Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Alchemy Resources (Murchison) Pty Ltd
[2010] NNTTA 151
•15 September 2010
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Alchemy Resources (Murchison) Pty Ltd, [2010] NNTTA 151 (15 September 2010)
Application No: WO09/957, WO09/958 & WO09/959
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Ike Simpson & Ors on behalf of the Wajarri Yamatji – (WC04/10) (native title party)
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The State of Western Australia (Government party)
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Alchemy Resources (Murchison) Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 15 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 29, 31, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Cases:Ben Ward and Ors on behalf of the Miriuwung-Gajerrong People/Western Australia/CRA Exploration Pty Ltd [1996] NNTTA 9 (29 February 1996) The Hon CJ Sumner
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
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Ike Simpson and Others on behalf of the Wajarri Yamatji/Western Australia/Peter Andrew Wiltshire [2009] NNTTA 119 (6 October 2009) Daniel O’Dea
Little v Oriole Resources Pty Ltd [2005] FCAFC 243, 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 CJ 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 and Others on behalf of the Wajarri Elders (WC01/3)/Western Australia/Hampton Hill Mining NL, [2002] NNTTA 43 (11 April 2002) Hon C J Sumner
Ronald Crowe & Others v State of Western Australia [2008] NNTTA 71; 218 FLR 429
Rosas v Northern Territory (2002) 169 FLR 330
Silver v Northern Territory (2002) 169 FLR 1
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
Representatives:
Native title party: Ms Lisa Randall, Yamatji Marlpa Aboriginal Corporation
Ms Samantha Rosenfeld, Yamatji Marlpa Aboriginal Corporation
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Mr Greg Abbott, Department of Mines and Petroleum
Grantee party: Mr Stuart House, Alchemy Resources (Murchison) Pty Ltd
REASONS FOR DETERMINATION
On 12 August 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant prospecting licences P20/2097, P20/2098 & P20/2099 (‘the tenements’) to Alchemy Resources (Murchison) Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grants attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).
The tenements comprise areas of:
(a) P20/2097 – 4.32 hectares located 57 kilometres north of Cue. It is 100 per cent within the registered claim of the Wajarri Yamatji (WC04/10 - registered from 5 December 2005).
(b) P20/2098 – 3.4 hectares located 57 kilometres north of Cue. It is 100 per cent within the registered claim of the Wajarri Yamatji (WC04/10 - registered from 5 December 2005).
(c) P20/2099 – 0.33 hectares located 57 kilometres north of Cue. It is 100 per cent within the registered claim of the Wajarri Yamatji (WC04/10 - registered from 5 December 2005).
The registered claim is a result of an order of the Federal Court of Australia made on 4 February 2005 to combine the applications of Ngoonooru Wadjari People (WAD6033/98, WC00/12) registered on 20 June 2001 and The Wajarri Elders (WAD6042, WC01/3) registered on 9 July 2001. No other native title groups overlap the tenement.
On 11 December 2009, the native title party made an expedited procedure objection application to the Tribunal.
On 11 January 2010, Deputy President Sumner was appointed as the Member for the purposes of the conduct of the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At an adjourned status conference on 14 April 2010 the native title party requested the matter proceed to inquiry on the basis that they were not willing to negotiate anymore. This request followed a number of conferences and a request to extend direction compliance dates to enable parties to negotiate a Weld Range Heritage Agreement. The matter was to proceed to inquiry on the direction compliance dates as amended, and approved by DP Sumner on 15 March 2010. The Listing Hearing date was set down for 27 May 2010.
Prior to the Listing Hearing, on 11 May 2010 the native title party requested a four week extension for direction compliance dates on the basis that the remoteness of the tenements and the traditional owners had caused delays in the preparation of contentions. A further request of two days was made on 11 June 2010 to allow for the swearing of Ms Nalder’s affidavit. At the Listing Hearing on 24 June 2010 the native title party made a request for three weeks further to respond to the grantee party’s contentions.
At the listing hearing held on 24 June 2010 the grantee party requested that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. No other party dissented from that request. I am satisfied that the objection can be adequately determined on the papers (s 151(2) the Act).
The Government party lodged its contentions and evidence on 23 April, 6 May and 7 May 2010. The native title party lodged its contentions and evidence on 16 June 2010 and the fully executed affidavit of Mr Hamlett on 22 June 2010 followed by its reply on 13 July 2010. The grantee party submitted its statement of contentions on 22 June 2010.
On 25 June 2010, I was appointed by the President of the Tribunal 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 in Walley (at 453-454 [34]) have been strengthened.
