Judy Hughes on behalf of Thalanyji/Western Australia/Energy Metals Pty Ltd
[2005] NNTTA 93
•13 December 2005
NATIONAL NATIVE TITLE TRIBUNAL
Judy Hughes on behalf of Thalanyji/Western Australia/Energy Metals Pty Ltd, [2005] NNTTA 93 (13 December 2005)
Application No: WO04/359
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Judy Hughes on behalf of Thalanyji – WC99/45 (native title party)
-and-
The State of Western Australia (Government party)
-and-
Energy Metals Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 13 December 2005
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – not likely to be interference with the carrying on of community or social activities, sites of particular significance or major disturbance to land – act attracts the expedited procedure
Legislation:Native Title Act 1993 (Cth) ss 29, 151(2), 237
Mining Act 1978 (WA) s 63
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18
Cases:Cheinmora v Striker Resources NL & Ors, [1996] 1147 FCA 1; (1996) 142 ALR 21
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362
Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41, [2005] NNTTA 1 (1 February 2005), Hon C J Sumner
Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243
Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley vWestern Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Industry & Resources
Representative of the Ms Denice Johns, Hetherington Exploration and Mining Title
grantee party: Services Pty Ltd
REASONS FOR DETERMINATION
Background
On 15 December 2004, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E08/1480 (‘the proposed licence’) to Energy Metals Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is an act which can be done without the normal negotiations required by s 31 of the Act).
On 16 December 2004, Judy Hughes on behalf of Thalanyji (‘the native title party’) made an expedited procedure objection application to the Tribunal relying on all three limbs of s 237 of the Act. The native title party’s application for a determination of native title was entered onto the Register of Native Title Claims from 7 February 2000.
The proposed licence comprises an area of some 86.78 square kilometres, 93 kilometres southerly of Onslow in the Shire of Ashburton, and is overlapped entirely by the registered claim of the native title party. No other native title claims overlap the subject area.
Conduct of the inquiry
In accordance with its normal Procedures under the Right to Negotiate Scheme, on 4 January 2005, 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. The directions also allowed a four month period from the s 29 objection closing date for parties to negotiate or finalise agreement over the grant of the tenement via the expedited procedure process. These directions were amended on 2 August 2005 to allow further time for discussion, however, by 10 August 2005 it became apparent that negotiations had broken down and an Inquiry became inevitable.
The Government party has complied with directions, and the grantee party has indicated its intention to rely on Government party submissions. On 5 September 2005 the Tribunal received a Statement of Contentions and attachments from the native title party and, after some delays to which the other parties consented, a statement of Judy Hughes in the form of an affidavit, but which does not appear to have been sworn before an authorised witness. I am prepared to accept as evidence Ms Hughes’ unsworn affidavit (Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362 (at [13]-[18]). I am satisfied that I can adequately deal with the matters on the papers in accordance with s 151(2) of the Act.
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at [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 [24]-[35]). I adopt those findings for the purposes of this inquiry.
Evidence in relation to the proposed act
Department of Industry and Resources (‘DoIR’) submissions reveal that the area of proposed licence largely comprises pastoral leasehold. A Road Reserve and State Onshore Pipeline licences also bisect the proposed licence area. There are no Aboriginal communities in the vicinity of the subject area but the Register of Aboriginal Sites held by the Department of Indigenous Affairs (‘DIA’) pursuant to the Aboriginal Heritage Act 1972 (WA) documents three registered sites on or in the immediate vicinity of the proposed licences:
Site ID 8307 – Manyingee Hill, said to be a quarry with artefact scatters
Site ID 8309 – Crow Plains alluvial scatter
Site ID 8904 – Natgas 148, said to be artefact scatters
Each of these sites is open access, with no gender restrictions. Only Manyingee Hill is on the permanent register.
The mapping documentation provided by the Government party shows exploration and mining interest in the area of the proposed licence and that adjacent to it. The Tengraph Quick Appraisal generated on 18 July 2005 shows three active mining leases overlapping or abutting the subject area. The list of dead tenements affected shows nine exploration licences, of which three were granted and active between 1984 and 1997, and six temporary reserves (titles similar to exploration licences granted pursuant to s 276 of the Mining Act 1904 (WA)), active between 1963 and 1981. The area has been subject of some exploration (and mining activity) and there is continued interest in the area.
