Maggie John & Ors on behalf of Malarngowem/Western Australia/Geological Resources Ptd Ltd

[2013] NNTTA 105

NATIONAL NATIVE TITLE TRIBUNAL

Maggie John & Ors on behalf of Malarngowem/Western Australia/Geological Resources Ptd Ltd, [2013] NNTTA 105 (1 August 2013)

Application No: WO2011/0165 & WO2011/0991

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Maggie John & Ors on behalf of Malarngowem – (WC1999/044) (native title party)

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The State of Western Australia (Government party)

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Geological Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:                  Daniel O’Dea, Member
Place:   Perth
Date:     1 August 2013

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts are likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – whether acts likely to involve major disturbance to land or waters - expedited procedure attracted.

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 32, 109, 146, 151, 237

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA) s 61, 66

Environmental Protection Act 1986 (WA)

Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)

Cases:            

Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, [2007] NNTTA 21 (‘Ling/ Sibraa’)

Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250; [2005] NNTTA 99 (‘Heron’)

Harvey Murray and Others/ Western Australia/ Drew Griffin Money [2011] NNTTA 91 (‘Money’)

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’)

Les Tullock and Ors on behalf of Tarlpa/Western Australia/Allarow Pty Ltd [2011] NNTTA 118 (‘Allarow’)

Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’)

Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 (‘Iron Duyfken’)

Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Ammon’)

Miruwung Gajerrong #1 & #4 (NTPBA) AC/Western Australia/Stansmore Resources Pty Ltd [2013] NNTTA 73 (‘Stansmore’)

Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, [2007] NNTTA 11 (‘Swancove Entreprises’)

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker’)

Parker v Western Australia and Others (2008) 167 FCR 340 (‘Parker 2’)

Smith v Western Australia and Another (2001) 108 FCR 442 (‘Smith’)

Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’)

Ward v Western Australia (1996) 136 ALR 557 (‘Ward’)

Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30 (‘A I Corp’)

WF (deceased) and Ors on behalf of Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘Emergent’)

Representative of the           Ms Danica Trewern, Kimberley Land Council

native title party:         

Representatives of the        Mr Cheyne Beetham, State Solicitor’s Office

Government party:              Ms Bethany Conway, Department of Mines and Petroleum

Representative of the           Mr Peter Del Fante, Corporate Tenement Services

grantee party:               

REASONS FOR DETERMINATION

1. On 20 October 2010 and 20 April 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licences E80/4466 and E80/4539 respectively (‘the proposed licences’) and included in the notices a statement that it considered the grants attracted the expedited procedure (that is, acts which can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licences are located:

   • E80/4466 - in the Shire of Halls Creek, comprising approximately 227.9 square kilometres, 54 kilometres north east of Halls Creek; and

   • E80/4539 – in the Shire of Halls Creek, comprising approximately 169.29 square kilometres, 38 kilometres north east of Halls Creek.

3. The proposed licences E80/4466 and E80/4539 are partially situated within the registered native title claim of the Malarngowem People (WC1999/044) – registered from 4 February 2000, and overlap 8.89 per cent and 57.84 per cent respectively. The proposed licences are also overlapped by the registered native title claim of the Jaru People – registered from 16 March 2012 (WC2012/003), by 91.9 per cent and 42.2 per cent respectively.

4. On 21 February 2011, Maggie John and Ors on behalf of Malarngowem (WC1999/044) (‘the native title party’) made an expedited procedure objection application to the Tribunal in respect of E80/4466 (designated by the Tribunal as WO2011/0165). On 18 August 2011, the native title party made an expedited procedure objection application to the Tribunal in respect of E80/4539 (designated by the Tribunal as WO2011/0991).

5. In accordance with standard practice, 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 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.

