Maggie John and Others on behalf of Malarngowem/Western Australia/Ord Resources Pty Ltd
[2007] NNTTA 29
•29 March 2007
NATIONAL NATIVE TITLE TRIBUNAL
Maggie John and Others on behalf of Malarngowem/Western Australia/Ord Resources Pty Ltd, [2007] NNTTA 29 (29 March 2007)
Application Nos: WO06/103 and WO06/197
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Maggie John and Others on behalf of Malarngowem (WC99/44) (native title party)
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The State of Western Australia (Government party)
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Ord Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 29 March 2007
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure does not apply
Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 63
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
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
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Scotty Birrell and Others on behalf of Koongie-Elvire/Western Australia/Jindalee Resources Ltd, NNTT WO05/662, [2007] NNTTA 24 (21 March 2007), Hon C J Sumner
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Jennifer Stuckey-Clarke
Representatives of the Mr Robert Powrie, Solicitor, Kimberley Land Council
native title party: Ms Ania Maszkowski, Kimberley Land Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Jan Mason, Department of Industry and Resources
Representative of the
grantee party: Mr Peter Lewis, Ord Resources Pty Ltd
REASONS FOR DETERMINATION
On the dates below, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant the following exploration licences (‘the proposed licences’) to Ord Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act):
16 November 2005: E80/3454, comprising an area of 52.34 square kilometres located 135 kilometres southerly of Kununurra in the Shire of Halls Creek; and
1 February 2006: E80/3515, comprising an area of 212.59 square kilometres located 141 kilometres southerly of Kununurra in the Shires of Halls Creek/Wyndham & East Kimberley; and
1 February 2006: E80/3516, comprising an area of 134.12 square kilometres located 135 kilometres southerly of Kununurra in the Shire of Halls Creek
Each of the proposed licences are 100 per cent overlapped by the Malarngowem registered claim (WC99/44, registered from 4 February 2000).
On 7 March 2006 and 29 May 2006 respectively, objections to the expedited procedure statement were lodged with the Tribunal by Maggie John and Others on behalf of the Malarngowem Native Title Claimants WC99/44 (‘the native title party’) in respect of E80/3454 (objection application WO06/103) and E80/3515 and E80/3516 (objection application WO06/197).
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. On 4 January 2007, following a number of conferences and directions amendments requested by the parties to allow further negotiations, the grantee party advised that the terms of the native title party’s heritage protection agreement were not acceptable and requested that the matter proceed to inquiry. With the agreement of all parties, directions were amended to allow time for the native title party representatives to seek instructions and prepare its contentions.
The Government party lodged its contentions and evidence by 2 November 2006 and those of the native title party were lodged on 1 March 2007. The grantee party confirmed it would rely on the Government party’s contentions and evidence and its statements made during Tribunal conferences and at the listing hearing before me.
On 13 March 2007, a Listing Hearing was conducted at which parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’ that is, without holding a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2) NTA).
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’), the Tribunal 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 while noting that Standard Conditions (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must now be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources. With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–[38], [40]-[41].
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licences, which adjoin each other according to its maps:
E80/3454
Texas Downs Pastoral Lease 3114/995 (100 per cent overlap)
Department of Environment and Conservation Ord River Irrigation Development Area ID1 (100 per cent overlap)
E80/3515
Texas Downs Pastoral Lease 3114/995 (46.6 per cent overlap)
Mabel Downs Pastoral Lease 3114/672 (45.2 per cent overlap)
National Estate Registered Site 10164 (24.5 per cent overlap)
Lissadell Pastoral Lease 3114/1001 (8.2 per cent overlap)
Rain Forest Area (less than 0.1 per cent overlap)
Department of Environment and Conservation Ord River Irrigation Development Area ID1 (100 per cent overlap)
E80/3516
Texas Downs Pastoral Lease 3114/995 (100 per cent overlap)
National Estate Registered Site 10164 (4.3 per cent overlap)
Department of Environment and Conservation Ord River Irrigation Development Area ID1 (100 per cent overlap)
The documentation notes that Kawanypunjai Aboriginal Community is situated less than a kilometre from the eastern edge of E80/3515 and some 3 kilometres from the southern edges of E80/3454 and E80/3516. A map provided by the Tribunals’ geospatial unit shows Turkey Creek, Turkey Creek Aboriginal Reserve and Warmun Aboriginal community some twenty kilometres west of the proposed licences and linked by a well graded road that extends well into E80/3515, the westernmost tenement.
