John Graham & Ors on behalf of Ngadju/Western Australia/Mulciber Metals Pty Ltd
[2011] NNTTA 165
•17 August 2011
NATIONAL NATIVE TITLE TRIBUNAL
John Graham & Ors on behalf of Ngadju/Western Australia/Mulciber Metals Pty Ltd, [2011] NNTTA 165 (17 August 2011)
Application No: WO10/1154
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
John Graham & Ors on behalf of Ngadju (WC99/2) (native title party)
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The State of Western Australia (Government party)
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Mulciber Metals Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 17 August 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 not 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:Butcher Cherel and Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Monadee andOthers v Western Australia and Another (2003) 174 FLR 381; [2003] NNTTA 38
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Representatives of the Mr Dante Mavec, Goldfields Land and Sea Council
native title party:
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Dennis Jacobs, Department of Mines and Petroleum
Representative of the
grantee party: Mr Dennis Hawtin
REASONS FOR DETERMINATION
On 5 May 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E63/1381 (‘the proposed licence’) to Mulciber Metals Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
The proposed licence comprises an area of 81.47 square kilometres located 100 kilometres east of Norseman in the Shire of Dundas. It is 100 per cent within the registered native title claim of the Ngadju people (WC99/2 – registered from 28 September 2000), who are the native title party in these proceedings. On 30 August 2010, the native title party lodged with the Tribunal an objection to the application of the expedited procedure.
The registered claim of the Narnoobinya Family Group (WC97/40 – registered from 4 June 1997) also overlaps the proposed licence by 100 per cent, but these claimants have not lodged an objection in relation to the proposed licence. On 9 April 2010, the grantee party declared they had offered to enter into a Regional Standard Heritage Agreement (RSHA) with the Narnoobinya.
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 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. Directions were made by the Hon C J Sumner on 10 September 2010, and following a request to amend the directions on 4 January 2011, final orders were that the Tribunal be provided with contentions and documents of the: Government party by 24 January 2011; native title party by 31 January 2011; and grantee party by 7 February 2011.
The Department of Mines and Petroleum (‘DMP’) provided documents on 8 December 2010 and the Government party lodged its contentions and evidence on 23 December 2010. On 31 January 2011, the native title party lodged its contentions and evidence on 31 January 2011, including sworn affidavits of Ms Dorothy Dimer, Mr John Walter Graham and Mr Warren John Dimer.
The grantee party did not provide formal contentions or any evidence in this matter.
At the listing hearing on 10 February 2011, all parties agreed that this matter could be determined ‘on the papers’ (that is, without holding a hearing). I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act). On 24 June 2011 I was appointed by Hon C J Sumner as the Member for the purposes of conducting the inquiry.
Legal principles
Section 237 of the Act provides:
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.
The native title party contentions and evidence are formulated in relation to s 237(b) only, and as such, this determination will consider only that limb of s 237, assuming that the act is not likely to interfere directly with the carrying on of community or social activities of the native title party (s 237(a)), nor is likely to involve a major disturbance to land or waters in the area concerned (s 237(c)).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v 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 Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 at [10]-[16].
Evidence in relation to the proposed act
Government party documents include:
·A statement of contentions;
·A Tengraph plan with topographical detail, tenement boundaries and historical land tenure;
·A report and plan from the Department of Indigenous Affairs (‘DIA’) Sites Register;
·A copy of the tenement application and proposed endorsements and conditions of grant;
·A statutory declaration from the grantee party relating to the offer to enter into a RSHA with the Narnoobinya people; and
·A Tengraph Quick Appraisal.
Government party documentation establishes the following notable underlying land tenure on the proposed licence (together with the percentage overlap with the proposed licence):
·A Mineralisation Zone (MZ 0000002) (100 per cent);
·A Pastoral Lease (FRASER RANGE) (82.2 per cent); and
·Vacant Crown Land (17.8 per cent).
DIA documents provided by the Government party show that there are no Registered Aboriginal Sites or Other Heritage Places within the proposed licence.
A map prepared by the Tribunal’s geospatial services on 17 February 2011 shows that there are no Aboriginal communities within the proposed licence area, and that there are a number of DIA Sites within approximately 5-10 kilometres of the proposed licence southern boundary including Registered Sites 1337 and 1286 and Other Heritage Places 22125, 22124, 21991, 21990 and 2876. These sites are predominantly Artefacts/Scatter sites, with 22125 and 22124 being Skeletal material/Burial sites (and 22125 having the additional descriptor ‘Massacre’).
The list of dead tenements indicates four had been granted, all between 1995 and 1998, with their surrender or expiry occurring between 1998 and 1999. There do not appear to be any live licences or current exploration or mining activity on the proposed licence. In terms of services affected, according to DIA materials there are four tracks and two fence lines on the proposed licence.
