor was a Naaguja man. My mother was a Wajarri woman, but I followed my father.
3. I am recognised by my family as an elder for our traditional country, which includes the Tenement Area. According to traditional law and custom I can speak for country covered by the Hutt River claim, because I am a traditional owner and my father was a traditional owner for this area. I have been authorised to speak by my family. I got my country through my father’s side, from my father and uncles. What I know about country was passed down and told to me by my father and uncles.
4. I was nominated by the Hutt River working group as a person who could talk about why the Tenement Area and the sites in it are particularly significant to the traditional owners.
5. On 22 July 2010 I met with YMAC anthropologist Sanna Nalder and YMAC community liaison officer Patrick Cameron and we talked about my country which includes the Tenement Area.
6. I have been shown a map of exploration tenement E66/73 (“the Tenement Area”) by our anthropologist from Yamatji Marlpa Aboriginal Corporation (“YMAC”), a copy of which is annexed and marked “A1”.
7. I was born on 28 January 1935 in Yuga Well Camp which is 2 miles out of Northampton. Northampton is right next to the Tenement Area. My two aunties helped my mum give birth to me at that place. That place is very important to me and my family. I still go out there and check it out. I have told my sons about it and they know where it is. Phillip Councillor is trying to get that little piece of land back because it is very important to us. In aboriginal culture birthing places are very important to us.
8. I grew up in Northampton. My father showed me all around our traditional country. I walked all over the hills there, up and down Bowes River and Nokanena Creek. I used to work shooting kangaroos and farming in and around Northampton. My Dad cleared parts of country for the farmers around there making sure they didn’t disturb aboriginal sites.
9. My father told me about our stories on country. He had been through the law. He was a law boss.
10. I know the stories about country. Some stories I can’t tell because they are sacred stories. They are for our people. I pass those stories onto my sons for them to keep. I keep telling them, but there is still a lot more to tell.
11. I’ve seen the map of the Tenement Area where the company want to go. They should not touch this area at all. All the hills belong to the two old fells – Acaca and Ganbarn. These hills and places in the Tenement area are part of our dreaming story.
12. Acaca and Ganban look after the country. They are the old man spirits or devils. Acaca lives in the big hills, down to Munja Gabbe (water/river mouth). The area of these two devils is located within the Tenement Area.
13. Bowes River is a site where old Acaca lives. He looks after the country. Ganbarn looks after the country near Northampton and Acaca looks after the country closer to the coast and Bowes River mouth. You’ve got to ask them for kangaroo meat. You can ask for kangaroo from both of them. If you don’t ask, you can walk all day without even seeing one. You can just ask “I wanna get a nice fat kangaroo today” and you may get one. Only the traditional owners can ask for this, not anybody else who doesn’t belong to this country.
14. Some of our stories come through Elephant Hill. It is a sacred Hill. It is very important to our people. That’s all I can tell you. I’m not allowed to tell you anything more. It’s not allowed under our traditional law and culture. There could be trouble for me if I told other people. This site is particularly significant to us.
15. There are a lot of little fellas (Wudajis) around Elephan Hill and Table Hill. They belong there, they look after the country. If anything gets disturbed, those people who did it would get bad luck and the wudajis would come looking for them. It’s the same as with Tallering Peak when that was destroyed. The wudajis would get angry at the ones who mess around out there. Elephant Hill is a sacred hill. The wudajis and spirits belong there and so do all the animals: kangaroos, porcupines, reptiles, possums, pythons and all those.
16. All the hills are important to the animals as well. There are a lot of caves where kangaroos sleep on the hills within the Tenement Area. There are also paintings and other unregistered sites within the Tenement Area. The river and hills are the main things that are particularly significant to us and should never be disturbed. It is important to keep the hills as they are. The animals belong there. My father said it is very important to protect the country. He said that after he is gone, I should teach my children as well, because we all belong to this land.
17. Bowes River is the heart of our country. The old people use to travel up and down the river and camp by the big pools. There are many camping places and pools along that river. The water snake, the Bieemarra, made the river and pools when it was travelling underground up and down the waterways. The pools were created where he stuck his head out above the ground. The snake still lives there in the big pools today. That is why it is important to look after that country. Bowes River is one of the main rivers around here and very important to our people as part of our traditional law and culture. It is part of our dreaming story.