The grant of the proposed licences will be subject to the standard endorsement and conditions applicable to all exploration licences in Western Australia as previously set out in Walley at [34] and [50] and some additional conditions and endorsements specific to this grant including conditions providing for notification to the pastoral lessee of certain exploration activities, restrictions on mining activities in the vicinity of the Geodetic Survey Stations and Aerial Landing Grounds, and a number of conditions concerned with access, safety, infrastructure construction and mining activities in the vicinity of Gas pipelines and associated Safety Zones. The endorsements also draw the grantee party’s attention to the Environmental Protection Act 1986 and Environmental Protection (Clearing of Native Vegetation) Regulations 2004.
The Government party will impose the following additional condition on the grant of the proposed licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Thalanyji People, the applicants in Federal Court application no. WAD 6113 of 1998 (WC99/45), such request being sent by pre-paid post to reach the Licensee’s address Hetherington Exploration and Mining Title Services Pty Ltd, PO Box 8249, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Thalanyji People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and the Yamatji Land and Sea Council.’
Native title party contentions and evidence
The native title party has submitted as evidence a report entitled ‘Comments on Energy Metals: Application for Expedited Procedure (Exploration Lease E08/1480), National Native Title Tribunal’, written by Edward McDonald PhD of Ethnosciences, dated August 2005. The report confirms Department of Indigenous Affairs’ site register information (see para [8] above) and asserts that research in the area would suggest that there is ‘a fairly high potential’ for other archaeological sites to be located in the vicinity. Mr McDonald’s report also provides information in relation to an area known as the ‘Waramalu estate’, named after ‘an important pool’ on the Ashburton River, where ceremonial and ritual activities are said to have taken place. The location of Waramalu estate is not described with precision.
The native title party has also provided a statement made by Judy Hughes in the form of an affidavit, the footnote of which states ‘the Applicant is infirm, has no transport and unable to travel to the nearest JP’. The statement is unsworn and the contents are set out hereunder:
‘Affidavit’ of Judy Hughes
‘I, Judy Hughes of Onslow in the state of Western Australia, Pensioner, say on oath/affirm as follows:
1. I am a Registered Applicant of the Thalanyji People Native Title Claim group, and a member of the Buurabalayji Thalanyji Association Incorporated, the organisation established to represent the Thalanyji People.
2. The Thalanyji People live in and around Onslow WA.
3. Most of the Aboriginal people who live in the claim area are descended from Thalanyji People, who are members of the original descent group of the Onslow and surrounding regions. The origins of the name “Thalanyji” is from the language names of speakers who were in the area before the advent of European occupation. The language is still spoken today by elders of the Thalanyji.
4. Energy Metals has applied for an exploration licence (E08/1480) which is in the Pilbara area, and lies in part of the traditional country of the Thalanyji people.
5. The Thalanyji people have formed their own association known as the Buurabalyji Thalanyji Association Incorporated. The Thalanyji People run enterprises from is office in Onslow, and has acquired assets to enable it to manage its own affairs on its lands, and to secure its culture.
6. The Thalanyji People are consulted regularly about the activities that occur on their land. For example, Mains Roads WA consulted with and reached agreement with the Thalanyji about the possible impact of replacing the Ashburton Bridge at Nanutarra upon their sites of significance. The Thalanyji anthropologist, Dr Edward McDonald, was engaged by the company through the group to carry out a site survey, which established that there were sites of significance in the area that should not be disturbed. As a result of these consultations, an alternative proposal was put to the Thalanyji People by MRWA, and in the course of these consultations the Thalanyji People identified an alternative location. This required the preparation of a s18 application to the Minister for Aboriginal Affairs under the Aboriginal Heritage Act 1972-80.
7. It is the policy of the Thalanyji People that developers consult with them about use of their land, and enter into a heritage protocol agreement before carrying out any work on their lands. This ensures that sites of significance are respected, are not disturbed, and that the community life and the incidence of native title, are all acknowledged and respected by land users.
