Gnulli/Western Australia/Thermal Energy Australia Pty Ltd
[2011] NNTTA 134
•13 July 2011
NATIONAL NATIVE TITLE TRIBUNAL
Gnulli/Western Australia/Thermal Energy Australia Pty Ltd, [2011] NNTTA 134 (13 July 2011)
Application No: WO10/414
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
Ronald Crowe & Ors on behal of Gnulli (WC97/28) (native title party)
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The State of Western Australia (Government party)
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Thermal Energy Australia Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Ms Helen Shurven
Place: Perth
Date: 13 July 2011
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 is not attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 109, 146, 151, 237
Mining Act 1978 (WA)
Aboriginal Heritage Act 1972 (WA)
Cases: Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Doris Ryder & others on behalf of Lamboo/Western Australia/Kallenia Mines Pty Ltd [2011] NNTTA 6
Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15
Hughes v State of Western Australia and Another (2003) 182 FLR 362; [2003] NNTTA 69
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd, [2011] NNTTA 118
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Solicitor for the
native title party: Ms Brooke Creemers, Yamatji Marlpa Aboriginal Corporation
Representative of the
native title party: Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representative of the
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Matthew Clohessy, Emerald Tenement Services
REASONS FOR DETERMINATION
On 18 November 2009, the Government party gave notice (‘s 29 notification’) under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E09/1642 (‘the proposed licence’) to Thermal Energy Australia Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act) (‘expedited procedure statement’).
The proposed licence comprises an area of 382.41 square kilometres located 120 kilometres south east of Coral Bay in the Shire of Carnarvon. It is completely within the Gnulli native title claim (WC97/28 - registered from 14 April 1997).
On 18 March 2010, Ronald Crowe and Others on behalf of Gnulli (‘the native title party’) made an expedited procedure objection application to the Tribunal in respect of the proposed licence.
On 12 April 2010, Hon C J Sumner was appointed as the Member for the purpose of conducting the inquiry. In accordance with standard practice the Tribunal gave directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. The directions allow a period from the s 29 closing date for the lodgement of objections (18 March 2010), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
Between 27 April and 15 September 2010 a number of conferences were held at which the grantee and native title parties advised they were attempting to negotiate an agreement and sought extensions to directions. By 27 July 2010 the Government party had lodged its contentions and evidence. At the adjourned status conference on 15 September 2010, the native title party advised it wished to proceed to an inquiry. On 17 January 2011, following further extensions to directions, the native title party lodged its contentions and evidence. The grantee party advised it would rely on the Government party’s submissions.
On 23 June 2011, I was appointed by Hon C J Sumner as the Member for the purpose of conducting the inquiry. All parties have agreed that the inquiry can be determined ‘on the papers’, that is, without holding a further hearing, and I am satisfied that the objection can be adequately determined as such (as per s 151(2) of the Act).
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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa/Bushwin’) at [10]-[16].
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 [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.
Evidence in relation to the proposed act
Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:
·Hill Springs Pastoral Lease 398/517 (44.8 per cent);
·Wandagee Pastoral Lease I080126 (29.2 per cent);
·Middalya Pastoral Lease 3114/656 (26 per cent);
·Historical Lease 394/834 (26.2 per cent);
The documentation indicates: 18 surrendered mineral claims held between 1978 and 1983 overlapping at no more than 0.3 per cent each; 25 surrendered coal mining leases held during 1982 overlapping at no more than 0.3 per cent each; four surrendered prospecting licences held between 1996-1998 overlapping at no more than 0.3 per cent each; one forfeited exploration licence held between 1995-1996 overlapping at 1.2 per cent; and two surrendered exploration licences held between 2006-2007 overlapping at 58.3 and 28.3 per cent. The documentation also indicates: two geothermal discrete area releases (overlapping at 77.5 and 22.5 per cent); one special prospecting authority (overlapping at 78.5 per cent); and no current exploration or mining tenements within the area of the proposed licence. A number of tracks, fence lines, yards, tanks and dams, an aircraft landing ground, runway and outcamp building are also noted.
Tribunal mapping shows no Aboriginal communities within or around the area of the proposed licence.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals 35 registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the proposed licence area: 31 are described as “Artefacts / Scatter”, three as “Artefacts / Scatter, Grinding patches / grooves” and one as “Quarry, Artefacts / Scatter”.