6. A first preliminary conference for WO2011/0165 (regarding E80/4466) was convened on 22 March 2011. Parties negotiated in relation to an agreement for several months and directions were extended on various occasions. From the status conference for WO2011/0991 (regarding E80/4539) convened on 19 October 2011, WO2011/0991 was added to a group of other expedited procedure objections common to the parties which they requested to have conference and compliance dates aligned. Between September 2011 and March 2012, the parties participated in s150 conferences convened by a Tribunal mediator (under my direction) in relation to the matters the subject of this inquiry and other expedited procedure objection matters between the parties (designated by the Tribunal as WMO2011/0027). Compliance dates for the expedited procedure objections were vacated until the s150 conferences had been completed. Compliance dates were reinstated on 16 October 2012.  

7. On 19 December 2012, I was appointed Member by then President Neate for the purposes of the conduct of an inquiry into the application if required. Pursuant to s 150(4) of the Act, parties agreed that I can conduct this inquiry notwithstanding that I was the Member appointed to the s150 conferences referred to above at [6].

8. Pursuant to the reinstated directions, the Government party lodged supporting documents on 19 November 2012; the native title party submitted separate statements of contentions on 5 April 2013; the grantee party submitted separate statements of contentions on 16 April 2013 and the Government party lodged a combined statement of contentions for the matters in response on 6 May 2013.

9. A listing hearing scheduled for 23 May 2013 was vacated and all parties agreed that the matter could proceed on the papers.

10. On 19 June 2013, the Tribunal provided parties with a copy of the map to be used for the purposes of the determination of this application, and no objections were received in response.

Legal principles

1. 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.

2. In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Tarlpa at [10]-[16].

4. In relation to determining s 237(a), I adopt the following findings from Tarlpa:

   · History and interpretation of s 237(a) as amended (at [57]-[64]).

   · The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’

   · The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).

   ·   Must the community or social activities take place on the proposed licence area? (at [85]-[86]).

5. With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Ammon at [31]–[38], [40]-[41] (see also Parker and Parker 2.

6. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (Little, in particular [588]-[589]).

Evidence in relation to the proposed act

1. The Government party has provided:

   ·a statement of contentions;

   ·tengraph plans with topographical details;

   ·tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence areas;

   ·reports and plans from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA);

   ·copies of the tenement application;

   ·copies of the proposed endorsements and conditions of grants; and

   ·a tengraph quick appraisal for the tenement.

E08/4466

1. Government party documentation establishes the underlying land tenure of E80/4466 wholly comprises pastoral leases (3114/1032 ‘Sophie Downs’ at 91.2 per cent and 3114/652 ‘Alice Downs’ at 8.8 per cent).

2. Documentation establishes that E80/4466 has previously been overlapped by 15 exploration licences, encroaching variously between 0.1 per cent and 88.6 per cent (between 1984 and 2010), one gold mining lease encroaching less than 0.1 per cent granted in 1982 and forfeited in 1983, two mining leases overlapping 0.1 per cent (between 1987 and 2000) and 1.5 per cent (between 2002 and 2008), six mineral claims overlapping between less than 0.1 per cent and 0.5 per cent (between 1980 and 1984), a prospecting licence overlapping 0.1 per cent (between 2009 and 2011) and four temporary reserves encroaching variously between 13 per cent and 100 per cent (between 1963 and 1983).

3. The quick appraisal document shows that that the topographical features and infrastructure affected by E80/4466 are an open pit mine (shut), eight historic mines, 16 major watercourses (including Saunders Creek and Panton River), waterholes, and numerous spring/ soak/ rockhole/ waterhole features.

4. The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no registered sites on E08/4466. Tribunal mapping also indicates that there are no Aboriginal communities located upon the area of E08/4466.

5. A draft tenement Endorsement and Conditions Extract for E80/4466 included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Further conditions also require the licensee to notify the holder of any underlying pastoral or grazing lease prior to undertaking airborne geophysical surveys or any ground disturbing activities, and the licensee or transferee to advise the holder of any underlying pastoral or grazing lease details of any grant or transfer of the licence.

6. The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of E80/4466:

   1)The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and

   2)The Licensee’s attention is drawn to 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.