8. My family lives in Onslow and the surrounding areas, which include the pastoral leases within the claim boundary. My mother and elders taught me that the areas of “Thalanyji” had been in traditional country from before the time when white people came. My parents and elders told me of how the British settlers came to our country to prospect and look for gold, and they pass on to me stories of the early contact period.
9. The names of the local features are all derived from, and have, meaning to the Thalanyji People. For example, Mindaroo, Peedamulla, Maynigee, Buurabalayji and many more areas we have named, all have special significance to use.
10. Some areas are forbidden for the Thalanyji people to stay at, as they are places that bring sickness or sorcery. These places can also harm other people, and it is important that these people consult with the Thalanyji before entering such places, as we have a responsibility to protect people from harm.
11. Passing on traditions is important to the Thalanyji People. I grew up at Minderoo and Nanutarra, and various locations in the Thalanyji claim area; we lived in humpies and tents, and always shared what we had with my aunties and uncles. There was a big mob of us. I cannot mention the names of the old people because they have now passed away and we are not allowed to use their names once they die. This is part of our traditional laws and customs.
12. When I growing up, my family was always working on stations, farms, APB and other various jobs. Given the government policies of that day, which denied our existence and gave us no legal rights, the owners, all things considered, were generous most of the time, and gave the family employment. We would live on the station, and the owner would bring food down to the camp where we lived. He also brought tobacco (“Log Cabin”) tea and sugar. He used to provide us with sheep and goat sometimes.
13. This is in keeping with our tradition. In return for working on the station, an understanding was developed between the European owner and the traditional people that reciprocity was necessary – that the owner must provide sustenance, and that we would work for him. The owner was also obliged to recognise that traditional practices continued on “his” land – ceremonies and law continued, and we would continue to gather roots, shrubs and medicinal plants, the native “chewing” tobacco, trees for spears and other hunting implements, and kangaroo and emu. We would make our own medicines from a scrub (a tradition absolutely necessary as we were not permitted to see doctors).
14. The tradition of making bush medicine has been passed down to me by the elders.
15. As mentioned above, for most of our food however, we used to do out own hunting. We used to hunt bush turkey, goanna black swans, ducks, geese, porcupine (echidna), bobtails, snakes (carpet python), doves, bardies (tree, scrub), parrots and cockies. I was taught by my elders how to hunt in the traditional way. My parents and elders would show us all the edible native fruit and berries, such as silky pear, quandongs, honey of the eucalyptus trees, gum of different scrubs. We also would catch and cook kangaroo and emu. The meat that we caught was always dished out in accordance with our traditional customs. This meant that the best cuts went to elders and the old men, and the remainder was dished out according to our position in society. The old people would teach us about different plants and animals.
16. We would also use huge eucalyptus trees as a water resource in the dry period. The water would gather in winter, when the rains would fill the hollows of the tree, and we would clean them out through the summer droughts.
17. To make a fire, we used to get some tree, split the wood fill it up with grass and sharpen it. We would then rub the sharpened stick into a groove rapidly, until smoke was produced. We then put grass in and gently blew on the smoke until a fire was formed. Also we would carry two sharp quartz rocks around with us, we would bundle some dry grass together and then bang the two rocks together to cause friction which cause a spark to ignite and the grass to catch fire.
18. When we were children, the elders used to teach us stories while we were hunting and also around the camp. These stories were about the country. We still teach our children about these stories. They used to teach us these stories and sign these songs in the Thalanyji language. I speak the language.
19. I teach the language to our children as well.
20. I and other Thalanyji people continue to use traditions today. We go out on weekends and for school excursions and the elders show the children how to hunt and fish and recognise and gather edible berries and fruits in the traditional way.
21. The Thalanyji People have rights under our laws and customs to travel around the station and our traditional country beyond that. We are able to live in that area and carry on the traditional activities without needing permission. We also have the right to gather plants and animals and other things from the ground such as materials for tools and artifacts.
22. The tradition of “trade” still exists today. Anthropologists rely on our elders for stories about the country, and for information about “sites” of significance so mining people are able to carry on their business, while paying compensation to us for land use. In exchange for information that we give, we receive entitlements to carry on traditional practices.