With respect to issues arising under s 237(b), I also 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), DP Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of 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 State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340)
Contentions of the Government Party
The Government party documentation establishes that the underlying land tenure on P20/2097 is:
·PA67 Geothermal Discrete Area Release – 100%; and
·Pastoral Lease 3114/796 (GLEN) – 100%.
The Government party documentation establishes that the underlying land tenure on P20/2098 is:
·PA67 Geothermal Discrete Area Release – 100%; and
·Pastoral Lease 3114/796 (GLEN) – 100%.
The Government party documentation establishes that the underlying land tenure on P20/2099 is:
·PA67 Geothermal Discrete Area Release – 100%; and
·Pastoral Lease 3114/796 (GLEN) – 100%.
The Government party documentation reports there are no Aboriginal communities identified within the area or in the near vicinity of the tenement, however the town of Cue is somewhere in the vicinity of 60 km from the tenements.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the tenement areas, but the following sites are within close proximity to the tenements:
·Site ID 11132 – Wilgie Mia (mythological, skeletal material/burial, man-made structure, quarry, artefacts/scatter – archaeological deposit – permanent register, closed access, no restriction) – less than 1.5 km from the east border of P20/2097;
·Site ID 11181 – Wilgie Creek (artefacts/scatter – insufficient information, open access, no restriction) – within 1.5 km from the east border of P20/2097;
·Site ID 6825 - Wilgie Mia Bora Ground (ceremonial, mythological, man-made structure – permanent register, closed access, no restriction) – approximately 3.5 km from the northern borders of the tenements.
The Government party Quick Appraisal documentation indicates the following as of 22 April 2010:
·There is one pending miscellaneous licence that affects P20/2097. It overlaps P20/2097 by 7.2 per cent.
·There are 2 dead tenements, being an exploration licence and a prospecting licence, that were surrendered and withdrawn in 2001 and 2008 respectively that affect P20/2097.
·There are two pending exploration licences that affect P20/2098. They overlap P20/2098 by 2.7 per cent each, and one is held by the grantee party.
·There are 3 dead tenements, being an exploration licence and two prospecting licences, which were surrendered, forfeited and withdrawn between 1996 and 2008 that affect P20/2098.
·There no live tenements that affect P20/2099.
·There are 2 dead tenements, being an exploration licence and a prospecting licence, which were surrendered and withdrawn in 2001 and 2008 respectively that affect P20/2099.
The grant of the tenements 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).
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’), formerly Department of Industry and Resources (‘DoIR’). 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, DoIR (as noted above, now ‘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, among 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 to obtain advice from that department that the proposed activities are acceptable.
In addition, the grant of the tenements will be subject to the following conditions 5-6:
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post of 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.
The following Endorsements (which differ from conditions in not making the licencee liable to forfeiture of the licence for their breach) will be imposed in relation to the tenements:
1.The licencee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder.
2.The licencee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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.
The contentions of the Government Party also provide that the following condition will be placed on the tenements upon their grant:
‘In respect of the area covered by the licence the Licensee, if so required in writing by the Wajarri Yamatji, the applicants in Federal Court application no. WAD 6033 of 1998 (WC04/10), such request being sent by pre-paid post to reach the Licencee’s address, GPO Box 2815, Perth WA 6001 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wajarri Yamatji the Regional Standard Heritage Agreement endorsed by peak industry groups and Yamatji Land and Sea Council.’
Evidence provided by the native title party
The submissions of the native title party include the witness statement of Colin Hamlett. The statement is made in the following terms:
WitnessStatement of Colin Hamlett (‘WS’)
1.I am a winja/bardani [Elder] and an applicant of the Wajarri Yamatji claim. I am recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area. I know the area in and around the tenement area and have worked at Karbar and Beebyn Stations before.
2.I have seen a map, which shows the location of the tenements P20/2097, P20/2098 and P20/2099 (“the Tenements”) and it is an area I know very well.
3.I was taught about the stories from the area by my father and other Wajarri elders. The Tenements are right along the Weld Ranges and next to Wilgie Mia and Little Wilgie Mia. This is an area of special importance to Wajarri people. The area is important not just to Wajarri people but to Aboriginal people all around the state, to Wanmalas in the desert and Marlbas in the Pilbara. It is one of the most important areas in wajarri country and the stories and the ochre from the Weld Ranges go all the way out to the Western Desert. The old people used to take the ochre from Wilgie Mia and paint in the caves on the west side of the Weld Range too. There are caves all throughout that area that have been painted by the old people taking ochre from Wilgie Mia.