   In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

   3)The Licencee attention is drawn to the provisions of the:

   a.Waterways Conservation Act, 1976

   b.Rights in Water and Irrigation Act, 1976

   c.Metropolitan Water Supply, Sewerage and Drainage Act, 1909

   d.Country Areas Water Supply Act, 1947

   e.Water Agencies (Powers) Act 1984

   f.Water Resources Legislation Amendment Act 2007

   4)The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

   5)The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoW relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

   In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

   6)The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

   In respect to Waterways the following endorsement applies:

   7)Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   a.50 metres from the outer-most water dependant vegetation of any perennial waterway, and

   b.30 metres from the outer-most water dependant vegetation of any seasonal waterway.

   In respect to Proclaimed Ground Surface Water and Irrigation District Areas (Ord River) the following endorsements apply:

   8)The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.

   9)All activities to be undertaken with minimal disturbance to riparian vegetation.

   10)No exploration being carried out that may disrupt the natural flow of any waterways unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.

   11)Advice shall be sought from the DoW and the relevant service provider of proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

   In respect to Proclaimed Ground Water Areas (Canning-Kimberley) the following endorsement applies:

   12)The abstraction of groundwater is prohibited unless a current licence to construct/ alter a well and a licence to take groundwater has been issued by the DoW.

E08/4539

1. The underlying land tenure of E80/4539 comprises pastoral leases (3114/1032 ‘Sophie Downs’ at 40.6 per cent and 3114/652 ‘Alice Downs’ at 53.7 per cent), a general lease I126350 at 4.1 per cent, reserve CR1620 (at 1.5 per cent) and a road reserve (at less than 0.1 per cent).

2. Documentation establishes E80/4539 has been previously overlapped by 28 exploration licences, encroaching variously between less than 0.1 per cent and 38.5 per cent (between 1982 and 2010), one general purpose lease overlapping less than 0.1 per cent (between 1988 and 2004), one gold mining lease overlapping 0.1 per cent (between 1981 and 1982), five mining leases encroaching less than 0.1 per cent and 0.1 per cent (between 1981 and 2004), fourteen mineral claims encroaching 0.3 per cent and 0.7 per cent (between 1977 and 1983), two prospecting licences between 0.1 per cent and 0.6 per cent (between 2003 and 2007) and five temporary reserves encroaching between 25.5 per cent and 100 per cent (between 1959 and 1978).

3. The quick appraisal document shows that the topographical features and infrastructure affected by E80/4539 are ‘Katy Yard 2’, an historic mine, a ‘Chinaman Garden’, a major road, a track, a fence line, a yard, well/ bore with windmill, nine major watercourses (including Prospect Creek and Upper Panton River).

4. The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that there are no registered sites on E08/4539. Tribunal mapping also indicates that there are no Aboriginal communities located upon the area of E08/4539.

5. A draft tenement Endorsement and Conditions Extract for E80/4539 included in the Government party documentation indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]), the two further conditions noted above at [22] for E80/4466, and the following further conditions:

   7) No excavation, exceptional shafts, approaching closer to the Great Northern Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the Great Northern Highway or Highway verge being confined to below a depth of 30 metres from the natural surface and on any other road or road verge, to below a depth of 15 metres from the natural surface.

   8) No interference with Geodetic Survey Station Dixon Range 9 and 44 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

   9) The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Public Purpose reserve 1620.

6. The same endorsements as outlined at [23] for E80/4466 will also be imposed on E80/4539.

7. The Government party states (at 19 and 22) that it will consider placing a condition of grant on the proposed licences enabling the native title party to ask the grantee party to enter into a regional standard heritage-type agreement. In general RSHA agreements provide, amongst other things, that the grantee party must notify the native title party about proposed on-ground works (whether ground-disturbing or not) and provide detailed information about those works before commencing them, consult the native title party about surveys of the land in relation to ground-disturbing works before carrying out those works, carry out surveys with the participation of the native title party prior to commencing ground-disturbing works in some circumstances, and consult the native title party before applying for any consent under s 18 of the AHA.