23. There are many books written about the stories of the Thalanyji People today. Historians, anthropologists, oral history experts and sociologists have all described the life and customs of our people. Professional anthropologists such as Rory O’Connor, Eddie McDonald and Will Christensen, are some of the anthropologists who have built their reputation around our stories and lifestyle.
24. There are many traditional which are handed down, and which we still observe. These include traditions concerning burial, conception, marriage and ceremonial events.
25. Mining companies and explorers must now ask our permission before they carry out any exploration or mining. This is a legal requirement which came about from the earlier desecration of some of our more important places and led to the passing of the WA Aboriginal Heritage Act, which was enacted in 1972.
26. The applicant, Energy Metals, wants to explore for minerals in our area. In our objection to their application attracting the expedited procedure, we asserted:
The objectors believe that the proposed act is not an act attracting the expedited procedure because the proposed act:
(a)once granted, is granted for a period of five years, which may be extended at the discretion of the Minister for Mines up to 9 years with further extensions permitted under exceptional circumstances. This gives the grantee Party unfettered access to the area for a very long time, and there is no requirement upon the Grantee Party to advise the Native Title Party of its activities, the location of its activities, the timing of its activities and the extent of disruption to the land.
(b)the Native Title Party continues to use the application area for traditional activities. These include, inter alia, hunting for food in the application area (on a seasonal basis), and gathering local flora, edible berries and seed; gathering honey ants; gathering ochre for ceremonial purposes; practising ceremonial activities; carrying out traditional law business each year; visiting the land to repair sites and waterholes and to commune with spirits; visiting the land to teach children their culture and traditions; teaching children the traditional names of features, flora, fauna and sites; visiting sites of significance; trading in resources from the area; visiting Dreaming sites, visiting rivers and creeks for fishing, and to teach children about water and river sites.
(c)We also outlined the damage that would be done by the grant of the licence, as follows under s66 of the Mining Act, the Grantee Party is authorized to:
· enter and re-enter the land with agents, employees, vehicles, machinery and equipment to explore for minerals;
· dig pits, trenches and holes, sink bores, costeans and tunnels to the extent necessary for the purpose in, or under, the land;
· excavate, extract or remove up to 1000 tonnes, or such greater amount as the Minister may, in any case, approve in writing;
· take and divert water from any natural spring, lake, pool, or stream situate in or flowing through the land or from any previous excavation made for any purpose in connection with exploring for minerals on the land.
There is no obligation on the part of the Grantee Party to consult with the Native Title Party before carrying out such activities. The exercise of these rights of these activities will cause distress to the Native Title holders, who are aware that such activities are likely to be carried out by the Grantee Party to the full extent permitted, involving disturbance to the land and waters concerned and to their traditions as outlined in (b) above. For example, teaching children about country within the area of application, whilst digging and costeaning is being carried out, will present significant risk to person as well as potential damage to sites. Under Aboriginal traditions, if damage occurs to sites, the custodian may be sanctioned for not preventing such damage.
(d)the level of protection provided by the Aboriginal Heritage Act and the Guidelines Issued to Persons Obtaining Exploration Licences is not an appropriate level of protection sufficient to protect sites on the land.
27. The area of the application is the home of rockholes and sites of significance. I attach a statement from Dr McDonald, our anthropologist, which attests to the documented sites of the area. In fact the area of Energy Metals application is covered by a registered site, and the company will need to consult with me about a s18 under the Aboriginal Heritage Act. The applicant has not agreed to enter into our heritage protocol, and we are concerned that the company is not showing proper respect both for European law and out own law. Therefore, the applicant risks damaging at least 3 sites of significance known to the Thalanyji, and possibly more. And without knowing the location of where the applicant proposes to carry out his activities, serious damage could be done to many more sites of significance.
28. If we are on country, teaching children about traditional foods and medicines, it is very likely that the activities of the applicant would risk the life of the children through the use of heavy machinery, vehicles and the like, and given that the activities are allowed over many years, the risk exists for a very long time. There is no requirement on the applicant to notify us of their proposed activities, their timing, or their location. This is an unacceptable risk to the Thalanyji.
29. Law business is now commencing in the area, and we are now occupied with traditional customs which bring us together each year. Law business continues until the end of February 2005.