A Draft Tenement Endorsement and Conditions Extract included in the Government Party documentation indicates the grant of the proposed licence intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa/Bushwin at [11]) and five further conditions:
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·the grant of the Licence; or
·registration of a transfer introducing a new Licencee,
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.No interference with Geodetic Survey Station NMF 578 & K 56 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8.No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
9.Mining on a strip of land 20 metres wide with any pipeline as the centreline being confined to below a depth of 31 metres from the natural surface and no mining material being deposited upon such strip and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
The Draft Tenement Endorsement and Conditions Extract also notes the following two endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for a breach):
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.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.
Government contentions (at 5(e)) indicate that a condition (the RSHA condition) will be imposed in the following terms:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Gnulli People, the applicants in Federal Court application no. WAD 6161 of 1998 (WC97/28), such request being sent by pre-paid post to reach the Licensee's address, c/- Emerald Tenement Services, PO Box 383, North Perth WA 6906 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Gnulli People the Regional Standard Heritage Agreement endorsed by peak industry groups and the Yamatji Land and Sea Council.’
Evidence provided by the native title party
The contentions of the native title party include the unsigned statement of Mr Bren Roberts (undated) and the signed statement of Ms Maureen Dodd (dated 14 January 2011). The statement of Mr Bren Roberts is as follows:
‘1. I am a member of the Gnulli Native Title Claim Group.
2. I am a Baiyungu man, because my Grandmother was a Baiyungu woman. My Grandmother is my father’s mother. My father was born on Wandagee Station at Government Well.
3. All the country around the Tenement Area and along the Minilya River was where my grandmothers came from. All my grandmothers were sisters and they belonged to one man. He was an Exmouth Ginagudarra man that came from over near Cardibia.
4. I am recognised by my family as someone who can talk for our traditional country, which includes the Tenement Area. According to traditional law and custom I can speak for country covered by the Tenement Area, because I am a traditional owner and my grandmother 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. What I know about country was passed down and told to me by my father.
5. On 25 August 2010 I met with YMAC anthropologist Carmen Cummings and Gnulli claim lawyer Brooke Creemers and we talked about my country which includes the Tenement Area.
6. I have been shown a map of exploration tenement E09/1642 (“the Tenement Area”) by our anthropologist from Yamatji Marlpa Aboriginal Corporation (“YMAC”), a copy of which is annexed and marked “BR1”. I have been on the Tenement Area.
7. I grew up on and around Gnulli country. My father and uncles showed me all around our traditional country. I worked on most of the stations around the Tenement Area. I was working on Mynie Springs with my father’s father’s brother (my great uncle) up there only about three and a half years ago. I also used to work there with my uncles when I was a kid.
8. I go up to Wandagee, Hill Springs and Middalya regularly. I visit the Tenement Area every few months. I make it my business to do that. I take my oldest son every now and again. If I didn’t do that people would go through and damage my sites. I have a responsibility through my old people to do this and to look after that area. My old man told me that I have to do this. He used to look after it and it is now my responsibility to go out and look after our country which includes the Tenement Area.
9. I’ve seen the map of the Tenement Area where the company want to go. They should not touch this area at all because it is what we call sandhill country. This is a place where our old people used to walk and camp. There are camp sites and artefact scatters all around the Tenement Area. There are burials all along river and water ways around there, where the ground is soft.
10. The Minilya River, Barrabiddy Creek and the waterways within and close to the Tenement Area are part of our dreaming stories. These stories go all the way from the Gascoyne and along the river and out to sea.
11. My father, uncles and some of our old people told me about our stories on country.
12. I know the stories about country. Some stories and places in the Tenement Area I can’t talk about because they are secret to us. They are men’s business and I can’t talk to women about what is there or tell them anything about it. Only men can go there and I can only talk to men about this. I pass this knowledge onto my son for him to keep.
13. There is a big site in the Tenement Area. It is to the east, near the dam. It is particularly important and a significant site for us. I can’t tell much about it because it is the men’s business place. My uncle Peace Dodd knows the area. He was born on Middalya. He would tell you the same thing that we can only talk to men about it. We could take you women to Wandagee but you couldn’t come to the site. We would have to leave you behind somewhere with one of our women. Only the men could go and visit the site. This area has a secret name. It’s very scary. Only the fellas that come from there can go there. Fellas like myself, Peace Dodd, Raymond Junior and Snowball Junior. Only the traditional fellas can go there.