4.There is a dreaming story about the Weld Range, this story is about a kangaroo who came from the coast and came all the way to the Weld Ranges. The ochre is the blood from the kangaroo. The Weld Ranges and the Tenements area is part of that story. That’s because its all linked – its linked by stories, by law, and because people travelled up and down the range to the places where the Tenement is. There are also places in this area where old tribal gear for ceremonies and law business were stored and some of it is still there.
5.A couple of the largest ceremonial areas in Wajarri country are located right near the Tenements. Wajarri people would invite people from all over to corroborees at this place, to meet and trade. There would be people from the Wanmalas in the desert and Badimias and all different Wajarri people, as well as coastal people, coming to the ceremonies there. I know about these places, because my father went through the law in the Weld Ranges and he taught me about these places.
6.The old people camped all around the area and including within the Tenements. There are old camps all around the Weld Range. When people came for law business they would camp all along the Weld Ranges and in the Tenements area. You can see where the fires were lit at the old camping places, because you can kick up the ashes from the ground.
7.I am aware of lots of sites, including ceremonial grounds and camping grounds, and the sites that I spoke of above that are located within and around the Tenements, are not marked as registered sites.
8.I went out to the area with the National Heritage Listing people some years ago and my brother dug up a boomerang while we were camping in the Weld Ranges. From the map it looks like the area we camped was inside the area of the Tenements. He was digging a hole to bury rubbish in while we were camped out there. The boomerang must have been left by one of the groups of old people camping there. Often after ceremonies people would bury important items and it is important that these are not disturbed. If he dug one of these up then there must be lots more artifacts buried in and around the area. If these are disturbed or damaged then this would cause a lot of problems for Wajarri people and our country would be hurt.
9.The Tenements area is very good hunting country and is important for Wajarri people because it is used frequently as a hunting and camping area and a place to collect bush foods, especially by the Wajarris living in Cue. The Cue mob are always going out to get kangaroos from around Cue and the Tenements area. The Tenements are close to Cue, where lots of Wajarris live, and have good roads going right up to and through the tenement areas which makes it easy to access.
10.Within the Tenements there are Guradah which are a type of tree. These are very important for Wajarri people and have lots of uses. The seeds can be crushed to make damper or straight in the roots you can find bardis, it’s a very good medicine bush as well and you can make warlanu [boomerangs] and gurndi [fighting sticks] from the branches. Guradah grows in the Tenements. There are also lots of Mulgas in the tenement area which are good for making wirrangu [spears] and warlanu. Beefwood trees also grow in the tenement area and you can use those to make urndas [shields].
11.There is also a very important medicine bush called gandilangu which grows in the Tenements area. These are very important for Wajarri people. It’s a very good medicine bush which has lots of uses. White people use this to combat cancer. You can boil the bark and bathe people in it. It kills germs and will help people with scabies. If you have a tooth ache you can boil up the leaves and chew on those and that will make the ache go away. If you poke part of the leaf in a wart and break it off then the wart will fall away. You can get all of these things from the area within the Tenements.
12.The flat area at the base of the Weld Ranges is where people used to live. This is where the food is plentiful. This is also near the Tenements.
13.If there are drilling rigs in the Tenements then we would not want to go and hunt or camp there. The kangaroos would be scared away and we wouldn’t to camp there with drill rigs going or other exploration activity. The tracks cleared for an exploration activity would knock down important plants for us and it would not be safe to shoot kangaroos with other people in the area.
14.When I was a young boy and would dig sand up in the ground, my parents or any other adults would push the pile of dirt down and stop me from digging saying that I was killing people by burying them. This is part of our traditional Wajarri beliefs. If people dig up the ground near Wilgie Mia and the Weld Ranges, then this could affect those sites and have serious effects for Wajarris and other tribes.
15.Springs and soaks outside the Tenements could be affected if people drill in the tenement area and that affects the water level.
16.There are lots of wudajis and mundungu [spirit people] that live within the Tenements. They live in the hills and the caves of the tenement area. That’s their home. These people are little hairy men or spirits. If wudajis get upset then they upset Aboriginal people and they will make you get sick, sometimes they give people a flogging or they throw them out of bed and they’re quite cheeky and will tip water out of containers, burst water bags or put holes in water containers.
17.If there are holes drilled or bush cleared within the Tenements then wudajis and mundungu could get upset and they could cause problems for us Wajarri people and also people that are doing exploration work in the tenement area. You have to be initiated people to walk around those hills. If you weren’t initiated and walked around there, this would have negative spiritual effects on them and their families – they can get sick, they can even die and this can continue through the families.
18.Some Wajarri people won’t camp in the Tenements area by themselves or when there’s only one or two people by themselves, and will only camp there in large groups because there are so many wudajis and mundungu there.
