Gooniyandi Aboriginal Corporation v Inventum Resources Pty Ltd and Another
[2018] NNTTA 41
•13 July 2018
NATIONAL NATIVE TITLE TRIBUNAL
Gooniyandi Aboriginal Corporation v Inventum Resources Pty Ltd and Another [2018] NNTTA 41 (13 July 2018)
Application No: | WO2017/0691 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Gooniyandi Aboriginal Corporation (WCD2013/003)
(native title party)
- and -
Inventum Resources Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms Helen Shurven |
Place: | Perth |
Date: | 13 July 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 29, 32, 151, 237 Mining Act 1978 (WA) s 66 |
Cases: | Bardi and Jawi Niimidiman Aboriginal Corporation on behalf of its members/Western Australia/Kimberley Quarry Pty Ltd [2009] NNTTA 153 (‘Bardi and Jawi v Kimberley Quarry’) Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) 142 ALR 21 (‘Cheinmora v Striker Resources’) Doris Ryder & Others on behalf of Lamboo People/Western Australia/Alan Neville Brosnan and Phyllis Marie Brosnan [2010] NNTTA 15 (‘Lamboo v Brosnan’) FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (‘FMG v Yindjibarndi’) Josephine Forrest on behalf of Yi-Martuwarra Ngurrara; Butcher Wise on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (‘Forrest v Brockman Exploration’) Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa v Bushwin’) Sharpe v State of Western Australia [2013] FCA 599 (‘Sharpe v Western Australia’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory [2002] NNTTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Tjurabalan Native Title Lands Aboriginal Corporation v Inventum Resources Pty Ltd and Another [2018] NNTTA 6 (Tjurabalan v Inventum Resources) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representative | Angela Booth, Kimberley Land Council (to 7 May 2018) |
| Representative | Ashley Bennet, Inventum Resources Pty Ltd |
Representatives Government party: | Sarah Power, State Solicitor’s Office |
REASONS FOR DETERMINATION
This is a decision under s 32 of the Native Title Act 1993 (Cth) about whether the expedited procedure applies to the State of Western Australia’s proposed grant of exploration licence E80/5073 to Inventum Resources Pty Ltd (Inventum). In this decision, all legislative references are to the Native Title Act 1993 (Cth) unless otherwise stated. The State considers the grant is an act attracting the expedited procedure and they stated so in their public notice of the proposed grant (ss 29(7), 32(1)). In doing so, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237(a)-(c). That is, the State asserts the grant is not likely to:
(a)interfere directly with community or social activities carried on by members of native title claims or determined areas;
(b)interfere with areas or sites of particular significance in accordance with the traditions of the native title claimants or holders; or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The President of the National Native Title Tribunal at that time, Raelene Webb QC, appointed me to conduct an inquiry and to determine whether the expedited procedure applies.
The licence comprises 58.45 square kilometres, situated 113 kilometres west of Halls Creek. As determined in Sharpe v Western Australia, the Gooniyandi People hold exclusive native title over 91.24 percent of the licence, non-exclusive native title over 7.79 percent, and native title is extinguished over 0.97 percent. The Gooniyandi Aboriginal Corporation (Gooniyandi) hold the Gooniyandi People’s native title in trust on their behalf. They exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, and they argue the expedited procedure should not apply because interference or disturbance in terms of one or more of the criteria in s 237 is likely.
If I find the expedited procedure applies, the State can grant the licence (s 32(4)). If I find it does not apply, Inventum and the State must negotiate in good faith with a view to reaching an agreement with Gooniyandi about the grant (s 32(5)).
The decision
As noted at [1], I must base my decision on the s 237 criteria. Gooniyandi do not provide contentions or evidence for s 237(c). As stated in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. Therefore, on the limited evidence provided, I find the grant of the licence is not likely to involve major disturbance to the land or waters concerned. On the material before me, I focus my inquiry on the questions listed at (a) and (b) above.