30. We have authorised Desert Management as our agent in this matter, and would recommend that the company negotiate an agreement with the Desert Management on our behalf. If our consent is required, our agent will consult with us.’
Ms Hughes is one of eight persons who comprise the applicant for native title and the registered native title claimant. Her evidence is uncontested and I accept it and that she has authority to speak on behalf of the Thalanyji native title party.
Community or social activities (s 237(a))
For the objection to be upheld the evidence must show there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party. The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed for exploration licences, and s 20(5) in relation to pastoral leasehold areas, 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 native title party’s statement of contentions assert that ‘the present Thalanyji People, and their ancestors’ have lived and worked in the subject area and that ‘the parents, brothers and sisters of the Objector’ were employed on Minderoo and Yanrey Pastoral Stations. It is also asserted that the objectors visit the Minderoo and Yanrey area ‘and surrounding country’ to hunt, forage and educate young claim group members in methods of gathering traditional foods, and that exploration activities will lead to ‘the evacuation of the area by wild game’ and the destruction of fruit and other vegetable foods. However, apart from excursions to show children how to hunt, fish and gather on weekends and during school outings (para 20), Ms Hughes statement does not indicate that these activities are contemporary. Further, Ms Hughes deposes that Thalanyji People live in and around Onslow, which is some 85 kilometres north of the proposed licence area, and while I accept that members of the native title party may still visit the Minderoo and Yanrey area, I note that Minderoo pastoral lease extends almost as far north as Onslow (and the station homestead is situated some 47 kilometres from the subject area) and Yanrey pastoral lease occupies an area of over 2,521 square kilometres extending westerly from the lease area, the station homestead being located approximately 38 kilometres west of E08/1480. I also note that the Thalanyji native title claim overlaps the Yanrey pastoral lease by 66.16% and entirely overlaps the Minderoo pastoral lease, providing a wide area over which community and social activities, including the education of children in traditional ways, could occur. In addition, the grant of the proposed licence does not confer exclusive rights of access on the grantee party. Any restriction on access by the native title party will be very limited in area given the nature of exploration activities and the wide area over which any hunting or gathering may occur. Any restriction would also be temporary.
I am not able to give any weight to the assertion that members of the Thalanyji claim group worked on “stations, farms, APB and other various jobs” in the subject area. This employment would seem to be historical rather than contemporary, and in any event, the Tribunal considers that the relevant activities must arise from the claimed native title rights and interests (Walley v Western Australia at [13]-[14]). While a record of claimants’ past work history in the subject area assists in verifying claimants’ knowledge of the area, I cannot find it relevant to the carrying on of community and social activities.
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 or social activities may be taken into account in assessing whether the grant of an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at [26]-[28]; Walley at [12]). In this matter there is evidence of prior and existing mining and pastoral activities which will already have interfered with the activities, thus making it less likely that further exploration operations will do so in a substantial and direct way.
The native title party contends that the spirituality of the land and the social cohesion of the community will be destroyed by exploration activities (Contentions – paras 3.3-3.4). The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’
Ms Hughes statement (para 26) recites para 7(b) of the objection application which asserts that the native title party continues to use the application area for a wide range of traditional activities. However, even if this material can be accepted as evidence from Ms Hughes because it has now been incorporated into her statement, it does not provide evidence of sufficient specificity about the location and frequency of these activities to assist the native title party’s objection. The specific evidence from Ms Hughes is largely historical and the evidence of contemporary community or social activities is quite limited as explained above.
Taking all these factors into account I find that the activities on the proposed licence will not directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.
Sites of particular significance (s 237(b))
The issue here is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary - Cheinmora v Striker Resources NL & Ors, [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35) significance to the native title party in accordance with their traditions. The fact that there are only three sites recorded on the Register kept under the Aboriginal Heritage Act does not mean there may not be sites or areas of particular significance to the native title party over the area of the proposed licence. 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 Aboriginal Heritage Act 1972 (WA) protects all Aboriginal sites, whether on the Register or not.