19.We were told by old people and we teach our young people that they need to look after country especially areas that are very important such as the Weld Ranges and we need to prevent these from being damaged.
20.There are some areas out there that shouldn’t have uninitiated people going wandering through. This can have negative effects on them and their family. There are law grounds in that country very close to the Tenements and only the right people can go there.
21.One time I camped in the Weld Ranges a few years ago with another old Wajarri man and a white person., the other Wajarri man I was with kept the fire going all night and wouldn’t sleep because he was scared of the wudajis there.
22.I have seen the damage that mining activity can have on our country. I went out to an area near Yalgoo some years ago to check on the impact that the mining activities were having on our country. When we got there we saw dead and dying plants all along the area where there was run off water. Seeing that made us angry, as our country is being damaged by these mining companies all the time.
23.When we go bush we see the damage that mining companies do everywhere, they rip up the dirt all over the place, all through the Murchison, They cut tracks everywhere, knock down trees, put dumps in the ground and don’t clean up once they’ve gone. The tracks that they grade last for years and years. You can see the tracks that mining companies make years after they’ve gone and left the area. When they make the tracks, they remove the trees and plants from there and they become eroded. When rains come they run along the tracks and this erodes it even further.
24.I’ve seen another tenement that this company has worked on and I’ve been told it was number E51/1048. I was informed by the station owner David Leech that there was work going on in the area and he asked whether I knew about it. I told him I didn’t know and I informed the Land Council so they could organise to go out to the tenement and see what work they were doing because they hadn’t done a heritage survey over the area.
25.I went out there with Matthew Punch from the Land Council and we saw what they’d done on the tenement. They’d uprooted trees, they cleared the area of scrub and bushes and they didn’t follow the tracks. They’ve drilled and disturbed the ground and eroded the soil. They were generally reckless in the way they were dealing with the land.
26.The reckless way they ripped the ground up will leave it barren. They were ruining the country and weren’t thinking about rehabilitation for anything they’ve done in the past.
27.Some of the little creeks in the area have been destroyed as a result of the cleared soil. These areas will become little gullies which will change the face of the landscape.
28.We can’t let people like that around Wilgie Mia and Little Wilgie Mia. They’ve done it before and they’ll do it again. They can’t be trusted in that area. It’s wrong what they’ve done and they shouldn’t be allowed. I don’t trust this company anymore.
29.I believe that the conduct of these activities within the Tenements will disturb the country greatly. The ground and vegetation would be disturbed by the creation of tracks through the tenement area and the drilling could disturb and anger the Wudajis and the sites around the Tenements.
30.If people go drilling on the Tenement then that could upset the Wudajis in the area and they would then go and cause trouble.
The native title party submitted a further affidavit by Mr Hamlett on 13 July 2010 in a response to the grantee party’s request for further and better particulars of Mr Hamlett’s allegations against the grantee party (WS 24 - 28). The statement is made in the following terms:
Affidavit of Colin Hamlett (‘CH Aff’)
1.I am a winja/bardani [Elder] and an applicant of the Wajarri Yamatji claim. I am recognized under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area. I know the area in and around the tenement area and have worked at Karbar and Beebyn Stations before.
2.I have seen a map, which shows the location of the tenements P20/2097, P20/2098 and P20/2099 (“the Tenements”) and it is an area I know very well.
3.I refer to the witness statement signed by me on 21 June 2010 (“the Witness Statement”) and affirm all the information provided therein. I make this Affidavit in support of that witness statement and in support of the Objector.
4.Statements contained in this affidavit are made from my own knowledge or to the best of my knowledge information and belief.
5.I refer to paragraph 24 of the Witness Statement and further state that in or about January 2009 I was informed by the station owner David Leech that there was work going on in the Tenements area.
6.In or about February 2009, David Leech and I went out the Tenements area, near Cue, Little Wilgie Mia and Wilgie Mia, to check on the impact the work was having. The company had cleared paths, damaged lots of trees and native plants where you could usually find good bush tucker. The old people always found good bush tucker there and showed me how to do it. The company also drilled a few holes in the area and all the drilling and clearing of vegetation meant that when it rained a creek formed. There was never any creek there before the company worked in the Tenements area.
7.I refer to paragraph 25 of the Witness Statement and further state that in or about February 2009 I again visited the Tenement area with Matthew Punch who at the time was a lawyer with the Land Council. We saw what they’d done on the Tenements. We saw the damage to trees, the drill holes, the cleared tracks and the new water runs, and we took photos of everything. I was very upset that the soil was eroded and that the trees were destroyed and that the company would be so reckless with my country. The company have still not rehabilitated the Tenements area and fixed things up.