The grant of the proposed licence 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). There are two further conditions to be imposed:
‘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 mechanical 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 licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.’
According to documents provided by the Government party, these conditions will regulate the exploration activities on the current proposed licence site.
According to Government party documents, the following two endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for their breach) will be imposed:
‘1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder;
2.The licensee’s attention is drawn to the Environmental Protection Act 1986 (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.’
Government party contentions (at 5(f)) also state that a condition will be imposed in the following terms:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by Narnoobinya, the applicants in Federal Court application no. WAD6170 of 1998 (WC97/40), such request being sent by pre-paid post to reach the Licensee's address, PO Box 1760 West Perth WA 6872 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of Narnoobinya the Regional Standard Heritage Agreement endorsed by peak industry groups and the Goldfields Land and Sea Council.’
I note the State refers to Narnoobinya rather than Ngadju, who is the native title party in the current matter.
Native title party evidence
The material provided by the native title party includes contentions, and affidavits of Ms Dorothy Dimer (sworn on 28 January 2011), Mr John Walter Graham and Mr Warren John Dimer (both sworn on 29 January 2011).
The affidavit of Ms Dorothy Dimer is made in the following terms:
‘I, Dorothy Dimer, of 96 Sylvester Street, Coolgardie, in the State of Western Australia, Retired, being duly sworn, make oath and say as follows:
1.My name is Dorothy Dimer. I am 81 years old.
2.I am a Marlpa person and a member of the Ngadju group. Marlpa and Ngadju are two different names for the same people.
3.I am Marlpa because my ancestors are Marlpa. My father, Ngurni (Dick Donaldson), was Marlpa. So was his mother, Raalinya Polly
4.I am the only one of Dick Donaldson’s children still alive. Dick Donaldson was the senior law man for the Fraser Range area while he was alive. He has passed down knowledge to me. I have special understanding of the country at Fraser Range, which gives me authority to speak for our important sites.
5.I lived at Fraser Range in the 1950s for about three years. I periodically visited Fraser Range with my father, and whenever we were there he would teach me about the country and the sacred sites there.
Areas or sites of particular significance
6.I have seen a map of the proposed tenement E63/1381. I know of two important sites to the Marlpa people that are in the tenement.
7.The first site is at a breakaway inside the proposed tenement, to the west and slightly south of Yardilla Tank. There is ochre there and Dreamtime ceremonies are done there.
8.This site is sacred, and nobody but law men (initiated men) or their guests can go near it. If anyone interferes with it by going there without permission they could wreck the site and destroy the Dreamtime story for that area.
9.I’m not allowed to know what the story is because I’m a woman, but my father told me about this place and how important it is.
10.The second site is just down the road from the breakaway, still in the proposed tenement.
11.It is a place where you can get fresh water. There is a gnamma hole (rockhole) that has clear fresh water in it. It is covered over with a rock for a lid. There is a claypan nearby that has fresh water that has a taste in it from the bark and leaves. Some Marlpa prefer water from the gnamma hole and some prefer it from the claypan.
12.It is a special place and the water sources have a Dreamtime story but I’m not allowed to know what it is because I’m a woman. This place is part of our ancestor’s heritage because it is where our people used to camp. The women would camp at a distance and the law men would take them to collect water.
13.Nobody can go there without a law man’s permission, not even Marlpa women. People need to respect this area by leaving it alone, not taking anything from it, and not damaging the rocks.’
The affidavit of Mr John Walter Graham (also known as Mr Danny Graham) is made in the following terms:
‘I, John Walter Graham, of 188 Fisheries Road, Condingup, in the State of Western Australia, Farmer and Dogger, being duly sworn, make oath and say as follows:
1.My name is John Walter Graham, but I am known as Danny Graham. I am 61 years old.
2.I am a Marlpa person and a member of the Ngadju native title claim group. Marlpa and Ngadju are two different names for the same people.
3.I am also an applicant for the Ngadju claim.
4.I am Marlpa because my ancestors are Marlpa. My father, Didla Graham, was Marlpa. So were both of his parents, Maggie and Jumbo. They are apical ancestors for the Ngadju claim.
5.I am one of the oldest living Marlpa people, and I have had knowledge handed down to me from my ancestors and other old Marlpa people who were my elders, which gives me authority to speak for our important sites.
6.Fraser Range is a special part of Marlpa country. I know the land around Fraser Range very well. As a child I would visit Fraser Range during the school holidays. I lived and worked all over Fraser Range for about ten years from the late 1960s. I was manager of the station for some of that time.