18. When we go out on country we let the spirits know that we are there. We sing out our name and that we are Naaguja people and that we belong to this country. We do the same when we go to any rock holes or pools. We’ve been brought up to do this as part of our law and culture. The same applies if you go swimming in the big pools. There is a snake in there, the Bieemarra. You’ve got to throw sand in there. Chuck sand in and tell your name and who you are.
19. We used to camp on country for all of the school holidays, three to four weeks at a time. I used to live along the Bowes River. When we were kids we used to fish with lines or make a net of creepers. There are plenty of creepers near Bowes. We would put the net across the river and fish would get stuck there. We’d catch mullet and bream.
20. I still go up there, out on country. I get bush tucker and check out the country to make sure it’s all ok. I take my family, sons and nephews with me and tell them about the country. We go as often as we can go and visit all the important places, including those in the Tenement Area.
21. Looking at the Tenement area, that’s all our country. They just put that pipeline through there. We had to be there with them to make sure that they didn’t mess around and went to the right places. We kept them away from sacred places. I can’t say what happens to them if they’d go to wrong places. They shouldn’t do it. The ones who are looking after the country would come looking for us traditional owners if people go to the wrong places. It’s all right if we look after it and when I’m gone my sons will take over looking after country.
22. We’ve got to make sure that people and strangers who come to our country don’t go and disturb things. If you go and pick something up, like a rock, you’d know about it. You’d start getting sick and your hand would burn. You’d have to take it back and leave it where you found it. Don’t take anything from the land.
23. A lot of our country is now farmland. We still go out and do heritage surveys to make sure that they don’t disturb anything and dig things up. It is important to protect what is left untouched of our country. There is a little big left. The main thing is to keep away from the big hills and rivers. I don’t know what would happen to the spirits and the animals if explorers and mining people went and dug around there.
24. The Tenement Area is my people’s country. It is our country all the way down to Greenough River. Other people should ask if they want to go out on country, but they don’t. That’s the way they are nowadays, they just go anyways. It’s not good enough for us. We have a responsibility to look after our country and make sure it’s not damaged or disturbed. There are things that happen to us if we don’t protect sites, so we want the people going on the Tenement Area to come and talk with us first.’
The evidence of Keith Councillor is uncontested and I accept it. Mr Councillor says he is a member of the Hutt River Working Group and is recognised by the Councillor Family as an elder for country, including the area of the tenement. Mr Councillor is one of the persons comprising the applicant and registered Hutt River native title claim and I accept he has the necessary authority to speak for country on behalf of Hutt River.
Preliminary Issue
As identified at [14], Government party documentation indicates a significant proportion of the tenement area is covered by numerous portions of private land. The Hutt River native title determination application specifically excludes land and waters affected by Category A past and intermediate period acts, previous exclusive possession acts and areas ‘in relation to which native title rights and interests have otherwise been extinguished.’ In short, freehold land, including roads, fall outside the claim area of the native title party. As a consequence, the majority of the area of the tenement cannot be claimed as native title, meaning that there is no future act with respect to those areas because the proposed activities will not affect native title (s 233).
There remains a small portion of less than two per cent overlapping the tenement that is covered by vacant crown land and other reserves which may be claimed in a native title application. I must now consider the substantive contentions and evidence relating to all three limbs of s 237 with respect to that small portion of the tenement in which native title is affected.
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 29(2) in relation to freehold 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 party in relation to the area of land concerned.
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 and social activities may be taken into account in assessing whether the grant of an exploration licence is likely to further affect those activities (Walley at 441-442 [12]). The evidence establishes that some exploration activity has occurred in the tenement and vicinity over the years although there is little evidence to suggest current activity in the mineral resources sector. The concerns of the native title party about previous activity are apparent from four previous objections lodged in relation to tenements applied for in the Hutt River claimed country. While it is possible, based on the six exploration licences granted in the last twenty years, that some interference with the native title party’s community or social activities may have occurred, there is no specific evidence to support a finding that there has been any appreciable effect on the native title party’s community or social activities from previous exploration and mineral activity.
