Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Geotech International Pty Ltd
[2011] NNTTA 48
•17 March 2011
NATIONAL NATIVE TITLE TRIBUNAL
Ike Simpson & Ors on behalf of the Wajarri Yamatji/Western Australia/Geotech International Pty Ltd, [2011] NNTTA 48 (17 March 2011)
Application No: WO10/686 and WO10/693
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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Geotech International Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 17 March 2011
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure 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
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (22 February 2011), Hon C J Sumner
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
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
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Representatives
Representative of the
native title party: Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
Representatives of the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr Paul Askins, Geotech International Pty Ltd Pty Ltd
REASONS FOR DETERMINATION
On 27 January 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E09/1694 and E09/1695 (the proposed licences) to Geotech International Pty Ltd 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 proposed licences comprise areas of:
(a)E09/1694 – an area of 168.15 square kilometres located 182 kilometres north west of Yalgoo. It is 100 per cent within the registered claim of the Wajarri Yamatji (WC04/10 - registered from 5 December 2005).
(b)E09/1695 – an area of 347.37 square kilometres located 146 kilometres north of Mullewa. 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 proposed licence E09/1694. E09/1695 is 100 per cent wholly overlapped by Wajarri Yamatji WC04/10 and 95.8 per cent overlapped by Mullewa Wadjari (WC96/93 - registered from 19 August 1996).
On 25 May 2010, Ike Simpson and Others on behalf of the Wajarri Yamatji registered native title claimant (the native title party) made an expedited procedure objection application to the Tribunal in respect of the proposed licences.
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 notification 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. Directions made by Deputy President Sumner on 4 June 2010 included that the Tribunal be provided with contentions and documents: of the State by 13 September 2010; of the native title party by 20 September 2010; and of the grantee party by 28 September 2010.
At the first preliminary conference held on 22 June 2010, the grantee party requested the matter proceed to inquiry on the basis that the grantee wanted to rely on the Regional Standard Heritage Agreement rather than the native title party’s alternative agreement. The native title party and the grantee party had previously communicated by email about options relating to agreements between 28 May and 1 June 2010. The parties accepted compliance dates as set down in directions made by DP Sumner on 4 June 2010 and the Listing Hearing was set down for 7 October 2010.
On 13 September 2010, prior to the Listing Hearing, the native title party requested an extension for direction compliance dates on the basis that additional time was needed to prepare for inquiry. DP Sumner made directions on 14 September 2010 for an extension of time and the Listing Hearing was moved to 18 November 2010.
On 27 October 2010 the native title party requested a further extension for direction compliance dates due to staff shortages in Geraldton. The State agreed to the extension and requested that its compliance dates be extended also. DP Sumner made directions on 2 November 2010 for an extension of time and the Listing Hearing was moved to 16 December 2010.
Staff shortages and difficulties in contacting the traditional owners caused delays in the preparation of contentions and a further request of two weeks was made on 1 December 2010. The State agreed to the request and the grantee did not provide comment. DP Sumner made directions on 3 December 2010 for an extension of time and the Listing Hearing was moved to 6 January 2010. For administrative reasons, on 15 December the Tribunal rescheduled the Listing Hearing to 13 January.
The Government party lodged its contentions and evidence on 25 November and 17 December 2010 respectively. The native title party lodged its contentions and evidence on 16 December 2010. The grantee party representative informed the Tribunal by email on 20 December 2010 that the grantee would rely on the State’s contentions.
The Listing Hearing on 13 January 2011 was attended by the State and the native title party. The grantee party was not available. At the hearing the native title party indicated that more time may be needed to submit further material, but later that day clarified that all material had been submitted, and made a request for the matter to be ‘heard on the papers’, that is, without holding a further hearing.
By email on 14 January 2010 the State agreed that the inquiry be heard ‘on the papers’. At the adjourned Listing Hearing held on 20 January the grantee party also agreed to proceed to determination on the papers. All parties have agreed to the request and I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) the Act).
On 8 February 2011, I was appointed by Deputy President C J Sumner as the Member for the purposes of the conduct of the inquiry.
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), Hon C J Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (as per s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, NNTT WO10/171, [2011] NNTTA 22 (22 February 2011), Hon C J Sumner (‘Tarlpa’) at [10]-[16].
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J 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).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little 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.