Native title party contentions and evidence

1. The native title party provided submissions in this matter on 5 April 2013. In relation to each of the limbs of s 237, the native title party submits contentions which are cross-referenced with sections of the affidavits. The affidavit references are not included in the summaries in this section but are outlined in full further below. The submission cites the familiar passage of Carr J in Ward, that the very thought of intensive exploration activities could interfere with ‘community life’ (at 15). As I and other members of the Tribunal have said repeatedly in the past, (Swancove Enterprises at [22]) since the 1998 amendments to the Act, the expedited procedure is only not attracted if there is direct interference with the carrying on of community and social activities of the native title holders which must involve a physical component. The Carr J statement based on the previous wording ‘community life’ in s 237(a) is no longer applicable. See also Ling/Sibraa at [23] and Kimberley Quarry at [34].

1. In relation to s 237(a), the native title party states that its members ‘belong to the country within the tenement area’ (at para 14(a)) and ‘live and camp and conduct their community within the tenement area’ (at para 14(b)). They state that particular activities undertaken within the tenement area are hunting and fishing (at para 14(c)), visiting country and collecting traditional foods and products (at para 14(d)), gathering and hunting produce (at para 14(e)), looking after Aboriginal sites of importance and significance (at para 14(f)) and teaching their young people about traditional law and culture (at para 14(g)).

2. The native title party states (at para 15) that the mere existence of the grantee party on the tenement, in circumstances where there has been no negotiation or consultation between the native title party and the grantee party, could be likely to give rise to a direct interference with the carrying on of the community or social activities of the native title party, notwithstanding the absence of any direct physical interference.

3. In relation to s 237(b), the native title party state that there are parts of tenement area which are connected to their Dreamtime stories (at para 28(a)), that there is a law ceremony place on the tenement area (at para 28(b)), that there are native title party burial sites in the tenement area (at para 28(c)) and that the native title party’s traditional understanding identifies consequences if people go out to the sites identified without permission (at para 28(d)).

4. The native title party contend (at para 18) that where tenement areas are shown to be ‘site rich’, it is incumbent upon the grantee party to lead some evidence to provide a basis upon which the Tribunal might be assured that interference, intentional or otherwise, is not likely, given the practical difficulties with avoiding interference with site rich areas where not all sites may be included on the DIA site register. They state that, in the absence of evidence from the grantee party, the presumption will be that the relevant interference is likely.

5. The native title party state (at para 20) that the protections afforded by s17 of the AHA only cover sites and objects as defined and in accordance with the terms of that Act, and that the definition of the area to which the AHA applies is more restrictive that the terms of s 237(b) of the NTA (at para 21). They state that there are therefore areas and sites of significance under s 237(b) of the NTA which do not fall within the definition of ‘site’ under the AHA and would therefore not be protected under the AHA. They note (at para 25) that the mechanisms set out in the AHA which provide that the grantee party must have the consent of the Minister before using the land for any purpose which would result in a breach of s17 of that Act do not require consultation with any native title holders. The native title party state (at para 26) that the existence of legislation such as the AHA does not require the Tribunal to conclude that the prospect of interference with sites of significance is removed by the application of a presumption that the law will be observed by the grantee party: Ward.

6. In relation to s 237(c), the native title party contend (at para 36) that the grant of the tenement is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to land because the grantee party’s rights to exploration activities if the proposed tenement is granted may affect the native title party’s right to protect significant sites (at para 36(a)), right to care for country (at para 36(b)), right to go out onto country (at 36(c)), right to hunt and fish on country (at 36(d)), right to exercise cultural heritage storytelling and ceremony (at 36(e)), right to gather produce from country (at 36(f)) and right to visit historically significant places (at 36(g)).

7. In relation to E08/4466, the native title party submitted an affidavit of Gordon Barney and an affidavit of Rusty Peters, both affirmed 4 April 2013, and set out in full in Annexure 1 to this decision.

8. In relation to E08/4539, the native title party also submitted an affidavit of Mary Thomas, affirmed 4 April 2013, and set out in full in Annexure 2 of this affidavit.