14. No women are allowed near that men’s site or some places around the tenement area. That’s all red sandhill country. There are water holes all in there. There are many burials around and in the Tenement Area. It is also a place where the men put all the artefacts. If a woman or a person who isn’t supposed to go there under our traditional law and custom does go there, the heat will come up through their boots. It’s galamaya ground, mabarn ground. You cross a boundary you shouldn’t and you will get burnt. It’s a place where the spirits are. They’ll get angry with you if you shouldn’t be there.
15. If people like the exploration company go there without the traditional owners you will see what happens to them. They will get sick. They won’t come out of that place. It isn’t safe. If people want to go into that area they need to contact us traditional owners and talk to us. They need to take us with them. People like me and Peace Dodd would need to go with them. They shouldn’t go there at all until they have talked to us about it. If they don’t they will get sick. Even other aboriginal people who shouldn’t go there and have gone have gotten sick. We told them, but they went there and now they are sick. We say they are sick because they didn’t listen to us. The spirits made them sick. The exploration company needs to make a plan before they go out there. Sites are not places to mess around with because they could kill you. I have seen these things in my dreams. If they don’t do this, they are not thinking about who they are sending there and who they are putting in their death bed.
16. On the west side of the Tenement Area is a dam and an open area. That’s a hunting area. You can get a good feed there. You drive them kangaroos or animals towards the Barrabiddy so you can catch them. I believe that Barrabiddy in my country means ‘thick country’; the animals can’t go through that.
17. The flat area near the river is where there is flake rock, used for making spears. The Barrabiddy has a fast flow, mainly all flood plains. There’s significant artefact scatters through there. The scatters follow the rivers and the waterways or pools. The old people used to leave the artefacts behind because they were walking. They would come back there and use them again. Burials might be on the Wandagee side (north east corner) of the Tenement Area. These would be there and heading down towards Coodargie Well. All these places that follow the rivers and creeks are where people need to be really careful because of the artefacts and burials. Many of our old people were buried around there many many years ago and now their remains are being uncovered.
18. Burial sites are important places under our traditional law and culture. They are where our old people are. These are resting places of our ancestors and if their spirits are disturbed they could make us sick. Burial places and skeletal remains should never be disturbed.
19. Our old people used to camp in and around the Tenement Area. We still camp there when we visit my sites. All through there is white quartz. I can’t say or tell you what we use that for; it is secret.
20. When I go to the Tenement Area and am sitting down there and camping I get a lot of feedback. I get this feeling inside because of the spirit there and when I lay down I dream about it.
21. My father and my grandfather they have done all that too. They make provision for people to be able to go through our country. We have to do this now too.
22. Under our traditional law and custom we are the providers, the caretakers for this country. It’s not something we choose. I’m the ngururra, the boss to look after this country. I was chosen by my old people. I have to take care of the Tenement Area.
23. My people we know that country. The Fennells, the Dodds and the Chubbies. We all belong to the country. Our grandmothers come from there and we have to look after that country.
24. The Tenement Area is on Wandagee, which is where we are all connected to. It is the place where all our grandmothers came from. This is one of the reasons the Tenement Area is so important to us. It is very special to our people as part of our traditional law and culture.
25. Looking at the Tenement Area on the map and walking through the Tenement Area on the land, that’s all our country. They can’t just go there without coming and talking to us about the right way to go on that country. We need to be there with them to tell them where they can go and to make sure they stay away from sacred places.
26. The Tenement Area is my people’s country and I am ngururra for that place. If the exploration company want to go there they should speak to us about it. I have a responsibility to make sure our country doesn’t get disturbed. People will get sick or might die if it’s not done the right way. I want people who are going on the Tenement Area to come and talk with us first.’
The statement of Ms Maureen Dodd is as follows:
‘I, Maureen Patricia Dodd, of 12 Acacia Way, Carnarvon in the State of Western Australia, Pensioner, hereby swear and say on oath as follows:
1. I am a member of the Gnulli Working Group and was elected to this position by the Gnulli community.
2. I was born on Middalya Station and I am a Yinggarda woman, because my father was an Yinggarda man. My mother was a Baiyungu woman, but I followed my father.
3. According to Yinggarda law and custom my family can speak for the area around Middalya and Wandagee, because we are descendants of the traditional owners of that country. I am able to talk about this area because it is both my mother and father’s country, and I have been authorised to speak by members of my family.
4. I have been shown a map of exploration tenements E09/1642 (“the Tenement”) by my lawyer from Yamatji Marlpa Aboriginal Corporation (“YMAC”), a copy of which is annexed and marked “MD1”. I have walked on the Tenement area.