Evidence in Relation to the Proposed Acts
The Government party has provided the following documents: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities in the vicinity of the proposed licence site; a report and plan from the Department of Indigenous Affairs Register; a copy of the stamped tenement applications; a copy of the proposed endorsements and conditions of grant; a tengraph quick appraisal; and a statutory declaration from the agent for the grantee party declaring that the State’s Regional Standard Heritage Agreement (RSHA) was sent to the claimant group of the native title party on 8 December 2009.
The Government party documentation establishes that the underlying land tenure on proposed licence area E09/1694 is:
·CPL/31 Wooleen P/L3114/959 – 14.9per cent;
·Recreational and Aerial Landing Ground (Reserve 34206) – 6per cent;
·Vacant Crown Land (No.334) – 14.9per cent;
·Historical lease 394/585 – 1.9per cent;
·Historical lease 394/584 – 4.4per cent;
·Pastoral Lease 3114/512 (MEEBERRIE) – 58.2per cent;
·Pastoral Lease 3114/959 (WOOLEEN) – 25.8per cent;
·Pastoral Lease 3114/582 (NARRYER) – .4per cent; and
·Road reserve – Carnarvon Mullewa Road – <0.1per cent
The Government party documentation establishes that the underlying land tenure on the proposed licence area E09/1695 is:
·Pastoral Lease 3114/947 (BILLABONG) – 43.6per cent;
·Pastoral Lease 3114/796 (NEW FOREST) – 56.3per cent; and
·Road reserve - <0.1per cent.
The Government party documentation reports that there are no Aboriginal communities identified within the area or in the near vicinity of the proposed licences.
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 proposed licence area of E0/1695. The following sites are located within the proposed licence area of E0/1694:
·Site ID 11441 – Balla Rock (artefacts/scatter – permanent register, open access, no restriction) – located in the eastern part of tenement E0/1694;
·Site ID 11873 – Errabiddy Hills (mythological- permanent register, open access, no restriction) – partially located in the western part of tenement E0/1694;
The Government party Quick Appraisal documentation indicates the following as of 11 November 2010 for both proposed licences:
·There are no dead tenements.
·No other tenements are affected.
It does not appear there has been previous mining and/or exploration on either proposed licence.
The grant of the proposed licence E09/1695 will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). In addition, the grant of the proposed licences will be subject to 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 grant of the proposed licence E09/1694 will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). In addition, the grant of the proposed licences will be subject to conditions 5-14:
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
· the grant of the Licence; or
· registration of a transfer introducing a new Licencee,
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on CR34206 RECREATION & AERIAL LANDING GROUND.
8.No interference with Geodetic Survey Station BYRO 3 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
9.No interference with the use of the Aerial Landing Ground and mining thereon confined to below a depth of 15 metres from the natural surface.
In respect to the area designated as CPL 31 in TENGRAPH the following conditions apply:
10.Prior to any ground-disturbing activity, as defined by the Director, Environment, DMP the licensee preparing a detailed program for each phase of proposed exploration for approval of the Director, Environment, DMP. The program to include:
· maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps, drill sites and any other disturbances;
· the purpose, specifications and life of all proposed disturbances;
· proposals which may disturb any declared rare or geographically restricted flora and fauna; and
· techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances.
11.The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the licence to the satisfaction of the Director, Environment, DMP. Such rehabilitation as is appropriate and may include:
· stockpiling and return of topsoil;
· backfilling all holes, trenches and costeans;
· ripping;
· contouring to the original landform;
· revegetation with seed; and
· capping and backfilling of all drill holes.
12.Prior to the cessation of exploration/prospecting activity the licensee notifying the Environmental Officer, DMP and arranging an inspection as required.
13.Prior to carrying out any on-ground activities, the Licensee developing a plan of activities to ensure that electromagnetic emissions from those activities will not interfere with the radio-quiet requirements of the Murchison Radio-astronomy Observatory. The plan shall be submitted to the Australian SKA Coordination Committee’s “Coordinator for Land Management Issues” at the Department of Mines and Petroleum (DMP) for approval by the Director General of DMP.
14.The approved plan to be included with any “Programme of Work” or “Mining Proposal” submitted to DMP for approval under the Mining Act 1978.
The following Endorsements (which differ from conditions in not making the licencee liable to forfeiture of the licence for their breach) will also be imposed in relation to both of the proposed licences:
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 both of the proposed licences 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, C/- Geotech International Pty Ltd, 214 York Street Subiaco WA 6008 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 – tenement E09/1695
The submissions of the native title party provided on 16 December 2010 in relation to WO10/686 tenement E09/1695, include:
a.the Statement of Contentions,
b.the Affidavit of Mr Gavin Egan, member of the Wajarri Native Title claimant group, affirmed on 15 December 2010, and
c.the Affidavit of Sanna Maria Nalder, Anthropologist, affirmed on 16 December 2010.