The Government party contends that the provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act (to which the grantee party’s attention is drawn upon grant of the proposed licence) and the associated regulatory regime would protect areas or sites of particular significance from interference. I adopt the findings of the Tribunal in Walley (at [50]-[51]) in relation to the Government party’s regulatory regime and those of the Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [77]) which found the protective effect of the Aboriginal Heritage Act such as to make interference with sites of particular significance unlikely. More recently in Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd, NNTT WO04/41 [2005] NNTTA 1 (1 February 2005), Hon C J Sumner (‘Linda Champion’) (at [70]-[71]) I found that the combined effect of the Government party's revised ‘Guidelines for Consultation with Indigenous People by Mineral Explorers by Mineral and Petroleum Exploration’ (July 2004) which is sent out to each grantee of an exploration or prospecting licence and increase in penalties under the Aboriginal Heritage Act was to enhance the effectiveness of the regulatory regime for the protection of Aboriginal sites. I adopt those findings for the purpose of this inquiry. The Tribunal will have regard to whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Dr McDonald’s report says that, apart from the three identified sites registered with DIA, there is ‘a fairly high potential for other archaeological sites’ to exist because until heritage surveys are conducted they would not be recorded. Dr McDonald speaks of the Waramulu estate and ‘three important talu (increase sites)’ within it, and provides references to support his assertion that ‘places of ceremonial and ritual significance’ have previously been recorded by anthropologists in that area in the early 1900s. However, the area comprising the Waramulu estate cannot be precisely defined by Dr McDonald other than to say that it is named after an ‘important pool’ on the Ashburton River and is upstream of Bibinji (Peepingee), and that one of the talu is identified on a sketch map prepared by A.R. Browne (later Radcliffe-Browne) in 1926 as being ‘not too far to the north of Nanyinji (Naningee Hill)’ but which, because of a lack of scale on the sketch map, cannot be more precisely determined. Peepingee Pool is identified on Tribunal mapping as being about two kilometres north east of the northernmost point of the proposed licence area, and the Ashburton River flows partially along its eastern boundary (and for a short distance through it) towards the Indian Ocean in a northerly direction. I infer that Naningee Hill is the same place as registered site 8307 (Manyingee Hill). The part of the Ashburton River which runs through the proposed licence area is to the south west of Manyingee Hill. To the north of Manyingee Hill the river is outside the subject area, although at one point it comes very close to it. This places the Waramulu estate in the vicinity of Ashburton River south of Peepingee Pool and north of Manyingee Hill in an area that may be on the proposed licence area but on the evidence it is not possible to say definitely that it is.
Dr McDonald says that the late Globe Hill Jack a famous Thalanyji mabarn (medicine man) was the owner of Waramulu estate. Globe Hill Jack taught Les Hayes, one of the Thalanyji applicants, the songs for the Waramulu area and he is now the custodian for the country. Even though there is no specific evidence from Ms Hughes about the Waramulu estate, I am satisfied from Dr McDonald’s evidence that it is a site or area of particular significance to the Thalanyji people in accordance with their traditions. By their nature talu sites are of special importance to Aboriginal people.
Dr McDonald’s evidence in relation to Peepingee (pool) (an important talu for rain) is sufficient to convince me that this area is also of particular significance to the native title party, but as mentioned earlier, Peepingee Pool is approximately two kilometres north easterly of the proposed licence and does not appear to be on or adjacent to existing roads or tracks. I therefore find the likelihood of interference to be low.
The evidence of Ms Hughes in relation to sites is somewhat limited, confined only to asserting that the proposed licence area is ‘the home of rockholes and sites of significance’. Tribunal mapping indicates a number of water bodies in and around the subject area but without further detail I am not able to judge whether any of these, or indeed the pools associated with the Ashburton river, are those same rock holes. Native title party contentions also refer to the likely existence of engravings and traditional stone quarry sites ‘known only to relevant Aboriginal elders’, but there is no specific evidence of these places. There is nothing in the native title party’s evidence which identifies the three registered sites as sites of particular significance to them in accordance with their traditions. There must be something provided by way of evidence which makes these archaeological sites of contemporary significance to the claim group. The nature of the sites (quarry and artefact and alluvial scatters) mean that additional evidence is required to lead to a finding that they are of particular significance to the native title party in accordance with their traditions. While there may be further sites of particular significance in the proposed licence area other than the Waramulu area and Peepingee I am unable to make that finding on the evidence presented.