Preliminary evidentiary matters
All parties provided submissions in this matter. Gooniyandi attached the affidavit of Mervyn Street (Mr Street’s Affidavit) and the joint affidavit of Terry Dawson, Lindsay Dawson, Wayne Wallaby and Mervy Dawson (Joint Affidavit). Each of the deponents states they are a determined native title holder. Further, in the Joint Affidavit, the deponents state ‘Senior man, Matt Dawson who knows the Tenement Area and Senior Traditional Owner, David Street were present when we deposed the information contained in this affidavit. Together we can speak for the Tenement Area’ (at (5)). The Tribunal is not bound by technicalities, legal forms or rules of evidence and may take account of cultural and customary concerns of Aboriginal Peoples and Torres Strait Islanders (s 109). As such, I accept the joint affidavit is collective evidence from the deponents and from Matt Dawson and David Street as well. I accept that each of the deponents in both affidavits and Mr Dawson and Mr Street have authority to speak for the licence area on behalf of the Gooniyandi People.
Further, the Tribunal’s view is that the best evidence comes from native title holders themselves (for example, see Lamboo v Brosnan [16]). I note both affidavits are consistent in many respects. Collectively, the affidavits comprise corroborated evidence of seven Gooniyandi native title holders. As such, I give the material a great deal of weight.
In relation to the Gooniyandi contentions in reply, the State raised a concern that the reply introduced new issues. I held a listing hearing on 4 May 2018 so parties could ventilate this concern, and so that each party had the opportunity to present their case and exchange information fully and finally (s 142). The listing hearing gave parties the opportunity to clarify the extent to which they had a common understanding of the issues, and the areas and sites which were said to be of particular significance to Gooniyandi. At the end of the hearing, all parties confirmed they were content for me to make a decision on the documents before me, and I dispensed with the need for parties to file a Statement of Agreed Facts, as that had been achieved during the listing hearing. I consider it appropriate to make a decision on the papers (s 151(2)).
Gooniyandi change of representation
The Kimberley Land Council (KLC) represented Gooniyandi during the above proceedings. However, on 15 May 2018, Gooniyandi forwarded the Tribunal a letter addressed to the KLC dated 7 May 2018. The letter states ‘the Gooniyandi Aboriginal Corporation (GAC) formally withdraws any authority for KLC and KRED to represent … in future acts/notices, heritage matters, surveys and heritage functions.’ I do not consider this letter affects the above proceedings: there is no evidence indicating that, prior to 7 May 2018, KLC were not authorised to act for Gooniyandi. On 29 May 2018 Tribunal staff advised Gooniyandi of all their matters before the Tribunal (including this matter). They did not raise any concerns.
The Gooniyandi People’s native title rights and interests
As well as the native title rights and interests held over the licence area (as noted at [3]), the State’s quick appraisal documentation, generated from their Tengraph mapping system, shows Indigenous held Louisa Downs pastoral lease N049737 overlaps at 98.8 percent.
Where the Gooniyandi People hold exclusive native title they have the right to possess, occupy, use and enjoy the land and waters to the exclusion of all others, except in relation to flowing and underground waters. For these waters, they have the right to use and enjoy (including the right to hunt on, fish from, take, use, share and exchange for personal, domestic or non-commercial communal needs).
Where the Gooniyandi People hold non-exclusive native title they have:
(a)the right to access and move freely;
(b)the right to live, enter and remain, to camp and erect shelters and other structures for that purpose;
(c)the right to: hunt, gather, fish, take water and its resources, and take, share or exchange natural resources (including soil, sand, clay, gravel, ochre, timber, resin and stone) for personal, domestic or non-commercial communal needs/purposes; take flora and fauna; light fires but not for clearance of vegetation; engage in cultural activities; conduct ceremonies, burials, burial rites and meetings; and visit maintain and protect places and sites of importance.
(a) Is the grant of the licence likely to interfere directly with the Gooniyandi People’s community or social activities?
To find s 237(a) interference is likely, there must be a direct and substantial interference with social or community activities (Yindjibarndi Aboriginal Corporation v FMG Pilbara [16]). The Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities to determine whether the activities can coexist without direct or substantial interference (Rosas v Northern Territory [71]).
What community or social activities do the Gooniyandi People undertake on the licence?