Mr Egan’s Affidavit is made in the following terms:
Affidavit of Gavin Egan1.I am a member of the Wajarri Native Title claimant group. I am recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area.
2.I have been shown a map of the Tenement E09/1695 by my lawyers from the Yamatji Land & Sea Council (“YLSC”), a copy of which is annexed and marked “A”. I am authorised to speak for the area of Wajarri country affected by the exploration tenement above and know the area quite well.
KNOWLEDGE OF THE TENEMENT AREA
3.I am familiar with the Tenement area and have been handed down the custodial right to speak for and the responsibility to protect the Woodrarrung Ranges area (“the Country”). The whole Tenement area is very important as it is within the Woodrarrung Ranges area. This area is of special importance to the Wajarri people and my family. There are many important sites that can be found in the country such as caves, camping grounds, pathways and landmarks which have dreaming stories that originate from Bompers pool on the Murchison River, to Woodrarrung Ranges and then east to Wilgi Mia Weld Range.
4.I was taught the importance of the country and the Tenement area since four or five years of age, from my grandfathers, father and uncles. They taught me the importance of all the Country specifically the importance of Woodrarrung Ranges.
5.I was taught of many important sites and told to look after the country, which includes the tenement area. My family has traditional responsibility to maintain the heritage of this area.
CURRENT COMMUNITY ACTIVITY
6.My brother and his family visit the area every year, sometimes more, whenever they have the opportunity. I visited and inspected the tenement area with him and YLSC staff on 11th December 2010.
7.My grandfather and father went through the law in this area and has handed down stories about this country to myself and family. We still go hunting around this area and know of many traditional foods and medicines that grow within the tenement area. We respect and try to look out for the sacredness of this area.
8.There are several areas within and around the Tenement that are good hunting. We teach our younger people how to hunt out there and show them how to catch gwiari [goanna], marlu [kangaroo], yalabiddy [emu] and how to track yalabiddy warla [eggs]. This area is important for Wajarri people because it is a place where we can find our traditional food.
9.We still occasionally hunt around the area. The gwiari, marlu and yalabiddy – animals fat can be used in healing balms, if you mix it with the tea tree. Within the Tenements there are lots of Kurara and Mulgas tree that we use to make boomerangs and spears from the branches.
WOODRARRUNG RANGE
10.The Woodrarrung area is very close to the tenement area with part of the Ranges intersecting with the tenement.
11.Woodrarrung range is a very important place where our ancestors used to use the various caves as storage grounds within the tenement and its surrounds and camping grounds all along the Country and within the Tenement. A lot of these storage caves are within the tenement.
PATHWAY
12.In and around the tenement area our ancestors used to use it as a pathway to get to the Weld Ranges to attend ceremonies and collect ochre. The old people say that a red Kangaroo was speared and wounded, hopping all the way from bompers pool to Wilgia Mia Weld Range, with its path going through the southern end of this tenement. The Kangaroo left spots of blood along the way till it reached the Weld Ranges where it is today. The spots to this day are areas rich with red ochre, which you can find in various locations from Bompers pool through to the Wilgi Mia Weld Range.
13.The deposit indicated a pathway which intersects with the bottom of this tenement and was for our ancestors to follow from the surrounding country to Wilgi Mia where more pure ochre was mined.
STORAGE CAVES
14.Our ancestors used to camp and travel all throughout the Woodrarrung range area, including within the tenement. They used to use the various caves that are within and around the tenement to store mainly hunting gear like, spears, boomerangs, shields and food gathering utensils. You can see evidence of this throughout the tenement and I am sure within some caves in the tenement area.
15.My father who is a custodian of the tenement area, took me to some caves and showed me old hunting gear. There are a number of caves all around the tenement that still have sacred artefacts that are important to the Aboriginal people. I would like to see these artefacts, caves and surrounding areas protected as they are the only things left we can show and teach our younger generation. This area is where our ancestors lived; similar to how we gather and live around towns now days.
OTHER SIGNIFICANT SITES
16.Other significant sites that I know of in the area are camping grounds and burial sites. You’ve also got rock chippings, spears, artefacts and scatterings close to all that area.