Grantee party evidence

1. The grantee party submitted contentions on 16 April 2013, in which it states that it sent a letter offering to enter into the Regional Standard Heritage Agreement (‘RSHA’) with the native title party via the Kimberley Land Council representative body. The grantee party states that after due consideration of the alternative heritage agreement that the native title party subsequently indicated they were prepared to accept, and after negotiation in relation to some proposed amendments, the parties decided that they could not reach agreement. They note that the DIA register indicates no heritage sites recorded in the proposed tenement area. They also state that the proposed tenement is a ‘first pass’ exploration tenement, and that any ground disturbance carried out by humans in the area in the past has been generally minimal.

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).

2. In this matter, the native title party has provided general contentions (as outlined above at [32-33]) regarding s 237(a) of the Act.

3. Affidavit evidence has been submitted by Gordon Barney and Rusty Peters which relate to E80/4466 specifically.

4. Mr Barney says he is a senior Kija man who has authority to speak for Malarngowem country and the kangaroo dreaming. Mr Peters says he is one of senior Malarngowem people and has authority to speak for land matters. I accept that they have authority to give evidence in this matter and i accept the truth of what they have said.

5. In his affidavit, Mr Barney notes that Marlarngowem country covers part of the country where a combined Kija claim for native title is currently being formulated, and that Kija people used to go out to the exploration license area to ‘a place we called Holiday Camp Yarmrangal which is near Old Dry Creek bore just inside the tenement’ (at paras 10-11). Mr Barney states that the native title party members still go out to the exploration license area ‘for hunting kangaroo; jerlee, turkey; bengalbul, goanna; jurnambine and echidna’ (at para 12). He also states that there is ‘good spring water all of the way down the Panton River and especially at Fig Tree Bore’ (at para 13).

6. In his affidavit, Mr Peters notes that the area of the proposed licence is known as ‘Chinaman’s Gardens’, and is an important hunting and fishing area for the native title party (at para 10), where they hunt for kangaroo, echidna and goanna, and teach young people how to hunt (at para 13). Mr Peters states that in the area there used to be a ‘Chinaman’ ‘who traded rice, vegetable and other things like tobacco, with the old people from our Kija community’ (at para 12). He also states that bush potatoes called yalmanji grow in the exploration licence area, and that these are consumed by members of the native title party.

7. I accept the evidence that members of the native title party engage in activities on E08/4466, including hunting and fishing, visiting and collecting traditional foods and products and teaching your people about traditional law and culture. However, I concur with the Government party (at paras 43-45) that the probative value of the native title party’s general submissions in this regard are limited. In terms of the frequency with which members of the native title party conduct activities on E08/4466, Mr Peter comments that he was aware that people had had been fishing at Chinaman’s Gardens within the hour of providing his affidavit evidence, and that members of the Warmun community go out to the area ‘whenever they can’ because hunting is relied upon for meals (at para 10). Apart from these references, however, there is no evidence as to how often the various activities occur. I also agree with the Government party contentions that there is no evidence that living, camping and ‘conducting their community’ or looking after Aboriginal sites of importance and significance within the tenement area actually occur on E80/4466. As the Government party had noted I find the term ‘conduct their community’ vague and of indeterminate meaning.

8. Affidavit evidence of Mary Thomas relates to E80/4539 specifically. Ms Thomas says she is a senior Malarngowem and Kija woman nominated to speak about this tenement. Her bush name is Yurrunga which is a place inside the tenement. I accept that she has authority to give evidence in this matter and I accept the truth of what she says.

9. She notes that ‘some of the exploration license are crosses into Chinaman’s garden, the main place known as Chinaman’s garden in near Yurranga’ (sic), and that ‘Chinaman’s garden is a very important place for our community to hunt in’ (at para 10). She states that the native title party ‘hunt kangaroo; jerlee and goanna; junambine’ at Chinaman’s garden (at para 11).

10. I again agree with the Government party (at para 53), in relation to E80/4539, that the probative value of the native title party’s evidence, while accepted, is limited.

11. The Tribunal has repeatedly found evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see A I Corp, Deputy President Sumner at [14]).