As outlined in more detail below, Gooniyandi say the licence:
(a)is a main fishing area (for Barramundi, Brim, Catfish and Perch)
(b)is a main hunting area (for Goanna, Kangaroo, Turkey, Emu and Wild Pig)
(c)is an important area for taking children to hunt, fish, gather bush food and show culture
(d)has abundant bush food on the banks of the river which Gooniyandi people gather (including bush gum, bush onion, bush banana and bush plum)
(e)is an area for swimming
(f)contains and is related to an important songline which follows Margaret River, and where Gooniyandi people camp
The evidence in relation to gathering bush food and swimming is not detailed. However, the activities of fishing, hunting, intergenerational teaching of culture, and camping are more detailed, and provide the focus of my decision in relation to s 237(a).
Gooniyandi’s contentions are brief and focus on the affidavit evidence. This is consistent with the Tribunal’s view that the best evidence for native title interests comes from native title holders themselves (for example, Lamboo v Brosnan [16]). They contend Gooniyandi People live in the nearby communities of Moongardie, Yiyili and Pullout Springs and visit the licence regularly (Gooniyandi contentions at (8)). I note the community of Moongardie is approximately 36 kilometres south west of the licence, with Yiyili and Pullout Springs being approximately 28 kilometres south east of the licence.
Gooniyandi contend that the grant of the licence will ‘interfere directly with the carrying on of hunting, camping, intergenerational teaching and resource gathering’. They argue the communities are ‘very close’ to the licence: it ‘takes about an hour steady in a car … quicker if the road is [freshly] graded’ and so ‘more old people can get to this place than other places and people who don’t have good vehicles can also get here’ (Mr Street’s Affidavit (11); Joint Affidavit (14), (17)). As such they say it is ‘the main fishing and hunting area for us Gooniyandi mob that live at Yiyili community. It is a very special hunting place for Gooniyandi people.’ It is ‘a main area for us’ (Joint Affidavit (6), (17)). In ‘the wet season it [the licence area] is also the easiest place to go for a good fish and hunt because you don’t have to go and pass over that bigger part of the Margaret River further north’ (Joint Affidavit (17)). Therefore, it ‘is an area that you can go at any time of the year’ (Mr Street’s Affidavit (7)). They say ‘we have been living out here all our lives and hunting in that area all our lives’ and ‘head out to the Tenement Area regularly’ (Joint Affidavit (7)-(8)). I note Margaret River runs through a substantial part of the licence, and is adjacent to an area called Me No Savvy Yard. I accept the River contains a place called Me No Savvy Gorge. Mr Street identifies an area containing Me No Savvy Yard and Me No Savvy Gorge with a blue circle on a map annexed to his affidavit (Mr Street’s Affidavit at (5). It is within the licence.
Further, Gooniyandi say the area of the licence ‘is one of the only places in our country where the water is permanent all year round. It is our main water… [It’s] what makes this place rich and is why we always come up here’ (Mr Street’s Affidavit (9)-(12)). The State’s quick appraisal documentation shows there are a number of water sources on the licence. These include 18 major watercourses (two of which are Margaret River and Gliddon River) and 54 minor watercourses. These are described in the State’s quick appraisal document as ‘non-perennial’ which suggests that at least in part of the year there is no flow. The quick appraisal also shows 14 springs, soaks, rockholes or waterholes. I am prepared to conclude and accept there is an area of permanent water on the licence, based on Mr Street’s evidence, particularly given that is also supported by the joint affidavit. For example, at (10) the joint affidavit details there ‘is permanent water in the Tenement Area at Me No Savvy Gorge.’
Gooniyandi contend this area of permanent water ‘stands out from the rest of the area as a whole by providing a food source for Gooniyandi People accessing the area’ (Gooniyandi reply (5)-(7)). Mr Street identifies the permanent water on the map attached to his affidavit: ‘where the Margaret River intersects with the words Me No Savvy Yard’ (Mr Street’s Affidavit (9)). This is within the licence area. The permanent water is said to be used so extensively by Gooniyandi People that ‘it gets fished out a bit’ so they must ‘wait to head out in the wet because you won’t catch much later in the year until the rain comes and fills her up with a bit more fish’ (Joint Affidavit (10)). As such they ‘head out there to hunt and fish mainly in the wet season’ and ‘will head out there very often until it gets a bit dry out there’:
When it’s green and there’s been a big rain, we’ll go it there every weekend and take the kids out there… to show them how to hunt, fish and gather other bush food, we show them their culture [Joint Affidavit (9)].