17.For Wajarri people and my family especially, this area is very important. It’s so significant because there are so many storage caves and camp sites around this area and within the tenement. We have an attachment to this area, we are drawn here and when here, feel relaxed and safe.
18.If you’re not from this area then you wouldn’t know. If you go there without the right Wajarri people, there could be possible ramifications for our family; you need the right guidance and knowledge of the sites to protect you from possible harm.
EFFECT OF EXPLORATION ON SITES
19.The Woodrarrung area is one that is very important to me, my family and the Wajarri people. It is a place that me and my family have been given as custodians to look after from my Father. There are so many important sites out there that I would hate for mining companies to just come and destroy our heritage.
20.As this area has so many important sites, I would expect, at the least, for the mining companies to negotiate with the right Wajarri people that know this country and have been brought up around it. It is a part of me and I have been handed down the knowledge and right to speak for it. I don’t want this area to be touched but if it is, the right Wajarri people should be involved in guiding the Mining companies and having a right to say what shouldn’t be touched.
21.If there is drilling around this area the water bores could get affected and the water levels could go down. This would then affect the natural water tables and water sources around the Woodrarrung ranges and the tenement area.
22.There are also spirits that would be disturbed by Exploration. I have seen spirits that we call jinnagadby ‘feather foots’ [spirit men]. These spirits could affect Wajarri peoples families if the right Wajarri people aren’t consulted and significant sites not protected.
23.It is important that this area is respected with artefacts and sites being saved for our younger generation. If these things are lost they’ll [sic] be nothing left for us or our youth. There should be negotiations to protect these sites.
24.The country is from our ancestors, it is our history and origin all documented on country. These documents need to be preserved and be left to all our younger generations. Without it we won’t have any evidence to show of our origin.
Ms Sanna Maria Nalder’s Affidavit is made in the following terms:
Affidavit of Sanna Maria Nalder
Paragraphs 1-4 relate to the professional qualifications and knowledge of S Nalder.5.I have conducted desktop research into the cultural and spiritual importance of the sites located within the tenement E09/1695 near Mount Aubrey (“Tenement”).
6.I attended a field trip on 11th – 12th December 2010 with Traditional Owners who are knowledgeable of the area. I conducted interviews with Gavin Egan, Alan Egan and Michael Ryan, and visited sites of cultural significance in and around the tenement.
7.Gavin Egan and Alan Egan are recognised by the larger Wajarri Yamatji community as persons with authority to speak for the tenement area and as possessing knowledge about sites within the tenement area.
8.There are a number of rocky breakaways containing caves within and outside of the tenement. Gavin and Alan Egan’s father Joe Egan had told them about these caves which were used for repositories for hunting tools such as spears, boomerangs and shields. They were stored away from flat flooding areas along the creeks, where people used to camp. Joe Egan had shown Gavin some of the artefacts stored in the caves. Next to a creek bed within the tenement we found evidence of a camp: flakes and a grinding base.
9.Within the tenement is also an area called Jirungari ‘where the snake lay down’, ‘Spirit Country’. Alan mentioned that the spirit country covers a larger area where the ‘featherfoot’ [spirit men] come. Featherfoot are malevolent spirits that move around without leaving tracks.
10.Alan Egan and Gavin Egan spoke about a Red Marlu dreaming story that intersects with the southern parts of the tenement. It is a Kangaroo dreaming story where the Kangaroo got speared and wounded by a great kangaroo from Northampton, Nanda country. The wounded kangaroo hopped along the area from Bompas to the Weld Ranges leaving deposits of ochre where it bled. These deposits were said to show a path to aboriginal people to follow to the Weld Ranges, and according to Gavin and Alan, it runs across the tenement.
11.The story is a variation of a dreaming recoded [sic] by Denis Gray in 1985 that links the area with the Two Brothers Dreaming: the brothers encountered a kangaroo at Yallalong Station and chased it. While chasing, it weaved through countryside leaving a trail behind, creating Murchison River. One of the brothers hit the kangaroo which cause it to start bleeding and it’s blood created ochre deposits. When it got to Mileura Station, he turned south and hopped to Wilgie Mia and died there, creating the large ochre deposit. Rory O’Connor in his 1984 survey report had received a story from Ike Simpson and G. Boddington in which the two brothers were camping at Errabiddy Hill when they saw the red kangaroo travelling east. They followed him and speared him, and where he bled and died, he formed ochre deposits.
12.Gavin Egan also spoke about the importance of a permanent waterhole [bimara] that belongs to the Egan and McGibbon family, and which is located south east of the tenement area.