Searches of the Department of Indigenous Affairs (‘DIA’) Register of Aboriginal Heritage Sites under the Aboriginal Heritage Act 1972 (WA) provided by the Government party reveal one mythological site within E80/3515 named Moonlight Spring (Site ID 14046) which is on the Permanent Register, with closed access and no restrictions as to gender. No other registered Aboriginal sites are noted.
The documentation also notes there has been some past exploration activity over the area of the proposed licences but no current activity.
The grant of the proposed licences 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) and also include conditions for providing notification to the pastoral or grazing lessee of the grant of the licences and of certain exploration activities (conditions 5–6). Additional conditions are:
E80/3454
No interference with Geodetic Survey Stations HJ 26 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface (condition 7)
E80/3516
The prior written consent of the Minister for State Development being obtained before commencing mining on Regeneration of Eroded Areas in Ord River Reserve (condition 7)
All Licences
Department of Environment and Conservation restrictions and requirements in relation to written notification of activities, disruption of watercourses and fringing vegetation, rights of ingress to and egress from, storage and disposal of hazardous substances, abstraction of water, activities on existing or designated future irrigation districts (last seven conditions for each proposed licence)
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
All Licences
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder, the Water and Rivers Commission Act 1995 and any Regulations thereunder, the Rights in Water and Irrigation Act 1914 and any Regulations thereunder, and the Environmental Protection Act 1986 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
E80/3515
The land the subject of this licence affects a Rainforest area, The Licensee is advised to contact the Department of Conservation and Land Management for detailed information on the management requirements for rainforest areas and rainforest monitoring site or sites present within the tenement area.
The native title party’s contentions include the affidavit of Betty Carrington dated 14 March 2007 made in the following terms:
‘I, Betty Carrington, of Turkey Creek in the State of Western Australia, affirm:
1.My name is Betty Carrington. My aboriginal name is Myria. I am an elder of Malarngowem Native Title Claim (WC99/044).
2.I do not know my date of birth but I know I was born on my country, Malarngowem. I now live in Turkey Creek. I take our young people out on country in school holidays for camping and fishing and to teach them about our culture.
3.I am an elder of the Malarngowem Native Title Claim group and under our law I have authority to speak for the country covered by that Native Title Claim. I know the area where Ord Resources Pty Ltd, “the Grantee Party”, has applied for Exploration Licenses (E80/3515, E80/3516, and E80/3454) well because I have been taken out closer to the area on Texas Downs Station. The tenement areas have been shown to me on maps. They are attached to this affidavit and they are marked E80/3515 “A”, E80/3516 “B” and E80/3454 “C”.
4.I recognize the area clearly because these tenements cover some very dangerous land including ground between Mt Jarred and Mt Redbutt or Dooyitnining. I have been to this area many times and there are areas within the tenement that are very important to our dreaming and culture.
5.I am aware of the activities which the grantee party could do using the exploration license area under the Mining Act if they are granted the exploration licenses.
INTERFERANCE WITH COMMUNITY AND SOCIAL LIFE
6.The exploration license area is a part of Malarngowem country. I know this area well because I grew up there. Now I and other Malarngowem people live on outstations in Turkey Creek.
7.The area covered by the tenement has places where we camp and hunt. We go out there to get bush tucker like goanna, turkey, emu, and kangaroo. We use the bark of the white oak trees to burn for cooking. These tenement sites cover areas where we take our kids in school holidays and on the weekend to camp, hunt, fish and learn about their culture. This is an important part of our community.