8.The Tenements area is important to my family and to all Wajarri people. It is a very sacred place. The area is important not just to Wajarri people but to Aboriginal people all around the state, to Wanmalas in the desert and Marlbas in the Pilbara. It is one of the most important areas in Wajarri country.
9.There is a dreaming story about the Weld Range running along the Tenements area, starting all the way on the coast and linking many Aboriginal people. There are also places in this area where old tribal gear for ceremonies and law business were stored and some of it is still there. As I stated in my Witness Statement, a couple of the largest ceremonial areas in Wajarri country are located right near the Tenements.
10.There are also law grounds in that country very close to the Tenements and only the right people can go there or there will be negative effects on those people, their families and the people who should have been looking after the sites.
11.I am concerned about these activities in the Tenements area because we were told by old people and we teach our young people that they need to look after country especially areas that are very important such as the Weld Ranges and the Tenements area and we need to prevent these from being damaged.
12.I believe that the conduct of these activities within the Tenements will disturb the country greatly. The ground and vegetation would be disturbed by the creation of tracks through the tenement area and the drilling could disturb and anger the Wudajis and the sites around the Tenements.
To the extent that the evidence of Mr Hamlett is uncontested I accept it. He is an elder of the native title party and an applicant to the native title party’s native title claim (WS 1 and CH Aff 1). I accept that Mr Hamlett has the authority to speak for country on behalf of the native title party. The substance of the evidence of Mr Hamlett in paragraphs 22 to 29 of his Witness Statement, is challenged by the grantee party in its contentions signed by Mr Stuart House, the Commercial Manager of the grantee party at paragraphs 9 and 10. In response to that, Mr Hamlett filed a further affidavit which deals further with the issue raised in paragraphs 22 to 29 of his Witness Statement at paragraphs 5 to 12. I note that the evidence of Mr Hamlett in both the Witness Statement and the subsequent affidavit is very general in its nature and, in my view, does not conclusively establish that either the tenements concerned were ones operated by the grantee party in this matter, or that the criticism of the behaviour of the miner in question was justified. On the other hand, no representative of the grantee party has taken the trouble to provide any evidence (in affidavit form or any other), which would serve to clarify the situation or fully rebut the allegations made in the evidence of Mr Hamlett.
The native title party submitted an affidavit by Ms Sanna Maria Nalder, Anthropologist, on 16 June 2010. The affidavit is provided on the basis that it provides expert evidence as to the profound significance of the Weld Range region and in particular, the area surrounding Wilgie Mia and Little Wilgie Mia to the native title party and many other Aboriginal groups across the State and beyond. Her evidence is that the ochre mines at Wilgie Mia produced ochre which was traded as far away as Jigalong, Wiluna, Warburton and Warakurna (SN Aff 11). The affidavit makes references to the work of numerous anthropologists going back to Daisy Bates which establishes importance of the Weld Range, including the various stories of Dreaming Tracks and songlines which pass through the area (SN Aff 10). It corroborates a good deal of the evidence given by Mr Hamlett as to the importance of the areas of the Weld Range and Wilgie Mia and Little Wilgie Mia in particular, and also the significance of the Marlu Dreaming stories and stories of spirits known as Wudaji and Mondong, which are referred to in Mr Hamlett’s affidavit. At paragraph 12 Ms Nalder makes specific reference to the significance of the tenement areas.
Attached hereto and marked “SN-4” is a Department of Indigenous Affairs registered sites online site search results over the general tenement area and the larger Weld Range area. The tenement area site search demonstrates the vicinity of important registered sites and covers the area 7010000N, 564000E / 7023000N, 570000E. The larger site search covers the rough area recommended as the Weld Range cultural complex (7040000N, 590000E / 7000000N, 520000E) in the National Heritage Listing application and reveals 224 registered Aboriginal heritage sites. Included are a number of closed sites indicating important ceremonial and mythological sites. This figure includes only the sites which have been registered during heritage surveys conducted over some of the area. Despite the density of the registered sites, not all of the area has been surveyed and many more sites known to traditional owners have remained unregistered. In May 2010 (during an interview with the custodians of Weld Range) I was informed by Colin Hamlett and his son Carl Hamlett that the Weld Range, including the area either covered by, or in the immediate vicinity of the tenements P20/2097-2099, is full of important sites ranging from artefact scatters and campsites, to rock-art, dreaming places and law grounds.
The evidence from Ms Nalder is uncontested and I accept it. She is a qualified anthropologist with experience in native title anthropology (SN Aff 1-3).