There are ‘lots of school trips that head out there. The local teacher aides will take the kids for excursions.’ The licence area is ‘one of the main places they always go’:
Francis Dawson, our sister, she works there at the school and takes them out, she speaks Gooniyandi … Those kids went out on a trip a couple of weeks back, … they always go out for a big trip up there just before school finishes and school finished up last week [Joint Affidavit (16)].
The above is corroborated by Mr Street:
Kids from the Yiyili school will head out there to go for a fish or hunt and they learn about that area at their school… The kids from the school go out on the Tenement Area every fortnight or so to learn about bush tucker, fishing and hunting. They rest up near Me No Savvy Yard and go fishing at the river there. I have been out there with them [Mr Street’s Affidavit (14)-(15)].
Besides the permanent water around the Me No Savvy Yard area, Mr Street says Gooniyandi People use the area ‘also around the place called Dead Horse Crossing, which is on that part of Dead Horse Creek which runs through the south of the Tenement Area’ for hunting. He says it ‘is an important camping place, it is right along the song line which comes down from Jarlmadangah’ (Mr Street’s Affidavit (8)). There is also a ‘little creek that comes off the Margaret River in the Tenement Area, that is a really good place, you walk around that all year round and there’ll be animals drinking in it that you can get’ (Mr Street’s Affidavit (10)).
Hunting includes ‘goanna, kangaroo, turkey, emu and there’s wild pig out there as well’ and fishing is usually for ‘Barramundi, brim, catfish and perch, we call perch bunda’. There is ‘plenty of bush food out there by the banks of the river’ including bush gum, bush banana, bush onion (junda) and bush plum. ‘When we catch and kill the animals we will just set up fire on the Tenement Area and cook them up out there where we find them.’ Given its proximity to communities, ‘[w]e usually do day runs to hunt but sometimes we will camp out there as well’ (Joint Affidavit (11)-(13), (15); Mr Street’s Affidavit (10), (12)).
Most importantly, the deponents make numerous references to Gooniyandi People accessing the area – ‘the Gooniyandi mob at Yiyili’ including the deponents ‘have been heading out to the Tenement Area since we were children, since we lived at Yiyili community’ (Joint Affidavit (6)-(7)). They say ‘[w]e have been living out here all our lives and hunting in that area all our lives’ – it is ‘a hunting ground that people are always accessing and have always been accessing’ (Joint Affidavit (7); Mr Street’s Affidavit (13)). They say a ‘lot of people will be heading out when it is green, lots will be camping as well’ (Joint Affidavit (15)). Despite the increase in numbers during this time, they say ‘[p]eople are going out to the Tenement Area every weekend, there are probably people going out there every night to do some hunting or camping there over night’ (Mr Street’s Affidavit (14)).
The deponents express concern about exploration activities in ‘one of our most important hunting and fishing areas’. They say ‘nobody wants to be in the way of machinery or be surprised by any kartiya digging around out there looking for minerals’ so ‘[Gooniyandi] People would stop going there’ (Joint Affidavit (22)). ‘People are always coming up here…they’d get a shock when they see them and would stop using the area like they always have’ (Mr Street’s Affidavit (17)).
What activities do Inventum intend to undertake on the licence?
Inventum outline they are ‘a start up, exploration company, founded in 2015’ by two geologists and they have ‘no assets’. They submit they ‘understand and respect the need for heritage agreements’ and ‘have a strong relationship with the Indigenous community’ where they work. They suggest a Regional Standard Heritage Agreement (RSHA) is their preference for dealing with heritage over the licence. I note Inventum made similar contentions in Tjurabalan v Inventum Resources. The State proposes to impose a grant condition requiring Inventum to enter into an RSHA if Gooniyandi make such a request within thirty days of grant.