7.I still go to Fraser Range to camp and for holidays, because it still feels like home out there.
Areas or sites of particular significance
8.I have seen a map of the proposed tenement E63/1381. I know that area very well and I know of two important sites to the Marlpa people that are in the tenement.
9.Attached to this affidavit and marked “JG1” is a map, where I have drawn circles marking where the sites are. One is near the old Yardilla Dam and the other is near “Coolgardie Corner”, the fence between Peters Tank Paddock and Yardilla Paddock.
10.These sites are where the Marlpa people who used to work on the station would camp. They were doing this since before I was born. When I was a kid, I saw Marlpa people being born at the camps.
11.There are kurti and jinga (spirits) around at these places. There are good spirits around, and bad spirits around. There are also min-min lights. A min-min light is the spirit of a lost child on Marlpa country looking for its parents, or it might be there because something happened or someone is buried there.
12.Any clearing or drilling at these sites will damage them for the Marlpa people. This will destroy our culture and will make the bad spirits angry. They might make the miners have accidents.
13.All of Fraser Range is of special importance to the Marlpa people because so many of our ancestors lived around the area. Our history is all over Fraser Range. Miners need to talk to us so we can show them how to behave properly, and how to respect our culture, our land and our sacred sites.’
The affidavit of Mr Warren John Dimer is made in the following terms:
‘I, Warren John Dimer, of 5 Muresk Close, Esperance, in the State of Western Australia, Farm Hand, being duly sworn, make oath and say as follows:
1.My name is Warren John Dimer. I am 46 years old.
2.I am a member of the Ngadju native title claim group.
3.I am Ngadju because my ancestors are Ngadju. My father, Ollan Dimer was Ngadju, and so is my mother, Dorothy Dimer, through her father Dick Donaldson.
4.I have authority to speak about the sites I talk about in this affidavit because I have had the knowledge passed down to me by my elders, and they are now deceased.
5.I have visited Fraser Range a number of times with other Ngadju to hunt and to learn about the sacred sites in the area.
Areas or sites of particular significance
6.I have seen a map of the proposed tenement E63/1381. I know about some massacre sites in that area.
7.These sites are where a lot of Ngadju were killed in the past. I was told by my cousins, Clive and Kevin Rule, who are both now deceased, that there were three or four times when up to a dozen to twenty Ngadju were killed. They were shot by white settlers, and then the bodies were burned where they were shot. Then later they moved the bones and buried them in a big grave.
8.The area where this happened is northwest of Peter’s Dam, within the proposed tenement, in the flat country behind some small rocky hills.
9.We have to stay away from areas where a lot of Aboriginal people died, because they are very taboo. There are a lot of wild spirits hanging around these places. White people should stay away from these places as well.
10.One time I stayed out too late around these areas. When it got dark the car battery just went flat, and the car stopped working. We heard noises like a big herd of cattle moving all around the car, with branches snapping in the thicket around us. We lit a fire to keep warm overnight, and in the morning I looked all around but there were no tracks and the bush wasn’t disturbed. It was a spirit that stopped the car and made all the noises.
11.It would be very wrong for a miner to dig or drill in a massacre site. The sites need to be found and a monument placed so that what happened can be recognized and the sites can be respected. This might calm down the bad spirits there.
12.The bones of the people who were massacred would be in the tenement as well and they should not be disturbed. They are our ancestors.’
All of this sworn evidence is uncontested and I accept that each person has the authority to speak on behalf of the native title party.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated, DIA documentation shows no registered sites within the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on: relevant aspects of its regulatory regime under the Mining Act (including s 63); the AHA (including ss 5, 17, 18); the standard conditions to be imposed on exploration licences; and the additional conditions/endorsements to contend that there is not likely to be interference with sites of significance.
The grantee party is silent on its intentions, having provided no evidence or contentions in relation to this matter. The Government party contentions in relation to s 237(b) indicate that it accepts the Tribunal may consider the evidence as to ‘what extent the grantee party will go in ensuring that the risk of interference is minimised’ (at 23). In this matter, there is no evidence in this regard, apart from the Government party’s regulatory regime and the RSHA executed in favour of the Narnoobinya.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has often 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 Ors on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The sworn affidavit of Ms Dimer outlines her credentials in relation to being able to speak for the area and ‘important sites’ (at 2-4). Mr Graham outlines similar information in relation to ‘important sites’ (at 2-7). Mr Dimer refers to his authority to speak ‘about the sacred sites in the area’ (at 2-5). This suggests the deponents are referring to sites of more than ordinary significance, or those of particular significance.