5. On 16 December 2010, I met with Gnulli claim lawyer Brooke Creemers and we talked about Middalya and Wandagee which includes the land covered by the Tenement.
6. The Tenement is located on Middalya and Wandagee stations, which is Baiyungu and Yinggarda country. Our laws and customs say that this land belongs to us because we are descendants of the traditional owners of this country and know this country. This means other people have to ask permission from my family before they go there. This is because we are the people that belong to that country and are responsible for looking after it.
7. I grew up on Middalya until I was about eight years old. I went back there every holiday after I got sent to the mission. My Dad told me it was his country. He was born there too. My Dad showed me all around that area and gave me the right to speak for it. He would show us where we could and couldn’t go and teach me about it.
8. My family and I go out to Middalya and visit whenever we can, because it is a very significant area to our people with a lot of important sites. We make time to go there, but transport sometimes makes it hard, so whoever can get there goes around and checks it out. They then report back to the rest of us about how the country and sites are.
9. When I was young we used to visit the Tenement area. There is a dam on the Tenement area that has gumtrees around it. We used to put fish from another dam in it. We then used to go back there and fish.
10. There is bush fruit around that area too. When we go out we still go and see if there is fruit around. You can get quandongs there. The seed is smooth. The ones that are in the tenement area are the smaller kind. They are like blueberries. I use [sic] to watch the old people roast them. We can make jam out of them too and we do this sometimes [sic]
11. Middalya was a place where they used to have corroborees and so people would camp around and along the river and creek. When I was little we used to have to sit around and be quiet during this time.
12. There is a place just along the tenement area near Wandagee Hill where the old people used to camp. They would camp along the Barribiddy creek which runs through the tenement area. There would be burials around there because of the camping areas. When you go to these places you have to call out and tell the old people, the guardians, that you are there and who you are.
13. There is a place in and around the tenement area that is a men’s business site. We know this because the men don’t talk to us about it and we don’t ask about it. It was one of those places my dad told me not to go near.
14. If I went to men’s sites, the spirits would follow me and I would get sick. They will take my spirit. Yinggarda traditional law and custom tells me that I must never go to men’s business sites.
15. One of our dreaming stories is connected to the area covered by the tenement. I recently told this dreaming story when another company wanted to disturb the Kennedy Range. That dreaming is the same for this tenement, because Barribiddy Creek runs through it. Wanamungurah (the snake) which created the creek and creates water for the Barribiddy is the same snake as the one for the Kennedy Range. Before creation there were no stories. It was the Warnamungurah [sic] and the other beings that came and created that country. They created the country including and around the tenement. The Barribidy [sic] Creek is the mark Wanamungurah left there. He is still there today. The country is all connected and that is why it is important not to damage any area that is part of the dreaming story.
16. The Kennedy Range is a very important story in our dreaming. There are three known stories of the Kennedy Range but only one of them can be told by the descendants of the Traditional Owners. The Kennedy Range is connected through these stories to Mt Augustus in the East and Cape Range, Exmouth in the West,. [sic] The story is that, a long time ago a big snake (Wanamungurah) came out of the Gascoyne River. He travelled north with the Kangaroo (Bigurrda) (two natural enemies) creating the Kennedy Range. Along the way the snake swallowed the Kangaroo and then he came to a place where he bought [sic] it up (regurgitated) the Kangaroo. Where he bought [sic] it up it became a fresh water spring. Today the name of where that spring is called Birdrong mill on Middalya Station. The snake then travelled on his own down the Barrabiddy through Lake McLeod then turned north heading to the Cape Range / Exmouth. The old people told us the snake’s head is in the ocean off Vlamingh Head, Exmouth and the tail is in the Gascoyne River where it came out of. This is how everything is connected in our mythology. The Barrabiddy Creek is where the snake travels and creates water for us which we use for drinking and camping when we visit the site. This is why if someone disturbs or damages a site which is connected to the story, the significance is lost and there is no story to tell. We would then get sick because it is like taking away our spirits and we have nothing in us. This is why we have to protect these areas. If people damage our country they hurt us and our culture.
17. We have a responsibility to the whole of our country, including the area in the Tenement. We have to look after country and look after special places. Our ancestors looked after it and I know I have done so also and am trying to do so now. This is not something that we choose to do. It is a law we have to follow and we don’t have any choice about it. We got told by our old people that we have to look after the country.