Inventum also outline their ‘understanding is that this ground has gone through historic heritage surveys in recent times’. The State’s quick appraisal document shows a Department of Aboriginal Affairs Survey ID 106254 over 20.5 percent of the licence. However, no party has provided any further information about this survey, or any other heritage surveys on the licence. I will not address this contention further, save to note Inventum states no drilling has been undertaken on the area since 1969.
Inventum state their exploration will first comprise ‘desktop studies’ and ‘non-invasive/low impact geological mapping’ followed by a ‘geochemical survey over the ground’ to delineate and confine target areas. They indicate their ‘first pass exploration’ on the licence ‘will be carried out on foot with 4wd vehicles staying within existing tracks …, no mechanical equipment will be used…and there will be no issues with dust and no water will be disturbed’. They state they ‘will notify the Gooniyandi people in writing prior to entering the licence area and commencing any non-ground disturbing activities’. They submit that further exploration work ‘i.e. machinery work, track clearing or drilling would require a thorough heritage survey, which a [R]SHA will enforce’. They also state they hope ‘strong, early stage results will enable Inventum Resources to fund further work through private financing or by partnering with an established Australian mining company’. On this basis, I conclude Inventum intend to exercise the full suite of rights available to them upon the grant of the licence under s 66 of the Mining Act 1978 (WA).
Is the grant of the licence likely to interfere directly with the Gooniyandi People’s community or social activities?
As noted above, the Tribunal must balance a native title party’s evidence of social or community activities against a grantee party’s proposed exploration activities, and may conclude the activities can coexist without direct or substantial interference (Rosas v Northern Territory [71]). This balancing takes into account ‘the existence of mining or pastoral activities that did, or currently do, affect the native title holders’ community or social activities’ (Tarlpa v Bushwin [121]). Proximity and ease of access from Aboriginal communities can suggest frequent and intensive use of the area (Forrest v Brockman Exploration [43]). In combination, there can be a determination that interference is likely if an area has no previous mining, exploration or pastoral activity (or is the subject of an indigenous owned pastoral lease), is in close proximity to local communities, and there is extensive evidence of fishing, hunting and/or foraging (Bardi and Jawi v Kimberley Quarry). I will deal with each of these issues in turn.
Indigenous owned pastoral lease over ‘greenfield’ area
Gooniyandi People have exclusive native title rights and interests over 91.24 percent of the licence and 98.8 percent of the licence is Louisa Downs indigenous held pastoral lease. The lease is held by the Louisa Downs Pastoral Aboriginal Corporation. It is reasonable to assume that Gooniyandi People are involved in the Corporation, although it is not clear to what extent. The Gooniyandi People hold exclusive native title over most of Louisa Downs pastoral lease per Sharpe v Western Australia. Further, the deponents state that Gooniyandi People live in the neighbouring communities of Yiyili, Moongardie and Pullout Springs, and I note these communities are in relatively close proximity to the licence. In his affidavit, Mr Street says Matt Dawson ‘has spent his whole life mustering on this country’ (Mr Street’s Affidavit (19)).
Inventum state the licence area ‘is a very early stage, greenfield project (no drilling has been undertaken since 1969) that we plan to advance and take through to the next stage’. The State’s quick appraisal appears to accord with this statement. The appraisal notes that a number of mineral claims held between 1969 and 1970 overlapped the licence at no more than 2.1 percent each. The appraisal notes a number of surrendered exploration licences held between 1984-1988, 1996-1997 and 2001-2013 over the licence. There is no further information about the previous activities undertaken on these licences, and so it is reasonable to say that Inventum’s statement is correct – the area is greenfield and there has been limited prior exploration.
Given the above, the Gooniyandi People’s community and social activities on the licence area do not appear to have been constrained by non-indigenous third parties. I also note the Gooniyandi People have been determined to have exclusive native title rights and interests over the majority of the licence area. They have the right to possess, occupy, use and enjoy the land and waters to the exclusion of all others, except in relation to flowing and underground waters.
Proximity to communities
Evidence shows the area is highly accessible all year round via graded roads from local communities where Gooniyandi People reside ‘about an hour’ away. As such ‘people are always using that road coming up and down and hunting and fishing around Me No Savvy’. Four wheel drive vehicles are unnecessary, allowing ‘old people’ and the children from Yiyili School to visit the area frequently (Joint Affidavit (14), (16)-(17); Mr Street’s Affidavit (8), (11), (14)-(15)).