12. I agree with the Government party that to the extent that the evidence demonstrates that members of the native title party do carry out any community or social activities in the area of the proposed tenements, there is not likely to be direct interference with those activities because:

•The area of the proposed tenements have been subject to prior mineral exploration and possibly mining activity, and these activities have affected, and continue to affect, the extent to which community or social activities can be carried out in the relevant area (at 41(a));

•The proposed tenement area is almost entirely covered by pastoral and general leases (at 41(b));

•There are no aboriginal communities within the proposed tenements (at 41(c));

•Hunting and exploration activities are, by their nature, inherently capable of coexistence (at 41(d)); and

•To the extent that the activities conducted by the native title party consist of ceremonies within the proposed tenement area, there is limited scope for intersection of these activities with the activities of exploration (at 41(e)).

1. Though I am entitled to assume, in the absence of evidence about the grantee party’s exploration programme, that it will fully exercise the rights conferred by the grant of the proposed licences (see Silver at [30] – [32]), the evidence does not suggest that the exercise of those rights will interfere significantly with the native title party’s community or social activities.

2. In the circumstances, I am unable to conclude the grant of the proposed licences will interfere with social and community activities of the native title party on the proposed licence of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act 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. DIA documentation indicates that there are no registered sites within the proposed tenements. 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.

2. The native title party has provided general contentions in relation to s 237(b), outlined at [34-36] above.

3. In relation E80/4466, Mr Barney states that there are places within this tenement ‘that are important to the Malarngowem people’ (at para 14). He notes that there ‘is a special dreamtime story about a dog who chased a kangaroo down the river and he jumped in the water so the dogs could not get to him. The kangaroos then turned into a rock which is there today. The dog chased him all the way down the River through the exploration license area’ (at para 15). Mr Peters states that ‘if strangers do not get a proper welcome to country then they may get bitten by a snake, get sick or something might happen to them’ (at para 16). He states that the kangaroo dreaming story is also connected to the tenement (E08/4466), that there is a burial site at ‘Chinaman Garden’ and that there is ‘a law ceremony place’ in the tenement (at paras 17-19).

4. I agree with the Government party (at paras 62 and 64), in relation to E80/4466, that the kangaroo story relates to the tenement area generally, but accept (as the Government party do) that a law ground may exist on E08/446 and that there are burial sites on the tenement in unspecified locations. There is no explanation as to why any of these sites are of particular significance to the native title party. See Emergent at [39]-[40] Allarow at [39]-[40].

5. In relation to E80/4539, Ms Thomas states that ‘there are places in the tenement areas that are important to the Kija people’ and that she attends Little Panton River with her children and grandchildren and tells them stories (at para 13). However, she states that she hasn’t been able to do this since becoming unwell (at para 15). She states that the Madgejar story relates to the Little Panton River which is called ‘King Fisher dreaming’, and a little island straight down from Yurrunga which is called ‘Moon Dreaming’ (at paras 14 and 16). Ms Thomas indicates that the special cultural and historical sites are not marked in a way an explorer would recognise them (at para 18).

6. In relation to E80/4539, I agree with the Government party (at paras 70-71) that there is no identified site of particular significance, rather, the native title party asserts that there are Dreamtime stories relating to the tenement area generally. The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Iron Duyfken at[39]; Heron at [43]).

7. The native title party’s contentions assert that the proposed licence areas are ‘site rich’ (at 19). I agree with the Government party (at 73) that this term is of no forensic value to the Tribunal as it does not form part of any identifiable legal test arising out of previous decisions. Furthermore, in relation to the native title party’s contentions (at 18), I note that the presumption asserted is incorrect. The presumption is that the grantee party will comply with the regulatory regime unless evidence suggests otherwise (see for example Money), and there is no such evidence to the contrary before me.

8. On the basis of the evidence before me I am unable to conclude that there are any sites of particular significance to the native title party within either E80/4466 or E80/4539.

9. As I have come to the conclusion that I am unable to be satisfied that there are areas of particular significance to the native title party within the proposed tenement area, it is not necessary for the Tribunal to address the question of the adequacy or otherwise of the regulatory regime.

10. The grant of the proposed licences are not likely to interfere with any areas or sites of particular significance to the native title party in the manner contemplated by s 237 (b) of the Act.