The evidence of both witnesses establishes that the area of the tenement has traditionally been accessed by members of the native title party and used for hunting kangaroos, fishing and camping (WM Stt, para 9, KC Stt, para 19). Mr Mallard and Mr Councillor both say they still visit the area of the tenement to teach their young people, look after the area and collect bush tucker (WM Stt, para 9, KC Stt, para 20). Mr Councillor claims to visit the area of the tenement as often as he can with his family, sons and nephews to look after important places and teach them about the country.
The evidence generally lacks specificity as to access to the tenement area by other members of the native title claimant group and the activities undertaken by them. The evidence of Mr Mallard and Mr Councillor does not suggest the community and social activities of the native title party carried out in the area of the tenement are of an intensive nature. There are also no established communities within the tenement or in the general vicinity. Mr Mallard says he lives on the traditional country ‘not far’ from the tenement (WM Stt, para 9) and Mr Councillor says he was born in Yuga Well Camp outside of Northampton and grew up in Northampton, ‘right next to the Tenement Area’ (KC Stt, para 7). It might be reasonable to assume that some members of the native title party live in the town of Northampton, but there is no evidence of it.
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 as significant ground disturbing exploration will only occur at any one time over a small area. Government party documentation reveals that the area of the tenement and the extent to which the native title party overlaps is 211.29 square kilometres but the area of the Hutt River claim is approximately 5,892.98 square kilometres, much larger than the area of the tenement, 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 (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso (at [43]-[44])).
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. This is such a case.
Sites of Particular Significance (s 237(b))
The next issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or 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 kept under the AHA shows three closed and six open access sites within the tenement, but this does not mean there may not be other sites or areas of particular significance within the area or in the vicinity. Similarly, a registered site is not, necessarily, a site of particular significance for the purposes of s 237(b). 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 RSHA 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 (‘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.
The issue before me is limited to the existence of sites of particular significance within that small portion of tenement application which is not excluded from the native title application by operation of law (s 61A(2) and s 23B).
The evidence of Mr Mallard and Mr Councillor identifies Bowes River, which runs throughout the length of the tenement in a west to east direction, as ‘the heart of our country’ (KC Stt, para 17), a very significant and sacred site and ‘part of our dreaming and creation story’ (WM Stt, para 12). Both witnesses make reference to the dreaming story which outlines the creation of Bowes River and all waterways in the tenement by the water snake, known as the Bieemarra (WM Stt, para 13; KC Stt, para 17). Mr Councillor says that the old man spirit and devil, Acaca, who looks after the country, lives at Bowes River (paras 12-13). The witnesses talk of the practice of throwing sand into the waterways to let the snake know they are there (WM Stt, para 17; KC Stt, para 18). Mr Mallard says that removal or disturbance of the water ‘lessens the spiritual connection which hurts the people and causes illness on occasion’ (WM Stt, Para 17). Mr Mallard further expresses his concern that if the water is disturbed the snake will leave and the water will dry up. Bowes River is a registered site under the AHA which is classified as having mythological significance with open access. The other parties do not dispute the evidence of the native title party and I find that this site is of particular significance to the native title party in accordance with their traditions.
Tribunal mapping establishes that significant portions of Bowes River are vacant crown land and a further two reserves (for public recreation and foreshore protection) overlap two separate points along the river.
The evidence of the native title party refers to a number of other areas identified by the witnesses to be sites of particular significance to the native title party. In particular, the witnesses speak of Moondong, known as Elephant Hill as ‘a sacred hill’ which is ‘very important’ and ‘I’m not allowed to tell you anything more. It’s not allowed under our traditional law and culture’ or Mr Councillor says there could be trouble (KC Stt, para 14). DIA documentation supports the native title party evidence. The Register records Moondong as a closed mythological site with male access only. The witnesses note other sites or areas of particular significance in the area of the tenement including caves, hills, artefact scatters, paintings, burial and skeletal remains and dreaming sites. The DIA Register identifies painting sites, artefact scatters, skeletal material and burial sites and some mythological sites, which corroborates the evidence of the native title party. It is not necessary to go into further detail surrounding each of these sites given that majority of the underlying tenure is private land or other tenure that cannot be claimed as native title.