Ms Dimer states she knows of two ‘important sites’ to the native title party that are in the proposed licence (at 6). She describes one site, containing ochre and where Dreamtime ceremonies are conducted, as being ‘to the west and slightly south of Yardilla Tank’. Ms Dimer is unable to give detailed information as she states it is for law men (at 7-9). She describes the second site as being ‘just down the road’ from the first site, and as a ‘special place’, which has water, and which once again has Dreamtime significance which requires a law man’s permission to enter (at 10-13).
Tribunal mapping and DIA materials show there is a site (1337) south east of Yardilla Tank, but this does not refer to ochre or specific law areas, which suggests the sites Ms Dimer attests to are not on the DIA record. Yardilla Tank itself is approximately one kilometre outside of the proposed licence, but Ms Dimer clearly states the actual sites which are south west of the Tank ‘are in the tenement’ (at 6). Ms Dimer can speak about men’s areas as she states her father was the senior law man for the Fraser Range area and he passed down knowledge to her which gave her a ‘special understanding of the country at Fraser Range’ (at 2-4). I accept that these sites are sites of particular significance to the native title party.
Mr Graham states he still goes to the area to camp and for holidays ‘because it still feels like home out there’ (at 7). I appreciate the area is of significance to Mr Graham and to the native title party – I also need to explore further the issue of sites of particular significance, and then examine whether the protective regime is sufficient to make it unlikely that there will not be interference with these sites. Mr Graham refers to two ‘important sites’ on the proposed licence, and has provided a map annexed to his affidavit by way of demonstration. He states he has drawn ‘circles’ marking where the sites are (at 9), although I can only clearly make out one hand drawn circle on the map, which shows an area that falls approximately half within the proposed licence, and half outside, in the south eastern corner. Nevertheless, his written descriptions are sufficient to place the sites, they being:
·Near the old Yardilla Dam (at 9); and
·Near ‘Coolgardie Corner’ (the fence between Peters Tank Paddock and Yardilla Paddock) (at 9).
Mr Graham states these are old camp sites, where children were born, and which contain spirits (kurti, jinga and min-min lights) (at 10-11). The Yardilla Dam site could be 1337, which DIA describes as including a camp/water source, and that site, and the Dam, are approximately 5 kilometres east outside the border of the proposed licence. The Coolgardie Corner site appears to overlap the proposed licence at a south east corner and there do not appear to be any associated DIA recorded sites in that area.
Mr Dimer states that there are massacre sites in the area where, in the past, members of the native title party had been shot by white settlers and then burned, and then moved to a ‘big grave’ (at 6-7). He locates this area north west of Peter’s Dam within the proposed tenement ‘in the flat country behind some small rocky hills’ (at 8). He states these areas are ‘very taboo’ with ‘wild spirits’ (at 9). He states the ‘sites need to be found and a monument placed so that what happened can be recognised and the sites can be respected’ (at 11). Again, there do not appear to be any DIA recorded sites associated with this general location, which does appear to be on or near the southern border of the proposed licence. Mr Dimer attests to the massacre site being ‘within the proposed tenement’ (at 8, and see also 6).
Certainly, this sworn evidence indicates the proposed licence contains areas which are more than ordinary significance, and of particular significance, to the native title party.
I must now consider whether the intentions of the grantee party, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance.
I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA, and they have executed an RSHA, although not with this native title party.
However, the uncontested evidence of the native title party is compelling in that the proposed licence contains areas of particular significance to the native title party relating to massacre and burial sites, sites relating to spirits, and men’s ceremonial sites. This is supported by the native title party contentions, which outline the native title party view on the ineffectiveness of the Government party site protection regime. They refer to Monadee andOthers v Western Australia and Another (2003) 174 FLR 381; [2003] NNTTA 38 at [13], stating there are a number of issues the Tribunal can take into account in deliberating s 237(b), including the relevant legislation, the particular sacredness of the area/site, the nature of the proposed exploration activities and any other protections offered.
The grantee party has not offered any assistance to the Tribunal in relation to the nature of their proposed activities, and in this matter, I am not confident that the regulatory regime will operate to avoid the likelihood that sites of particular significance may be interfered with, particularly those outlined in the native title party affidavits which have not been recorded by the DIA. I am of the opinion that this is a case where the negotiation process available under s 31 of the Act should take place to avoid the likelihood of interference with sites of particular significance on this proposed licence. The sites of particular significance which have been stated to exist on the proposed licence area, which may or may not be on the public record, means there is a real risk of interference with them despite the protective provisions of the AHA.
I find that there is likely to be a real risk of interference with sites of particular significance to the native title party in the proposed licence area, and as such the act is not an act which attracts the expedited procedure.
Determination
The determination of the Tribunal is that the grant of exploration licence E63/1381 to Mulciber Metals Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
17 August 2011
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