8.There are places in each of the tenement areas where we have ceremony and traditional law. This is a part of our culture and tradition. We maintain our cultural traditions and connection to this area.
9.We won’t be able to go there to hunt and teach our culture if the land is disturbed or damaged. The animals will be gone and the trees and plants destroyed. The community won’t be able to use these places as they usually do and that would make us very sad.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
10.There are places of importance to traditional laws and customs in the tenement area. Under our law we must look after these places or bad things will happen to us and to the people who cause the damage.
11.If other people want to come to our country then they must ask the Traditional owners, like me who speak for our country they must not just go there. Much of the area covered by the tenements is very dangerous country.
12.Within the tenement E80/3515 there is a significant area where if rocks are removed there will be a big electrical storm. Lightening would strike all over this area and cause a lot of damage to people and the land. It is very important that rocks are not removed from this area.
13.Many of us were born in different parts of the tenement area and one the rivers in the tenement area E80/3515 is a place where a large number of our people were born.
14.Tenement E80/3515 also contains a spring which is a fertility spring where women go to drink if they are having problems falling pregnant. There is a story here that there is an old lady who walks around the spring and feeds the little children. This is an important part of the dreaming for this area.
15.Mt Deception is within tenement E80/3516. There is dreaming associated with this place. The dreaming relates to the bush dogs or dingos.
16.Within tenement E80/3454 is Mt Jarred which is a very dangerous place. We don’t walk on or too near to Mt Jarred because it is so dangerous. If you go barefoot in that area and you get a cut or graze on your feet or anywhere it won’t heal it will just get worse and worse. It is not safe for anyone, Kija or others to go into that area. The dreaming for Mt Jarred is that if anyone digs into the mountain then blue flys will be released and they will kill everything, the people who opened the mountain and all the Kija people. It is a very dangerous place to go to and no one should go there.
17.To the right of Mt Jarred is a place where we go and get rocks if we want it to rain. When we take the rocks away from that area it rains on our country.
18.The area between Mt Jarred and Mt Redbutt or Dooyitnining is an area that is very dangerous and if people go in there they don’t come back and if they do come back they are crazy. If you get too close to the area it draws you in, it is a very dangerous area. Kija people know not to go there and the mining people shouldn’t go there either. It is very dangerous for everyone.
19.Within the tenement areas there are burial sites that are very important to our culture. It important in our law to look after these places. Some of these places are very old areas. They are important to our history and culture.
20.Within tenement E80/3516 are massacre sites where many of our people were killed by white people. This area is very important to us.
21.There is a dreaming story across the three tenement sites of a Kija woman who walked around and ended up at Mt Deception. She was very mad, very angry as she was walking around and by the time she reached Mt Deception she had grown horns. That is how powerful this area where the tenements are really is.
22.If these sites are damaged there will be big trouble for our people as much of this area is very dangerous. It will hurt not just the Kija people but everybody. It is against our laws to damage these places.
MAJOR DISTURBANCE TO LAND OR WATER
23.There would be a lot of damage to the waters in this area if the mining companies are allowed to come in. They would damage our water ways and this would affect how we hunt for food and would make it so we couldn’t follow out traditional laws and customs in that area.
24.The land in that area being damaged and disturbed would mean that traditional law places are destroyed and we would not be able to teach the young ones our culture in the same way. Damaging that land would cause bad things to happen to our people and the people who come on to that land. The dreaming for this area speaks of very dangerous things happening if people go on to it, especially if they disturb things or take things away.
25.If a mining company wants to go onto our country they should come and speak to the elders like me before they do that. They should come and ask permission before they do anything on our country, because that is our law and custom.’
The native title party’s contentions also includes the affidavit of Patrick Mung dated 14 March 2007:
‘I, Patrick Mung, of Turkey Creek in the State of Western Australia, affirm:
1.My name is Patrick Mung. My aboriginal name is Nirrtji. I am a named Applicant of the Malarngowem Native Title Claim (WC99/044).