13.The permanent bimara is an important aspect of Wajarri people’s connection to country. According to Wajarri spiritual beliefs, the permanent waterholes are place where the water snake currently rest and the responsibility of looking the waterhole is given to and transmitted within the family who come from that part of the country.
14.If anything would happen in the tenement area, like mining, it would be a big concern, because it is spirit country. There is also concern about the salinity and water levels in case mining would place demand for more groundwater. If there was any development in the area. [note: the highlighted emphasis is in the original document]
15.The Law and custom places the responsibility of looking after the country and important sites on the custodians, whose duty it is to pass on the country and the knowledge, undisturbed, to the next generation. Dreaming stories, places and camp grounds hold special importance in Wajarri culture as these places are associated with the creation of the physical features of the landscape and passing on the knowledge, stories and Law. The country and knowledge, in this sense, encompasses physical, mythological, social and cultural value to the Wajarri Yamatji people.
16.As the physical, mythological, social and cultural are all interconnected, any physical disturbance to a significant site is also harming to the spirit and the wellbeing of the Wajarri Yamatji people. The Wajarri people are conscious of their obligation to look after their country, and that damage or disrespect for a site causes illness and even death in the community, whose responsibility it is to look after the place.
17.It is my belief that these sites referenced are sites of cultural significance to the Wajarri Yamatji people.
18.After consulting with the Traditional Owners and previous research, it is my expert opinion that any disturbance in this area would have a negative impact on the traditional culture and beliefs of the Wajarri Yamatji people.
Mr Gavin Egan is a named applicant on the native title claim. I accept that Mr Egan has authority to speak for country on behalf of the native title party and particularly the area of proposed tenement E09/1695. Mr Egan states that the whole proposed licence area E09/1965 is very important as it is within the Woodrarrung Ranges area which is of special importance to the Wajarri people and his family, and that there are many important sites in the country such as caves, burial sites, camping grounds, pathways and landmarks which have dreaming stories that originate from Bompers pool on the Murchison River, to Woodrarrung Ranges and then east to Wilgi Mia Weld Range. He states that his family still hunt around the area and know of many traditional foods and medicines that grow within the tenement area and that caves within and outside of the tenement area were used for repositories for hunting tools which were stored away from flat flooding areas along the creeks, where people used to camp. Mr Egan is concerned that drilling around Woodrarrung ranges and the tenement area could affect the water bores and that water levels could decrease which could then affect the natural water tables and water sources. Mr Egan believes that there are also spirits called jinnagadby ‘feather foots’ [spirit men] that would be disturbed by Exploration.
The Affidavit of Ms Sanna Maria Nalder, Anthropologist, is provided on the basis that it provides expert evidence as to the cultural and spiritual importance of the sites located within tenement E09/1695 located near Mount Aubrey (which is recorded on the Tribunal’s geospatial mapping as DIA site 19687 which is about 5 kilometres from the boundary of this proposed licence. Note that DIA sites 19684, 19683, 19680 and 19681 are also recorded as being within 15 kilometres of the boundary of this proposed licence). Ms Nalder provides explanation of the significance of both the Weld Range region and the area surrounding Wilgie Mia, located approximately 100 km to the east of the tenement, through stories of Dreaming Tracks and songlines which pass through the area and tell of the creation of ochre deposits. It is consistent with the evidence given by Mr Egan.
Evidence provided by the native title party – tenement E09/1694
The submissions of the native title party provided on 16 December 2010 in relation to WO10/693 tenement E09/1694, include:
d.the Statement of Contentions, and
e.the Affidavit of Sanna Maria Nalder, Anthropologist, affirmed on 16 December 2010.
Ms Sanna Maria Nalder’s Affidavit is made in the following terms:
Affidavit of Sanna Maria Nalder
Paragraphs 1-7 relate to the professional qualifications, knowledge and research of S Nalder.
8.I found several references to the mythological significance of the Errabiddy Hills. Research recorded by Denis Gray (1985) and Rory O’Connor (1984) documents dreaming stories of the cultural significance of Errabiddy hills and its connection to surrounding area.
9.According to the Two Brothers myth, the two brothers were travelling along the Murchinson [sic] River and were killed by a Mondong [devil]. After killing the brothers, the mondong ran to Errabiddy Hills. The father of the boys went looking for them and asked a whirl-wind to help him. The whirl-wind blew parts of one of the boy’s bones together and the father asked another whirl-wind to do the same with the other boy. The father and brothers knew that the only way to kill the devil was with lightning, so they turned themselves into clouds and created a storm over Errabiddy Hills. They threw lightning bolts at the mondong, who ran northwards on the hills seeking shelter. The mondong finally died when all three threw lightning bolts together at him. The northernmost pointed hill is the body of the mondong which is a DIA registered site.