Contentions of the grantee party
The grantee party’s contentions include statements by the grantee party that it is aware of its obligations under the Regional Standard Heritage Agreement (RSHA) and the AHA, and will comply with those obligations. As has been noted above, the grantee party contests the evidence of Mr Hamlett to the effect that it has failed to abide by its obligations, particularly concerning care for the environment and Aboriginal heritage in other tenements it holds within the region. It has not, however, provided any evidence in rebuttal of Mr Hamlett’s assertions. The grantee party has not provided any details of its intended work program or indication of the areas within the tenements that the grantee party intends to work in. It has, however, correctly indicated that the contention made by the native title party to the effect that the grant of the tenements would commit it to remove 1,000 tonnes of material from each site is, in fact, incorrect (see objector’s Statement of Contentions at 11 and grantee party’s Statement of Contentions at 11). In fact, the grantee party would be entitled to remove 500 tonnes of material, should the tenement be granted. Further, it has provided a copy of the Geraldton RSHA.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment as to whether the grant of the tenement, and activities undertaken pursuant to it, are likely to interfere with the community or social activities of the native title party (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’). The notion of 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 into account 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 451-452 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration licences 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]). As can be seen from paragraph 19 above, there has been a history in the recent past of exploration and prospecting activity in the area.
The evidence of Colin Hamlett is that he knows the area of the tenements well and ‘the old people camped all around the area and including within the Tenements’ (WS 6). He states that there are lots of sites, including ceremonial grounds and camping grounds which are located within and around the area which are not registered sites (WS 7). He states that when taking the National Heritage Listing people to the Weld Range area he thinks he camped within one of the tenement areas, which he does not specify, where his brother dug up an old boomerang, which indicated that it was an area which old people had previously used (WS 8). Mr Hamlett also indicates that the tenement areas are very good for hunting and the people from Cue go out there frequently (WS 9). Further, he states that there are in the area several types of trees which are good for a range of uses for Wajarri people, including the Guradah tree whose seeds can be crushed for damper and whose roots are good for finding bardies and it is also useful for making warlanu (boomerangs) and gurndi (fighting sticks). There are Mulgas in the area which are good for making wirrangu (spears) and warlanu (boomerang). There are Beefwood trees in the area which are good for making urndas (shields) (WS 10). He further states that there are important bush medicine plants which grow in the area, including gandilangu which is good for a range of treatments (WS 11). Mr Hamlett asserts that should drilling take place out there, the animals would be scared away and people would be reluctant to go there anymore (WS 13). Further, Mr Hamlett says that drilling in the tenement area could affect springs and soaks and it could also upset spirit people (wudajis and mundungu) who live in the tenement area. If this disturbance was to occur, it would make it difficult for people to visit the area (WS 15 - 17).
I note that the references to the hunting and collecting activities which take place in the tenement area are often expressed as being carried out within and around the tenement areas concerned. It needs to be noted that the three tenement areas involved make up, by my calculations, approximately 8 hectares in total. That is a very small area and the evidence of Mr Hamlett does not lead me to the conclusion that this is the situation where the plants and animals that he is referring to are, in fact, concentrated in the tenement areas and not also available for collection in the area in the vicinity of the tenements and, indeed, throughout the Weld Range and beyond into the broader Yamatji Wajarri claim area. At no point does Mr Hamlett distinguish between the three tenement areas, for example, by suggesting activities peculiar to, or sites located within, one or more of the tenements. This adds to the generality of his evidence.
The evidence adduced in this matter by the native title party does not provide any basis for suggesting that there are significant social or community activities carried out by the native title party in or within the vicinity of the tenements, which are likely to be affected by the grant of the tenements. I find that the grant of the tenements is not likely to directly interfere with the exercise of the community and social activities of the native title party.
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) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows there are no registered sites within the tenement, but this does not mean there may not be other sites or areas of particular significance over the 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. There are three significant registered sites in close proximity to the tenement areas as well as the Little Wilgie Mia site which appears to be unregistered.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (most recently, in 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), Member O’Dea, (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 the presumption of regularity and the protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist. In making that assessment, the intentions of the grantee party are critical.