2.I was born on 1st January 1947 on my country, Malarngowem. I now live in Turkey Creek. Myself and other people take the kids to camp and fish and teach them culture. We go on the weekends and in the school holidays.
3.I am a senior man for the Malarngowem Native Title Claim group and under our law I have authority to speak for the country covered by that Native Title Claim. I know the area where Ord Resources Pty Ltd, “the Grantee Party”, has applied for Exploration Licenses (E80/3515, E80/3516, and E80/3454) well because I have been shown a map of the area and I have been to this area many times before. This area is covered by Texas Downs station. I have been taken out to see more clearly where the area is, that is covered by the tenements. The tenement areas have been shown to me. They are attached to this affidavit and they are marked E80/3515 “A”, E80/3516 “B” and E80/3454 “C”.
4.There are areas within the tenement that are very important to our dreaming and culture. I recognize the area clearly because these tenements cover some very dangerous land including Mt Jarred and Mt Redbutt or Dooyitnining.
5.I am aware of the activities which the grantee party could do using the exploration license area under the Mining Act if they are granted the exploration licenses.
INTERFERANCE WITH COMMUNITY AND SOCIAL LIFE
6.The exploration license area is a part of Malarngowem country. I know this area well because I grew up there. Now I and other Malarngowem people live on outstations in Turkey Creek.
7.The area covered by the tenement has places where we camp and hunt. We go out there to get bush tucker like goanna, turkey, emu, and kangaroo. We use the bark of the white oak trees to burn for cooking. Theses tenement sites cover areas where we take our kids in school holidays and on the weekend to camp, hunt, fish and learn about their culture. Many of us were born in different parts of the tenement area and one the rivers in the tenement area E80/3515 is a place where a large number of our people were born.
8.Ceremony and traditional law is an important part of our community life. There are places in each of the tenement areas where we hold ceremonies.
9.I am concerned that if this area is touched by the Grantee that we can’t hunt there and teach our culture there because it will all be damaged. We will not be able to fish in the rivers or gather other bush tucker because all the animals will be gone and the plants destroyed. It is important to our community to carry on these activities as it is an important part of our culture.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
10.Under our law we must look after these important places within the tenement area or bad things will happen to us and to the people who cause the damage.
11.If other people want to come to our country then they must ask the Traditional owners, like me who speak for our country they must not just go there.
12.Within the tenement E80/3515 there is a significant area where it is important that rocks are not removed because there would be a big electrical storm. Lightening would strike all over this area and cause a lot of damage.
13.Tenement E80/3515 also contains a spring which is a fertility spring where women go to drink if they are having problems falling pregnant. There is a story here that there is an old lady who walks around the spring and feeds the little children (they are like pixie children). This is an important area for the women.
14.Mt Deception is within tenement E80/3516. There is dreaming associated with this place. The dreaming relates to the bush dogs or dingos.
15.Within tenement E80/3454 is Mt Jarred which is a very dangerous place. We don’t walk on or too near to Mt Jarred because it is so dangerous. If you go barefoot in that area and you get a cut or graze on you it won’t doesn’t heal it only gets worse. It is not a safe area Kija people or any other people. Kija people know that to be careful not to go near this area. The dreaming for Mt Jarred is that if anyone digs into the mountain then blue flys will come out and will swallow the Kija people up and everyone else as well.
16.The area between Mt Jarrad and Mt Button or Dooyitnining is an area that is very dangerous. People who go there don’t come back and if they do come back they are crazy. Kija people know that you can not get too close to the area or it will draw you in and you can’t not go. If you get too close to the area it draws you in, it is a very dangerous area.
17.Within the tenement areas there are burial sites that are very important to our culture. It important in our law to look after these places.
18.Within tenement E80/3516 are massacre sites where many of our people were killed by white people. This area is very important to us.