10.O’Connor in his 1984 survey report records a continuation of the Two Brothers myth in which the two brothers were camping at Errabiddy Hill when they saw the red kangaroo travelling east. They followed him and speared him, and where he bled and died, he formed ochre deposits.
11.Denis Gray (1985) recorded a variation of the Two Brothers myth: the brothers encountered a kangaroo at Yallalong Station and chased it. While chasing, it weaved through countryside leaving a trail behind which is said to be the Murchison River. One of the brothers hit the kangaroo, which caused it to started [sic] bleeding, with its blood creating ochre deposits. When it got to the Mileura Station, it turned south and hopped to Wilgie Mia and died there, creating the large ochre deposit.
12.According to Ross Boddington, there is a law ground just north of the DIA registered artefact scatter site – Balla Rock. This places the law ground within the Tenement area.
13.Another law ground, Hungry Well, and which is the ‘same as the Balla Rock one’, according to Ross, is located just south of the south westernmost corner part of the tenement.
14.Because of rough terrain, we were unable to visit Hungry Well law ground area. Law was practiced at Hungry Well in the 1950s and Ross participated in the ceremony.
Cultural Significance
15.Aboriginal Dreaming stories are placed in the mythical past during which the geological features we can see today were created by the ancestral beings. The stories and songs traverse vast area, one group picking up where the other leaves it, each responsible for maintaining and protecting their section of the Dreaming, song and associated places on the country within their boundaries. This creates the cultural landscape and the basis of the spiritual significance of all country.
16.The Law and custom also places the responsibility of looking after the country on the custodians, whose duty it is to teach and pass it on, undisturbed, to the next generation. The country and knowledge, in this sense, encompasses physical, mythological, social and cultural value to the Wajarri Yamatji people. The Wajarri Yamatji take their responsibility seriously and are highly aware of who is responsible for a particular area in their native title claim area.
17.As the physical, mythological, social and cultural are interconnected, any physical disturbance to a significant site is also harming to the spirit and the wellbeing of the Wajarri Yamatji people.
18.It is my belief that these sites referenced are sites of cultural significance to the Wajarri Yamatji people. The Two Brothers myth is well known in the Murchison-Gascoyne region.
19.After consulting with the Traditional Owners and through desktop research, it is my expert opinion that any disturbance in this area would have a negative impact on the traditional culture and beliefs of the Wajarri Yamatji people.
The native title party submitted the Affidavit by Ms Sanna Maria Nalder, Anthropologist, on the basis that it provides expert evidence as to the cultural and spiritual importance of the sites located within tenement E09/1694 located near Errabiddy Hills. Two sites registered with DIA are located in the proposed licence area (11873 and 11441). It appears that site 11873 is likely to be the ‘northernmost pointed hill’ where ‘the body of the mondong’ lies (at paragraph 9 of Ms Nalder’s Affidavit). Site 11441 is a DIA registered artefact scatter site Balla Rock and Ms Nalder states that a law ground is located just north of this, within the proposed licence area (at 12). She states another law ground, Hungry Well, is located just south of the south westernmost corner part of the proposed licence (at 13). This is recorded on the Tribunal’s geospatial mapping as being DIA site 19681, and two other sites, 11501 and 11042, are approximately 10 kilometres from the boundary of this licence site. The significance of Wilgie Mia, located approximately 110 km to the east of the proposed licence, is explained through the Two Brothers myth which tells of the creation of ochre deposits.
The evidence from Ms Nalder is uncontested and I accept it. She swears she is a qualified anthropologist with experience in native title anthropology.
Community or social activities (s 237(a))
I adopt the following findings from Tarlpa.
·History and interpretation of s 237(a) as amended (paras [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (para [75]). D P Sumner has made it clear (para [66]) that “the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted”.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237a (paras [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (paras [85]-[86]).
The Government party contends that the grant of the proposed exploration licences is not likely to interfere directly with the carrying on of the community or social activities of the native title party because:
·there are no Aboriginal communities situated on the proposed licence areas,
·s 63 of the Mining Act 1978 (WA) deems that the grant of the tenements is subject to certain conditions being fulfilled,
·s 20(5) of the Mining Act 1978, imposes conditions and restrictions on exploration activity on pastoral leasehold land, and
·in relation to the land subject of Reserve No 34206 (for proposed licence E09/1964), s 24 of the Mining Act 1978 provides that mining on reserve land requires the written consent of the Minister.