The evidence of Mr Hamlett corroborated by the evidence of Ms Nalder, establishes the proposition already accepted by the Tribunal in numerous previous matters (see Robin Boddington and Others on behalf of the Wajarri Elders (WC01/3)/Western Australia/Hampton Hill Mining NL, [2002] NNTTA 43 (11 April 2002) (‘Boddington’) at [16]-[17] and Ike Simpson and Others on behalf of the Wajarri Yamatji/Western Australia/Peter Andrew Wiltshire [2009] NNTTA 119 (6 October 2009) (‘Simpson’) at [36-37]) that the Weld Range area in general and the Wilgie Mia and Little Wilgie Mia sites, in particular, are of enormous significance to the Wajarri Yamatji people who make up the native title party in this objection and to Aboriginal people, more generally, across the State. The reasons for this relate both to the area being a source of ochre, which is used for ceremonial purposes across the State, and for the importance of numerous dreaming stories, including that of the marlu which move through the Weld Ranges and well beyond into the interior.
In his evidence, Mr Hamlett states that there are many sites, including ceremonial grounds and camping grounds, located within and around the tenement areas that are not registered sites (WS 7). Mr Hamlett states that the old people used to use the ochre from Wilgie Mia to paint caves throughout the western side of the Weld Range (WS 3). Mr Hamlett also says that there are camping grounds within the area of the tenements (WS 6), ceremonial grounds within the area of the tenements (WS 7), and that his brother found a boomerang buried in the country, the subject of one of the tenements, which was an indication of the importance of the area (WS 8). Also, Mr Hamlett tells a story that as a young boy when he was digging the ground near the area of Wilgie Mia in the Weld Ranges, he was told by his parents that he should stop doing it because he was killing people by burying them. Mr Hamlett suggests that this is evidence that the ground within the Weld Range, in general, is of such significance that it should not be disturbed in any way (WS 14).
Mr Hamlett, in his evidence, has not precisely identified any site which he says is of particular significance within the area of the tenements, nor has he identified which sites are within which tenement. On the basis of the evidence before me, I am not able to establish that there are any sites of particular significance within the tenement areas that are the subject of this objection. I wholly accept that the Weld Range, in general, is an area of particular significance to the native title party and so is Wilgie Mia and Little Wilgie Mia. The question that I must address in this matter is whether, in the circumstances, the proximity of those two specific sites of particular significance to the native title party and the general nature of the area within the Weld Range, is sufficient to give rise to the prospect of there being a likelihood of interference with those sites, notwithstanding the protective provisions which I must take into account.
The native title party asserts in their contentions at paragraph 15 that the ‘tenement area’ is ‘site rich’. I do not accept that contention for the reasons stated above. The native title party goes on to suggest at paragraph 14 that ‘The tenement is also located in a broader area of particular significance to the native title party; the Weld Range’. While I do not necessarily accept, for the purposes of s 237(b), the Weld Range as such can be considered an area of particular significance to the native title party, I do accept that the two registered sites being Wilgie Mia and Little Wilgie Mia which are located in close proximity to the tenement areas, are sites of particular significance to the native title party and have been found to be so before by the Tribunal (see Boddington at [16]-[17] and Simpson at [36-37]).
As DP Sumner said in Ben Ward and Ors on behalf of the Miriuwung-Gajerrong People/Western Australia/CRA Exploration Pty Ltd [1996] NNTTA 9 (29 February 1996) WO95/34 at [4]:
Section 273 (b) refers to interference with sites of particular significance in accordance with the traditions of the native title parties and I think that as a matter of law this interference could occur to a site outside a proposed exploration licence.
I accept that statement and believe that I can now proceed to consider the question of whether the protective regime which is in place is sufficient to make it unlikely that interference will occur to those sites in the circumstance of the grant of these particular tenements.
I note the various conditions which the Government party will impose on the grant of the tenements and the fact that the grantee party has executed a RSHA in relation to the area, which will prevent it from undertaking ground-disturbing activities without the conduct of heritage surveys involving members of the native title claimant group. I also note the condition referred to in the Government Statement of Contentions at paragraph 5(e) which would require the grantee party to renew the offer to enter into such an agreement with the native title party within 90 days of the grant of the tenement.
I note that at paragraph 22 of the native title party’s contentions, that they argue that, notwithstanding the protective provisions of the RSHA, it does allow for entry to carry out Low Impact Activity without the need for a heritage survey. In the view of the native title party, that activity is likely to cause interference with sites, given the particular sensitive nature of the location of the tenements. Consequently, in their view, consultation and discussion between the native title party and the grantee party is necessary before any interference should occur. I note that the RSHA which was attached to the contentions of the native title party defines low impact exploration as:
Includes aerial surveys, geological mapping, metal detecting, rock chip, hand specimen and soil and drainage sampling, only using handheld tools and non ground disturbing geophysical surveys including electrical and magnetic surveys and incidental activities.
It is arguable at least that rock chipping and soil and drainage sampling may, in fact, interfere with some sites in a way which would be unacceptable in the circumstances. On the other hand, it is clear that any activity, notwithstanding the provisions of the RSHA, is also subject to the AHA and consequently any unauthorised interference would constitute an offence.