19. It is against our laws to damage these places and if people go there it will be very bad for Kija people. It will hurt anybody.
MAJOR DISTURBANCE TO LAND OR WATER
20.There would a lot of damage to the waters in this area if the mining companies are allowed to come in. They would damage our water ways and this would affect how we hunt for food and would make it so we couldn’t follow our traditional laws and customs in that area.
21.The land in that area being damaged and disturbed would mean that traditional law places are destroyed and we would not be able to teach the young ones our culture in the same way. Damaging that land would cause bad things to happen to our people and the people who come on to that land. The dreaming for this area speaks of very dangerous things happening if the land is damaged.
22.If a mining company wants to go onto our country they should come and speak to the elders like me before they do that. The mining company should ask permission before they go on to our country because that is our law.’
The evidence of Ms Carrington and Mr Mung is uncontested and I accept it. Both are Malarngowem elders who have authority under traditional law and custom to speak for the area encompassed by the native title claim. Mr Mung is one of the persons registered as part of the applicant for native title. I accept they have authority to speak on behalf of the native title party.
Grantee party’s intentions
The grantee party in the initial stages of exploration proposes to use existing access roads and to follow existing waterways to specific areas by foot for the purpose of collecting rocks to determine whether they are of meteorite or volcanic origin. If of meteorite origin, no further exploration would be undertaken but if of volcanic origin, the grantee party was prepared to enter into a heritage agreement in order to undertake more extensive exploration. The grantee party says that there will, in this initial stage, be no ground disturbance and unfettered access to the subject areas is not being sought. Any sites of significance will not be interfered with as the initial exploration will only occur over areas already accessed by cattlemen and tourists. The native title party’s position is that the grantee party will not know where sites are because not all sites are identified on the Register. Although negotiations occurred, no agreement could be reached on allowing initial exploration to occur before a more comprehensive heritage survey was required. While the Tribunal is aware of the grantee party’s initial intentions, no details of what exploration will be carried out in the event that the sampling finds volcanic rocks was given. The matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50–51 [34]–[35]).
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken pursuant to them are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([23])). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
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 on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The evidence suggests that the area of the proposed licences has been subject to some prior exploration activity. Nonetheless, the evidence of Ms Carrington and Mr Mung confirms that the native title party continue to enjoy access to the area up to the present day. The principal issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them.
The uncontested evidence, including that of Ms Carrington and Mr Mung, establishes the following facts.
Members of the native claim group and native title party live at Turkey Creek (some 20 kilometres west of the proposed licences) and outstations in the vicinity of it.
Turkey Creek, Aboriginal Reserve and Warmun Aboriginal community are located some 20 kilometres west of the proposed licences and access to the area is via a well graded road to Texas Downs station (located on E80/3515).
Kawanypunjai Aboriginal Community is located very near the subject areas.
Members of the native claim group and native title party were born on the area of the proposed licences, and in particular, at one of the rivers in E80/3515.
Members of the claim group and native title party continue to engage in community and social activities which are a manifestation of their native title rights and interests on the proposed licence area. These include camping, hunting, fishing, gathering of bush tucker, holding of ceremonies and traditional law, teaching young people about the native title party’s culture and traditional practices, and visiting and looking after places in the subject area.
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. The Tribunal also has regard to the fact that generally an exploration licence area is a small part of the overall claim area and the community and social activities occur over that larger area (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 (‘Cheinmora’) at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])). In this case the area of the proposed licences (which adjoin each other) totals 399.05 square kilometres in a claim area of some 7,519 square kilometres.
Although mindful of these considerations, they are not decisive in all cases in reaching a conclusion that interference with community or social activities is unlikely (Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (‘Banjo Wurrunmurra’ at [19]-[23]). In my view the present case exhibits factors which lead me to find that the proposed exploration activity is likely to directly interfere with the community or social activities of the native title party: The native title party’s members live in a number of locations in close proximity to the proposed licence area, vehicle access to the area is via a well graded road, there is evidence that a number of community or social activities are currently carried out on a regular basis and that the existence of current pastoral activity or prior exploration activity has not significantly affected the native title party’s capacity to carry on its community or social activities. While the grantee party has provided evidence of what it intends to do in the initial stages, there is no evidence of what steps it might take to avoid interference caused by more extensive exploration activities.