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]). In this matter, there are three pastoral leases underlying tenement E09/1694 and two pastoral leases underlying tenement E09/1695.
The evidence of Mr Egan in relation to tenement E09/1695 is that he is recognised under Wajarri law as speaking for and knowing the sites and traditional stories of the proposed licence area. His address is recorded as Geraldton and he states that there are many important sites, including caves, camping grounds, pathways and landmarks which are located within and around the tenement area and his family has traditional responsibility to maintain the heritage of area around the Woodrarrung Ranges (at 1, 3 and 5). His evidence indicates that his brother and family do not visit the area frequently, only every year or whenever possible and that they still hunt in the area and know the many traditional foods and medicines in the tenement area (at 6-7).
Mr Egan further states in relation to tenement E09/1695 that younger people are taught how to hunt and catch goanna, kangaroo, emu and track eggs and that the place is important because it is a source of traditional food. The animal fats when mixed with tea tree can be used in healing balms. Also the Kurara and Mulga trees are used to make boomerangs and spears. Mr Egan asserts that drilling in the tenement area could affect bores and natural water table levels and it could also upset spirit men ‘feather foots’(jinnagadby) who live in the tenement area (at 8, 9, 21 and 22).
The native title party contends (at paragraphs 34, 35 and 37 of their contentions) that Woodrarrung Range is an important place for law and culture as it includes burial places, camping and living areas, pathways, spirits hunting and gathering grounds and water places. The native title party contends that there are an extensive number of unregistered sites in the Woodrarrung Ranges within which the tenement is located.
I note that the references to the teaching, hunting and collecting activities which take place in relation to the proposed licence area E09/1695 are not detailed as to where specifically the activities are carried out within the tenement area, how frequently they occur (apart from in general terms), or who undertakes the activities (apart from Mr Egan’s family).
In relation to proposed licence E09/1694, Ms Nalder provides some mythological information and notes the mythological significance of the Errabiddy Hills and other sites which are on or near the proposed licence site, as outlined elsewhere in this determination. The existence of law grounds within and close to the southern portion of the proposed tenement would indicate that some community or social activity is likely to take place in the area occasionally, however, details of the activity, frequency or who are the participants is not provided. Any references to such activities are from the past, including those held in the 1950’s.
The Tribunal has found, on numerous occasions that, because of its relatively limited and temporary nature, exploration activities are not likely to directly interfere with native title party community or social activities, except in an incidental and insubstantial way. However, each case must be evaluated on its merits, taking account of the particular facts.
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 either proposed licence, which are likely to be affected by the grant of the tenements. I find that the grant of either 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 significance (that is, more than ordinary) to the native title party in accordance with their traditions.
The Register kept under the AHA shows there are no DIA registered sites within E09/1695 and five registered sites (19684, 19683, 19687, 19680, 19681) within 15 kilometres of that proposed licence. There are two registered sites within the proposed licence area for E09/1694, and three registered sites (11042, 19681 and 11501) within 10 kilometres of that proposed licence. This does not mean there may not be other sites or areas of particular significance over the tenement area or in the vicinity, and the Register does not purport to be a record of all Aboriginal sites in Western Australia. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party contentions (at 5-6), for both proposed licences, rely on ss 5, 17 and 18 of the AHA to contend that the grant of the tenements is unlikely to interfere with areas or sites of particular significance. The State notes that the grantee party has executed the Regional Standard Heritage Agreement (RSHA) so that protections are afforded to the objectors which minimise the risk of any major physical disturbance, although I note the native title party has not accepted the RSHA. Also noted is the contention that the grantee acting lawfully and in accordance with endorsements and conditions on the proposed licences will not cause what is considered to be a major physical disturbance by the standards of the Australian community.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (for example, 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.