I must now consider whether the sites of particular significance established by the evidence within or in the vicinity of the proposed licence (and others even assuming their existence) are likely to be interfered with given the regulatory regime in place. Ms Hughes asserts that it is ‘policy of the Thalanyji People that developers consult with them about use of their land, and enter into a heritage protocol agreement before carrying out any work on their lands’ to ensure that sites are respected and not disturbed. She expresses concern that the grantee party has not agreed to enter into a heritage agreement and that it ‘risks damaging at least 3 sites of significance known to the Thalanyji, and possibly more’. Appended to the Government party’s statement of contentions is a copy of a Statutory Declaration from the grantee party, dated 22 November 2004, stating that it has executed a Regional Standard Heritage Agreement (‘RSHA’) for the Yamatji and Pilbara regions and has offered that agreement to Thalanyji. The native title party contends that this agreement is unacceptable to them, but no evidence is provided to indicate why that might be so. While not privy to the contents of Thalanyji’s alternative agreement, I see no reason to suggest that Aboriginal heritage will not be adequately protected by the RSHA which is an agreement endorsed by the Government party, Yamatji Land and Sea Council (native title representative body for the area) and peak industry bodies (see discussion in Linda Champion in relation to RSHAs generally in Western Australia).
I have previously considered the issue of the relevance of RSHAs in expedited procedure inquiries in Linda Champion (at [29]-[32])). I adopt my findings in para [32] for the purposes of this determination. Although the native title party contends that they have had experience where the Aboriginal Heritage Act has been breached specific details have not been provided and there is nothing to suggest that the grantee party was responsible. I accept the grantee party is aware of its obligation to consult with the native title party about Aboriginal heritage if the tenement is granted and accept, by virtue of the Statutory Declaration, that it is prepared to enter into a heritage agreement with the native title party. Further, and as I found in Linda Champion (at [33]), the Government party’s proposed condition ensures that should the Thalanyji People decide to accept the RSHA after the proposed licence is granted, they have the opportunity to do so. I am satisfied that the Government party’s regulatory regime and its proposed condition means that there is no real risk that sites will be interfered with.
Major disturbance (s 237(c))
Section 237(c) of the Act requires a predictive assessment of whether the grant of the proposed licence or the exploration activities undertaken upon grant of the licence are likely to involve major disturbance to land or likely to create rights whose exercise are likely to involve major disturbance to land. The Tribunal applies the law as enunciated by the Full Federal Court in Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 and more recently in Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005). The Tribunal must determine whether major disturbance is likely to occur from the viewpoint of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party.
The native title party contends that the activities permitted by the grant of an exploration licence would constitute major disturbance to land ‘even from the view point of the general community’ and that if ‘for example, blasting and bulldozing a ten metre by ten metre granite outcrop … established in the Creative Era by Thalanyji ancestors’ were to take place, this would be a serious matter ‘for all Aboriginal people associated with the particular Creative Era story and songline’. I have previous considered similar contentions in Linda Champion (amongst other matters) and I adopt the relevant parts of my findings at [77]-[79] in this matter. I find that there is unlikely to be major disturbance to land.
Concluding comments
The evidence provided in this matter provides little indication of community or social activities which have occurred in recent times, and does not indicate the specific activities which take place in the area of the proposed licence. For an assertion by the native title party that the proposed act is likely to affect community or social activities to be upheld, it must provide evidence to support such a finding. Historical activity in the area is not sufficient to support a determination that the expedited procedure is not attracted. Similarly, if sites of particular significance are likely to be affected by the proposed grant, those sites must at least be identified with some degree of certainty even if it is not appropriate for traditional owners to reveal all details of the stories or features associated with those sites or their precise location.
Determination
The determination of the Tribunal is that the grant of exploration licence E08/1480 to Energy Metals Pty Ltd is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
13 December 2005
Key Legal Topics
Areas of Law
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Indigenous Peoples & Native Title Law
Legal Concepts
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Native Title
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Expedited Procedure
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Legitimate Expectation
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