For the record, with respect to the native title party’s submissions relying on the statements by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at p 223) that the very thought of intensive exploration activity could interfere with ‘community life’ I again reject them by adopting my findings in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner at [22].
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine 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) significance to the native title party in accordance with their traditions. There is one site recorded on the Register kept under the Aboriginal Heritage Act within E80/3515, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licences 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 Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The uncontested evidence of Ms Carrington and Mr Mung show the area of the proposed licences to contain a number of areas of particular importance to the native title party’s dreaming and culture (paras 4 and 10) which include the following:
A dreaming story deposed to travel the whole area of the proposed licences to Mt Deception and which describes the power of the area of the proposed licences.
Places where ceremonies are currently held
Massacre sites within E80/3516 where it is deposed that many of the native title party’s people were killed by white people.
A number of burial sites, deposed to be of importance to the native title party.
A lightning site within E80/3515, deposed to create an electrical storm if disturbed.
A fertility spring within E80/3515, deposed to be an important women’s site with an associated dreaming story that is of significance for the area.
A river within E80/3515, deposed to be a place where large numbers of the native title party’s people were born.
A dingo or bush dog dreaming site at Mt Deception within E80/3516.
The area of Mt Jarred, deposed to be a dangerous site causing physical harm if entered and death is disturbed with an associated dreaming story of significance to the area.
The area between Mt Jarrad and Mt Button (also described at Mt Redbutt or Dooyitnining) deposed to be a dangerous area causing spiritual harm if entered.
A rain site near Mt Jarred, deposed to be used for increasing rain in the native title party’s country.
I am satisfied that these sites and areas are of particular significance to the native title party in accordance with its traditions. I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, 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. The Government party relies the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal, most recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protection regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (Banjo Wurrunmurra at [26]–[34]).
As already stated, the grantee party has provided evidence of its initial exploration intentions, however should further exploration prove viable, it will conduct more extensive exploration and so the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full. I accept that the grantee will act lawfully and in accordance with the Aboriginal Heritage Act and has indicated a willingness to enter into a Heritage Agreement if full exploration proceeds. Despite these factors this is a case where, in my view, the normal negotiations mandated by the Act should take place to avoid the likelihood of interference with the sites identified by Ms Carrington and Mr Mung. I make this finding based on the evidence that the subject area contains areas which are of particular significance to the native title party and is site rich, containing a number of areas and sites associated with important dreaming stories of such importance that some sites cannot be entered or disturbed except in accordance with traditional law and custom. The number and nature of the sites which exist on the subject area and are not on the public record means there is a real risk of interference with them despite the protective provisions of the Aboriginal Heritage Act.
My findings in relation to s 237(b) of the Act are consistent with those in the recent decision of Scotty Birrell and Others on behalf of Koongie-Elvire/Western Australia/Jindalee Resources Ltd, NNTT WO05/662, [2007] NNTTA 24 (21 March 2007), Hon C J Sumner in relation to the Kimberley area near Halls Creek.
My findings on ss 237(a) and 237(b) are consistent with Western Australia/Glen Griffin Venn Money/Jack Britten & Ors, NNTT WO99/800, [2001] NNTTA 53 (25 June 2001), Jennifer Stuckey-Clarke which dealt with the grant of five exploration licences immediately to the south of the present areas, albeit in relation to a different claim group.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings on s 237(a) and s 237(b).
Determination
The determination of the Tribunal is that the grant of exploration licences E80/3454, E80/3515 and E80/3516 to Ord Resources Pty Ltd is not an act attracting the expedited procedure.
Hon CJ Sumner
Deputy President
29 March 2007
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