Intensive activities in specific areas
In Tjurabalan v Inventum Resources, I was not convinced that disturbance to the Tjurabalan People’s activities would meet the threshold of being substantial interference. In that matter, I found that the areas where the Tjurabalan People undertook their activities spanned a considerable distance. Even if the activities were concentrated in specific areas, there was ‘insufficient information about the frequency or intensity of such activities for me to draw a conclusion that Inventum Resources’ exploration activities would substantially disrupt hunting, camping or intergenerational teaching social or community activities’ (at [24]). This present inquiry may be distinguished from that previous matter.
First, the licence in the current inquiry comprises a relatively small area of 58 square kilometres, with an approximate 8 x 7 kilometres border. Further, the activities the Gooniyandi people undertake are isolated to specific areas located within the licence – the Me No Savvy Yard area, the permanent water of the Margaret River just south of that area, the part of Dead Horse Creek in the south of the licence area, and the ‘little creek that comes off the Margaret River’. These areas comprise approximately one third of the licence area. As such, if Inventum’s activities are in these areas, then there is likely to be disturbance to hunting, fishing, camping or intergenerational teaching.
Second, the corroborated evidence on this matter (from seven Gooniyandi People) indicates a high frequency of activity on these specific areas by the deponents and other named Gooniyandi people (Joint Affidavit (6)-(9), (14)-(17); Mr Street’s Affidavit (6)-(7), (11), (14)-(15)).
Conclusion
Overall, evidence shows the licence area has not been subject to extensive exploration activity or other non-indigenous interests and is in close proximity to local Gooniyandi communities. I accept that areas within the licence are important and main camping and fishing places, particularly due to the permanent water which exists. I also accept the licence is a main hunting area, and that it is an important and accessible place for taking children and older people to hunt, fish, and conduct intergenerational teaching activities.
In combination (per Bardi and Jawi v Kimberley Quarry) it is difficult to accept that the Gooniyandi People’s social or community activities could co-exist with exploration activities in the licence without substantial disturbance.
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to the Gooniyandi People?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
I note there are no registered sites on the Department of Planning, Land and Heritage’s Aboriginal Heritage Inquiry System (AHIS) Register. There is one ‘heritage place’, overlapping approximately the northern quarter of the licence, called Wunamal/Mueller Ranges (ID 12566). This place appears to run along the Mueller Ranges.
The AHIS Register contains a disclaimer that it does not purport to record all Aboriginal sites in Western Australia. A site of particular significance for the purposes of s 237(b) does not need to be on the AHIS Register. Equally, the existence of sites recorded on the AHIS Register does not necessarily mean they are of ‘particular significance’ for the purposes of s 237(b). Regardless of whether or not the AHIS Register identifies a site, the Tribunal must consider if there is evidence that establishes the existence of areas or sites of particular significance to a native title party, in accordance with their traditions.
What areas or sites do the Gooniyandi People identify on the licence?
Gooniyandi identify the following sites which I accept are on the licence:
· Roorrijboo – ‘a sacred hunting and fishing area’, a ‘main area’ in the licence including Me No Savvy Gorge and Me No Savvy Yard (marked with a blue circle on the map annexed to Mr Street’s affidavit) (Mr Street’s Affidavit (5); Joint affidavit (6)(17)).