In relation to proposed licence E09/1695, Mr Egan states in his Affidavit that there are many important sites, including storage caves, burial sites, camping grounds, pathways and landmarks which have dreaming stories that are located within and around the proposed licence, including the ochre sites along the pathway to Wilgie Mia and Weld Range. Mr Egan states that the Woodrarrung Range area partly intersects the proposed licence and that the Range is a very important place where ancestors used the caves within the area as storage grounds for hunting gear like spears, boomerangs, shields and food gathering utensils (at 10-11 and 14). Mr Egan states that his father, who is a custodian of the area, took him to some caves and showed him old hunting gear and that there are a number of caves all around the area that still have sacred artefacts that need to be protected (at 15). The evidence of Mr Egan is corroborated by the evidence of anthropologist Ms Nalder to the extent that the Egan family has told Ms Nalder their stories and Ms Nalder has visited sites of cultural significance in and around the proposed licence area.
Mr Egan, in his evidence for E09/1695, provided some information about the Woodrarrung Range storage caves and the pathway to the Weld Ranges that intersects with the bottom of the proposed licence. The native title party asserts in their contentions for E09/1695 (at paragraph 15) that the ‘tenement area’ is ‘site rich’. The native title party goes on to suggest (at 12) that ‘The tenement is also located in a broader area of particular significance to the native title party’. I accept that the Woodrarrung Range, in general, is an area of particular significance to the native title party and contains a number of registered sites that are outside of the tenement area but which are significant, as is the pathway to ochre relating to the Weld Range and Wilgie Mia. The question that I must address in this matter is whether, in the circumstances, the proximity of those sites of particular significance to the native title party and the general nature of the area within the Woodrarrung Range and other sites stated as being significant by the native title party, 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 also take into account.
In relation to proposed licence E09/1694, the Affidavit of Ms Nalder provides mostly mythological information and notes the mythological significance of the Errabiddy Hills (at 8). Errabiddy Hills contains a registered site (11873) located within the proposed licence. Ms Nalder states that there is a law ground just north of the DIA registered artefact scatter site (11441) called Balla Rock, which places the law ground within the tenement area (at 12). Reference is also made to another law ground, Hungry Well (19681), also a registered site located just south of the south westernmost corner part of the tenement. The native title party asserts in their contentions for E09/1694 (at 12) that the tenement area is rich in sites and includes two DIA registered sites. The native title party also states (at 12) that ‘The tenement is also located in a broader area of particular significance to the native title party’.
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 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 sites both within, and nearby, the proposed licence areas 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 proposed licence areas, 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 (at paragraph 5(e)) in the Government Statement of Contentions for each proposed licence 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 the native title party’s contentions (at 21) 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.
The Government party contends in its submissions 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], and the grantee party’s attitude to the RSHA: Champion at [30-[34]. 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].
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 grantee party has executed the RSHA and has forwarded it to the native title party, and I believe that the provisions of the RSHA and the AHA will provide protection to any sites on or near these proposed licences sites.
The grantee party is now on notice that sites as outlined in this determination, and in the evidence of Mr Egan and Ms Nalder, exist on or near the proposed licence sites.
The proposed licences, if granted, will be subject to a range of conditions imposed by the Government party, including a requirement that the grantee party give the native title party an opportunity to enter into the RSHA. 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 sites located within or in close proximity to the two 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))
As the Tribunal has noted, the starting point and precondition of any inquiry into major disturbance under this section of the Act 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]).
Mr Egan provides evidence in relation to proposed tenement E09/1695 and suggests (at 21) that drilling could adversely affect water bores and natural water tables. Mr Egan is also concerned that exploration could disturb the spirits that his people call jinnagadby ‘feather foots’ [spirit men]. Mr Egan refers (at 23) to artefact sites that should be preserved and the need for negotiations to ensure protection. Ms Nalder (at 12-16) places a permanent waterhole (bimara) south east of the tenement area and states that permanent waterholes are an important aspect of connection to country because it is where the water snake rests, and if mining was to occur it would be a big concern because it is spirit country. Ms Nalder (at 14) also raises concerns about salinity and water levels as mining could place demands for more groundwater.
Ms Nalder provides evidence in relation to proposed tenement E09/1694 and (at 17) states that the physical, mythological, social and cultural are interconnected and that any physical disturbance to a physical site is also harming to the spirit and the wellbeing of the Wajarri Yamatji people.
In relation to the question of the general impact of mining, there is insufficient evidence for me to conclude any negative inference against the grantee party. Further, there is little 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, 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 v Northern Territory (2002) 169 FLR 1
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.
The government party’s contentions (at 25) includes that the grantee party has executed the Regional Standard Heritage Agreement (RSHA) so that protections are afforded to the objectors which minimise the risk of any major physical disturbance.
Determination
The determination of the Tribunal is that the grant of exploration licences E09/1694 and E09/1695 to Geotech International Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
17 March 2011
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