With regards to the portions of Bowes River that are vacant crown land, I must now consider whether the presumption of regularity, protective provisions of the AHA and any other protective arrangement that may be in place render it unlikely that there will be any interference with any areas or sites of significance found to exist. 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 sited therein). In Butcher Cherel (at [81]-[91]) I canvassed various determinations in which the protective provisions of the AHA were considered in light of the intentions of the grantee party, in particular matters, which I adopt for the purpose of this determination. In that matter the Tribunal found the AHA regime was likely to be effective because of the extensive evidence of the intentions of the grantee party including its intention to conduct a heritage survey. It is a matter of fact based on consideration of the evidence in each case whether the regulatory regime under the AHA will make interference with an area or site of particular significance unlikely, taking account of what the grantee party intends to do, including, in relation to the scope of exploration activities, site protection and consultation with the native title party. In this case the grantee party has not provided any evidence as to its exploration intentions.
In the absence of evidence to the contrary, I must make a determination based on the possibility that all the rights granted under the Mining Act 1978 (WA) to a holder of an exploration licence will be utilised in full. (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]). In particular there is no evidence from the grantee party as to the steps it intends to take to address the concerns of the native title party with respect to the areas of vacant crown land over Bowes River. There is nothing to suggest that the grantee party will not act lawfully and in accordance with the AHA, and I accept that it would.
I must consider the potential impact upon sites of significance that will be protected by the heritage protection mechanisms discussed above and the RSHA which the grantee party has entered into and invited the native title party to also. I am assisted in this inquiry by reference to my findings in Butcher Cherel at [81]-[91]. In that matter the Tribunal found that, although there were sites of particular significance in the area of the tenement, and even in the absence of a formal RSHA, the AHA protection was sufficient because of the extensive evidence of the intentions of the grantee parties to protect any such sites of significance and consult with the native title party before any ground disturbing work was undertaken. In this matter I have come to the conclusion that there is one site of particular significance (Bowes River) in which parts of that site fall within the area of the tenement where native title is applicable. I consider there are a number of other areas or sites of particular significance to the native title party within the tenement but, for reasons already discussed, they are not relevant to my inquiry.
It can sometimes be difficult to come to a clear determination as to the question of the likelihood of interference. In this matter I have come to the conclusion that in all the circumstances it is not likely that Bowes River will be interfered with if the tenement is granted. The reasons for this are as follows:
·The conditions the Government party proposes to place over the grant of the tenement including that the grantee party will need to seek prior written consent from the Minister responsible for the Mining Act 1978 (WA) before exploration activities can commence over the reserves and prior written approval required from the Department of Water if the grantee party intends to disturb any significant waterway (flowing or not), wetland or its fringing vegetation;
·The undertaking of the grantee party to enter into a RSHA with the native title party and the Government party placing the additional condition of allowing the native title party to request a RSHA be entered into within 90 days of the grant of the tenement;
·The general provisions of the AHA in Western Australia; and
·The fact that by virtue of these proceedings the grantee party is now alerted to the significance of Bowes River and other sites in the tenement to the native title party.
Major disturbance to land and waters (s 237(c))
The task of the Tribunal in relation to this limb of s 237 is to undertake an evaluative judgement on whether major disturbance to land and waters is likely to occur (in the sense of there being 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 (see Little v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]).
Mr Mallard states that mining companies that enter the area of the tenement must talk to members of the native title party first, so they can tell the grantee party about things they should not do or places they should not go (WM Stt, para 29). Mr Councillor expresses concern about strangers disturbing the land and the implications this would have for both the strangers and members of the native title party entrusted with protecting sites (KC Stt, paras 22-25). I accept that the presence of strangers on the tenement area may be upsetting to members of the native title party. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural concerns about unauthorised access, in terms of the native title party’s traditional laws and customs, alone, cannot form the basis of the finding of major disturbance. There must be some physical disturbance over and above that which it has been judged will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that could be pointed to will be the exploration activities conducted by the grantee party. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party in relation to their offence at the grantee party entering the land without speaking to them, is not sufficient to establish that major disturbance is likely to occur. I find that there is not likely to be major disturbance to land or waters in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence E66/73 to Duketon Consolidated Pty Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
1 September 2010
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