· Walankkari – a song line along the Margaret River that tells a specific story, ‘ngarragarni’ (Mr Street’s Affidavit (21)-(23));
· Camping place – ‘right along the [Walankkari] song line’ located ‘on that part of Dead Horse Creek which runs through the south of the tenement area’ (Mr Street’s Affidavit (8));
· Workshop – Spear heads, stoneheads and other old artefacts ‘from a workshop that the old people from this area used … close to the area marked Me No Savvy Yard on the map’ (Mr Street’s Affidavit (17)-(20));
· Jarrgamirami – the moving rock (marked with an ‘X’ on the map annexed to Mr Street’s affidavit and described in the Joint Affidavit at (24));
· Jiloo – the site of two stories, ‘where the Margaret River bends up in the north east of the Tenement Area, just near Me No Savvy Gorge’. (Mr Street’s Affidavit (26));
· Rock art – ‘There is rock art at Me No Savvy Gorge and all around Me No Savvy Spring’. The rock art is walking distance from Me No Savvy Spring (Mr Street’s Affidavit (32); Joint Affidavit (18)-(19));
· Thirroo/Warangarri dreaming Caves – ‘those small caves along the Mueller Range, in the northern part of the Tenement Area’ – it is said caves have been used for burials, but it is not clear whether these are the caves that are part of the Mueller Range on this licence (Joint Affidavit (20)).
Both affidavits refer to massacre sites on or near the licence. Mr Street refers to two massacres ‘where my ancestors were killed’ at Me No Savvy Spring, which is approximately 500 metres west of the licence. The first massacre appears to be at first contact with Europeans because Mr Street states his ancestors ‘had never seen white people before’. He says ‘they were shooting those old people but those old people just stared into the sky because they thought it was thunder coming down from the sky… They didn’t know it was real people … killing them until it was too late’. The second involved Europeans ‘kartiya [who] knew that my ancestors went to that area so they came up and poisoned their tea’ (Mr Street’s Affidavit (29)-(31)). This is said to have taken place ‘near Me No Savvy Spring’.
Both affidavits express concern that the ‘remains of those old people could still be around there at Me No Savvy’ and that ‘[n]obody should be going out there [to the massacre site] without Traditional owners present because they might be digging up … those bones of the old people’ (Mr Street’s Affidavit (29)-(31); Joint affidavit (21)). It is not clear the extent to which the massacres involve or impact on the licence area. In saying this, I do not mean to diminish the significance of the massacres to the Gooniyandi people.
Are there sites of particular significance in accordance with the Gooniyandi People’s traditions?
I find the Me No Savvy Yard/Me No Savvy Gorge area is one of particular significance to the Gooniyandi people because it is known and able to be located, it is on the licence, and the significance of the area is explained clearly, and supported in either or both affidavits provided by Gooniyandi (Silver v Northern Territory at [91]). I expand on the particular significance of that area further below, detailing sites and features within the Me No Savy Yard/Me No Savy Gorge area:
· Roorrijboo – is the name for the Me No Savvy Yard/Me No Savvy Gorge area generally. All deponents say it is an area of ‘history and richness’, ‘a sacred hunting and fishing area’, a ‘special hunting place for Gooniyandi people’ that they ‘all’ treat with ‘respect’ (Mr Street’s Affidavit (5); Joint affidavit (6), (17)).
· Workshop – the particular significance is explained because ‘they are not in other parts of our country. This workshop was here, right across Me No Savvy’ (Mr Street’s Affidavit (Mr Street’s Affidavit (20)).
· Jiloo – the significance of Me No Savvy Gorge is explained and it is an area which has a complex interaction with the ngarragarni dreaming story which created a spring. I do not provide further detail of the dreaming story due to its sensitive nature, but it does support a conclusion that the Me No Savvy Gorge area, including Me No Savvy Yard, is a site of particular significance (Mr Street’s Affidavit (26)).
· Rock art – at the listing hearing, the State argued this area was associated with Me No Savvy Spring, which is outside the licence area. I note the affidavits suggest the rock art is near to the Spring, but also at the Gorge (see [42] above). The significance is explained as ‘[i]f mining mob went near that painting they would have to be told that story by a Senior male Traditional Owner or else they might get sick’ (Joint Affidavit (18)-(19); Mr Street’s Affidavit (32)-(33)). The significance is further explained in terms of ‘if kartiya came in and got rid of that paint by kicking up dust or if they rubbed it off that would be breaking our traditional law and custom’ (Joint Affidavit (18)-(19); Mr Street’s Affidavit (32)-(33)).