18. If we don’t look after our country, something might happen to us. We also have a responsibility to look after other people who are strangers to our country. If a mining company doesn’t look after this place something might happen to them. We don’t know what will happen but they might lose their life. They need to talk to the men about the men’s business site to make sure they don’t go there.
19. White explorers and mining people should come and talk to us because they don’t have a right to touch and talk for that country. We still own this country. Our law doesn’t change. We want them to understand and respect that.
20. People don’t realise that Aboriginal cultural law is very powerful and is also very dangerous. We believe people have lost their lives because they never listen.
21. It is important to protect areas such as dreaming lines and men’s business sites because people shouldn’t be going there. As the custodians of the country including the tenement area It [sic] is our responsibility to protect people from places they should not go.
22. I would say to the explorers that you have to come and talk to us because if you disturb where the snake travels, then you’ll get sick. If you go there without us and the right people and we’ve told you not to, then it’s your fault if something happens.’
In relation to accepting the statements, the Tribunal is not bound by the rules of evidence (s 109(3) of the Act). Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15 (at [18]-[28]) summarises the Tribunal’s practice with respect to statements not in affidavit form. In that matter, the Tribunal held that it is self evident that evidence relating to the matters in s 237 are central to the making of a determination, and that the best evidence relating to the matters will generally come from the native title holders. Though it is preferable for this evidence to be provided in affidavit form, the Tribunal has shown flexibility in accepting unsworn witness statements, particularly where there is no objection from the other parties and the evidence is uncontested. In the present matter there has been no objection to the statements in their current form and a letter from Ms Creemers, the YMAC claim lawyer, outlines the difficulties in obtaining relevant signatures on such documents. Considering that matrix of information, I am satisfied that Ms Dodd’s and Mr Robert’s statements are admissible material, accept these, and will deal with these and all the documents and evidence provided by other parties for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Hughes v State of Western Australia and Another (2003) 182 FLR 362; [2003] NNTTA 69).
Ms Dodd says she is a member of the Gnulli community and Mr Roberts states he is a member of the Gnulli native title claim group. I accept they have the necessary authority to speak for country on behalf of the native title party.
Community or social activities (s 237(a))
While the native title party refer generally to s 237 of the Act in their contentions, and make minor reference to s 237(a), they make no specific or clearly delineated arguments in relation to s 237(a) of the Act and provide little evidence of current community or social activities. Ms Dodd refers to past activities, stating: “When I was young we used to visit the Tenement Area” (para 9) and makes general statements that “My family and I go out to Middalya whenever we can” (para 7) and “When we go out we still go and see if there is fruit around” (para 10). Mr Roberts states: “Our old people used to camp in and around the Tenement Area. We still camp there when we visit my sites” (para 19); that he and his eldest son “visit the Tenement Area every few months” (para 8); and that the west side of the proposed licence is a good hunting area for kangaroo (para 16).
Government party documentation notes some previous exploration activity has occurred over the area of the proposed licence and that it is overlapped by pastoral leases. While there is no specific evidence as to the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that the exploration activity, and ongoing pastoral activities will already to some extent have interfered with the native title party’s enjoyment of the area.
Given the general nature of the evidence provided by the native title party regarding its current community and social activities on the proposed licence, I cannot find the grant of the proposed licence is likely to directly interfere with the carrying on of the community or social activities of the native title party.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. The Register kept under the Aboriginal Heritage Act 1972 (‘AHA’) shows 35 archaeological sites but this does not mean there may not be other sites or areas of particular significance to the native title party over that area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The 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 any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (at [81]-[91])). The Tribunal must consider, based on the facts of each particular case and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In making the predictive assessment for s 237(b) of the Act, the Tribunal can have regard to the grantee party’s attitude to the Regional Standard Heritage Agreement (‘RSHA’) (Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 at 386-388, [30]-[34] (‘Champion’)).
As a condition for s 29 notification with the expedited procedure statement, the grantee party signed a RSHA which contains processes for the protection of sites, including the conduct of a heritage survey. The grantee party’s offer to enter into the RSHA is indicative of its awareness of its legal obligations under the AHA, and there is no evidence that the grantee party will not comply with its legal obligations. Furthermore, the Government party states (at 5e) it will impose a RSHA condition on the grant. Even though the native title party may not accept the RSHA as an appropriate mechanism for site protection, they have the option to enter into it with the grantee party. The question then is whether this is sufficient to ensure there is not likely to be a real risk of interference with any sites of particular significance to the native title party.