The grantee party asserts that it has, and will continue to, abide by all of its obligations under the AHA (see paras 7 & 8). It has not, however, provided any evidence or information relevant to its intentions other than its readiness to agree to the RSHA. In the absence of evidence to the contrary, I must assume that the grantee party will fully exercise its rights under the Mining Act 1978 (WA) (see Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 51-51 [34]-[35].
The Government party contends in its submission that, in making a predictive assessment, the Tribunal can have regard to the enhanced effectiveness of the Government party’s regulatory regime for the protection of Aboriginal sites (see Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 (‘Champion’) at [71], (GPS 21) and the grantee party’s attitude to the RSHA: Champion at [30-[34] (GPS 23). They contend that the Tribunal may have regard to the extent the grantee party will go to ensuring that the risk of interference is minimised: Champion at [30] - [34] (GPS 24). Furthermore, the Government party contends, by way of example that in Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’) at [49] Member Sosso referred to the desire of the grantee party to ensure that any exploration activities are ‘conducted in a culturally sensitive manner’ (GPS 24).
On the basis of the evidence provided to me, I have not reached the conclusion that there are any sites of particular significance to the native title party within any of the three relevant tenement areas. Notwithstanding that, the three proposed tenements are located in close proximity to sites of particular significance to the native title party within a broader locale which is accepted to be of great and particular significance to the native title party and other Aboriginal people. The area of the three tenements concerned is very small (8 hectares in total). The tenements, if granted, will be subject to a range of conditions routinely imposed by the Government party, including a requirement that the grantee party give the native title party an opportunity to enter into the RSHA for the Geraldton area. That RSHA requires the grantee party to conduct heritage surveys on the area before any ground disturbing work can take place. Under the provisions of that agreement, the grantee party may conduct low impact activity such as hand sampling and rock chipping, amongst other things, without the conduct of such a survey. The existence of the AHA and the requirement to enter into a RSHA, does not settle the question of whether, in the circumstances, it is not likely that sites will suffer interference (see RonaldCrowe and Ors v Western Australia [2008] NNTTA 71 (6 June 2008); 218 FLR 429 at 457 [100]. However, after carefully considering the matter, in my view, given the protective regime and the RSHA requirement, any sites which may be of significance within the tenement areas are unlikely to be interfered with, and there is no evidence to suggest that prospecting activities will interfere with those very important sites located within close proximity of the three tenements. Consequently, I find it is not likely that there will be interference with any site of particular significance.
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 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 v Oriole Resources Pty Ltd [2005] FCAFC 243, 146 FCR 576) (‘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. As the Tribunal has noted, the starting point and precondition of any inquiry into major disturbance is evidence of proposed physical disturbance of land and waters.
However, when assessing the likelihood of whether the physical disturbance will be major, it is open and appropriate for the Tribunal to consider how the physical disturbance will impact on the customs, traditions etc of the native title claimant group.
(see Rosas v Northern Territory (2002) 169 FLR 330 at 359 [84].
The evidence of Mr Hamlett, as it relates to s 237(c), appears to be contained in paragraph 15 to the effect that drilling will impact on the springs and soaks in the tenement area and have an effect on the water level. That the disturbance of the wudajis and mundungu by the activity of the grantee party within the tenement areas will cause them to create general mischief in the area (WS 16). Also, that such disturbance of the spirit people is likely to lead to sickness in both the native title party and other parties (WS 17) and the assertions contained in paragraphs 22 – 29 and 29 in general to the effect that mining and, in particular, the grantee party, cause significant and serious disturbance to the country when undertaking exploration activities.
In relation to the question of the general impact of mining and the behaviour of the grantee party, in particular, as I have indicated previously above, I am not convinced that there is sufficient evidence for me to conclude any negative inference against the grantee party on the basis of the evidence put forward by the native title party. Further, there is no evidence before me in relation to the impact of drilling on springs and soaks outside the tenement area. In relation to the disturbance of the spirit people (WS 16-17) it does not seem to me that there has been sufficient nexus provided or evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas, nor in my view is such disturbance likely to be considered major by the general community as required by Silver. The position of the native title party in relation to this limb does not seem to be pressed or elaborated upon in its contentions. Consequently, I am unable to find any evidence that would lead me to the conclusion that there is any likelihood that such disturbance might occur.
Determination
The determination of the Tribunal is that the grant of prospecting licences P20/2097, P20/2098 and P20/2099 to Alchemy Resources (Murchison) Pty Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
15 September 2010
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