· Jarrgamirami – the moving rock ‘just near Me No Savvy Gorge’. In the listing hearing, the State argued this area was not of particular significance, as the evidence went more to activities covered under s 237(a), rather than s 237(b). Mr Street says the moving rock ‘gets the fish moving, when those fish get stranded downstream that rock moves to get them out’ to ‘make it easy for the people there to fish them’. It is reasonable to infer that the moving rock is of particular significance given the extensive evidence of how important the area is for fishing, and the evidence that the rock relates to a dreamtime story (Mr Street’s Affidavit (24)).
I also find the Thirroo/Warangarri dreaming caves are sites of particular significance. These caves are said to be along the Mueller Range which is in the northern part of the licence. The caves are said to be ‘part of an important dreaming for Gooniyandi and Kija people’. The ‘caves are like his footprint. Some of those caves have also been used for old people burials as well’ (Joint Affidavit (20)). They explain the significance by saying ‘We have to make sure nobody goes to those caves without our permission’ (Joint Affidavit (20)).
There is insufficient evidence to conclude the following sites are of particular significance to Gooniyandi People under s 237(b) because the evidence does not sufficiently explain their significance (see Silver v Northern Territory at [91]):
· Walankkari – the songline is broadly referred to.
· Camping place – there is little explanation for why it is an ‘important camping place’ except that it is ‘right along the [Walankkari] song line’ located ‘on that part of Dead Horse Creek which runs through the south of the tenement area’ (Mr Street’s Affidavit (8)).
Is the grant of the licence likely to interfere with areas or sites of particular significance to the Gooniyandi People?
I note the Gooniyandi People have been determined to have exclusive native title rights and interests over the majority of the licence area. They have the right to possess, occupy, use and enjoy the land and waters to the exclusion of all others, except in relation to flowing and underground waters.
Based on the importance and particular significance of the Me No Savvy Gorge/Me No Savvy Yard area, I find there is a real chance or risk that activities under an exploration licence would cause interference. While the State intends to impose conditions and endorsements on the grant of the licence which will, to some extent, minimise interference with water and waterways, and which may reduce the likelihood of interference with areas such as Jarrgamirami, these largely rely on Inventum gaining permits and permissions from the relevant State department prior to doing activities related to water. Inventum is able to take up to 1000 tonnes of material, including earth, soil and rock, from the area during the life of the grant, and there has been no indication of how Inventum might protect the sites of particular significance identified by Gooniyandi, apart from indicating a heritage survey would be undertaken through the RSHA. The nature and extent of the sites of particular significance identified on this licence, and the complex interaction of those sites with dreaming stories and the social and community activities of the Gooniyandi people, are such that exploration activities which do not trigger a heritage survey may cause disturbance for the purposes of s 237(b).
For example, when Mr Street talks of the workshop, he notes it ‘is very hard for people who aren’t traditional owners to know if they are destroying these artefacts or disturbing them.’ He states they ‘wouldn’t know what they are looking for with this workshop… We know this ground’ (Mr Street’s Affidavit (17)-(20)). Given the close proximity of the licence to massacre sites, and the fact there are social and community activities conducted intensively on this licence which are important to the traditions of the Gooniyandi people, particularly in the Me No Savvy area, I have no doubt in concluding it is likely there are artefacts in the area that could be disturbed by low impact exploration activities. Such activities could be undertaken without triggering a heritage survey under an RSHA.
Further, by way of example, both affidavits explain interference to the rock art. They explain that even if Inventum went ‘near that painting they would have to be told that story by a Senior male Traditional Owner or else they might get sick’ (Joint Affidavit (19)). As McKerracher J outlined (at [75]-[76]) in FMG v Yindjibarndi:
….mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference…That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) NTA, may be substantial having regard to the native title party’s traditions.
With reference to McKerracher J’s findings above, I make the same finding regarding interference in relation to the Thirroo/Warangarri dreaming caves area. The deponents express concern that entry to the caves must be via permission and done properly: ‘Mining mob … has to speak to the Senior Traditional owners like Mervyn Street and David Street, because that is their area and they are the only ones that can make sure mining mob can go there properly, so they don’t get sick’ (Joint Affidavit (23)-(24)).
Evidence also shows that there has been very little interference with the licence area from other activities to date.
Determination
For the reasons stated above, I find the grant of exploration licence E80/5073 to Inventum Resources Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
13 July 2018
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