The evidence of Mr Roberts notes the following sites of significance within the proposed licence:
·Camp sites and artefact scatters “all around the Tenement Area” (paras 9 and 17);
·Burials “all along river and water ways” (paras 9 and 17);
·Secret “men’s business” places (para 12) including “a big site ... to the east, near the dam” (para 13) which are dangerous to women and other persons (paras 14-15), some of which can be safe if appointed members of the native title party “make provision for people to be able to go” (para 21);
·A “flat area near the river” containing “flake rock, used for making spears” (para 17); and
·White quartz “all through there” used for secret purposes (para 19).
Ms Dodd refers to Barribiddy Creek (para 16) and the importance of the Kennedy Range (at para 15 and 16). The native title party contentions refer to a previous enquiry (WO09/716-717) where the Tribunal held that proposed exploration tenements would impact on the Kennedy Range, and that the Range as a whole was a site of particular significance for the purposes of s 237(b) of the Act. However, the Kennedy Range is not within the proposed licence area, and in fact is some distance away from the proposed licence area. I appreciate the Range and sites on the proposed licence may have connections (for example, through Wanamungurah, the snake who created the country in both areas), but I do not consider WO09/716-717 to be relevant beyond that, for the purposes of this determination.
The grantee party relies on the evidence and information provided by the Government party. In Doris Ryder & others on behalf of Lamboo/Western Australia/Kallenia Mines Pty Ltd [2011] NNTTA 6, the native title party suggested there were a number of sites on the proposed licence and these sites were not on the DIA register. The grantee party provided statements in their contentions as to its willingness to avoid those sites, and to act in accordance with the AHA. In that matter, it was determined that there was not likely to be a real risk of interference with sites of particular significance. In the present matter, apart from the Government party contentions and the signed RSHA, there is nothing before the Tribunal to identify the extent of the grantee party’s future activities on the proposed licence area.
I can make a positive finding that there are 35 DIA registered sites on the proposed licence. There are also a number of registered sites along and just outside the northern boundary of the proposed licence. The register does not purport to be a record of all Aboriginal sites in Western Australia, and the statements of Mr Roberts and Ms Dodd confirm that there are a number of sites of particular significance within the proposed licence. Some of these appear to be those which are already on the register (for example, artefact scatters and quarry sites), but some of them do not appear to be (for example, burial sites and the secret “men’s business” place). Native title party contentions (for example, at para 45) also indicate that these sites have not been registered with DIA. Specifically, Mr Roberts states there is a “men’s business” “big site” within the proposed licence, “to the east, near the dam”. While there is no more precise location provided than this, in the absence of any evidence to the contrary, I am prepared to accept this site is likely to be in the eastern portion of the proposed licence, near one of the three or so dams in that area. I also accept that this site is of particular significance to the native title party. I note that Mr Roberts states he has worked on most of the stations around the proposed licence and his father and grandmothers came from areas within close proximity to the proposed licence (for example, Wandagee Station and Minilya River). Ms Dodd also confirms the existence of such a site within the proposed licence area.
In considering whether the RSHA condition is sufficient to support a finding that sites of particular significance are unlikely to be disturbed, I refer to Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd, [2011] NNTTA 118 (28 June 2011) at [34] and [40] (‘Tarlpa/Allarrow’). In that matter, the Tribunal noted that the RSHA only requires heritage surveys to be conducted prior to ground disturbing activity. It found that given the nature of the sites of particular significance identified, any access to the tenement by the grantee party without the guidance of the native title party was likely to lead to interference with those sites.
Taking all of these factors into account, I am of the opinion that this is a case where the normal negotiations mandated by the Act should take place to avoid the likelihood of interference with sites identified by Mr Roberts and Ms Dodd. The number and nature of the sites, which may or may not be on the public record, means there is a real risk of interference with them, despite the protective provisions of the AHA and other regulatory mechanisms.
Major disturbance to land and waters (s 237(c))
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion at [74]-[79] and the cases cited therein).
In relation to the question of the general impact of mining or exploration, there is insufficient evidence for me to conclude any negative inference against the grantee party. Further, there is insufficient evidence before me in relation to a negative impact on land or water on or near the proposed licence area. There has not been sufficient nexus provided or evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113, nor in my view is such disturbance likely to be considered major as required by the general community as outlined in Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18.
The evidence in this matter does not establish that the grant of the proposed licence will result in a major disturbance to land or create rights which will do so.
Determination
The determination of the Tribunal is that the grant of exploration licence E09/1642 to Thermal Energy Australia Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
13 July 2011
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