Major disturbance to land and waters (s 237(c))

1. The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).

2. The native title party’s contentions in relation to s 237(c) are outlined at [37] above. I agree with the Government party that the native title party have misunderstood the ambit of s237(c). The native title party seeks to demonstrate that permissible activities of the holder of an exploration licence will significantly disturb the capacity of the native title party to exercise its ‘rights’ on the area of the proposed tenement. These ‘rights’ include native title rights and interests and general activities. They then seek to characterise that disturbance as major. The Government party argues that the section is only enlivened when a real risk of major physical disturbance to land or water is identified (or the creation of rights whose exercise could lead to such disturbance) (see Smith at [23] and Rosas at [87]). The argument of the native title party seems to be that in accordance with their traditional law, any unauthorised disturbance of land or waters will have a major impact on the native title party’s traditions, way of life and rights. In one sense it is merely rerunning the arguments already used in relation to s 237(a) and (b). This view of s 237(c) is misconceived.

3. In relation to E08/4466, Mr Barney states that ‘exploration could damage all of the good water on the exploration license area or damage some of our special places linked to the kangaroo dreaming’ (at para 17). Mr Peters states that ‘exploration could damage our hunting areas and our special places’ (at para 22).

4. In relation to E08/4539, Ms Thomas states that miners have left all of their equipment behind out at ‘Rosie’s yard’ after they left the area (at para 21). She also states that the grantee party’s planned exploration could damage the native title party’s ‘important waterways and story places’ (at para 22).

5. The Government party submits that the grant of the proposed tenements is not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance to the land, for the following reasons:

   • The exercise of rights conferred by the exploration licences will be regulated by the State’s regulatory regimes with respect to mining, Aboriginal heritage and the environment (at 84(a));

   • Any authorised disturbance to land and waters caused by the grantee party may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following completion of exploration (at 84(b));

   • The areas of the proposed tenements have been subject to prior mineral exploration and possibly mining activity (at 84(c)); and

   • It does not appear that the area of the proposed tenements have any particular characteristics that would be likely to result in major disturbance to land and waters arising, given the activities proposed by the grantee party (at 84(d)).

6. In these circumstances, I do not find that major disturbance to land and waters of the type contemplated by s 237(c) of the Act is likely to occur as a result of the grant of the proposed licence.

Determination

1. The determination of the Tribunal is that the acts, namely the grant of E80/4466 and E80/4539 to Geological Resources Pty Ltd, are acts attracting the expedited procedure.

Daniel O’Dea
Member
1 August 2013

ANNEXURE 1
AFFIDAVIT OF GORDON BARNEY

I, Gordon Barney, of Warmun Community, in the State of Western Australia, affirm:

1. My name is Gordon Barney. My Aboriginal name is Norvaling.

2. My license says I was born on 1 January 1944. I know I was born at Alice Downs.

3. My mother’s name was Kungi. The exploration license area is on the land I learnt about from Kungi and I know she was connected to. My connection to the exploration licence area and the kangaroo dreaming story is through my grandmother, this was her country.

4. Kungi was mother of my two mothers and my family walked all over this country.

5. I am a Kija man through my mother who raised me up on this country.

6. I am one of the senior people for the planned Kija Combined Native Title Determination Application. Under our Law I have authority to speak about Malarngowem land matters. A group of Kija Traditional Owners nominated me to talk about the specific tenement area referred to below as I am the right person to talk about kangaroo dreaming.

7. I know the area where Geological Resources, the “grantee party”, have applied for Exploration Licence Number E80/4466 “the exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.

8. The area is south east of my community Warmun.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

1. I live at Warmun community which is north of the exploration license area. The exploration license area is closer to Halls Creek than to Warmun.

2. The exploration licence area falls wholly within Malarngowem country. Malarngowem country covers part of the country where a combined Kija claim for Native Title is currently being formulated.

3. Kija people use to go out to the exploration license area to a place we called Holiday Camp Yarmrangal which is near Old Dry Creek bore just inside the tenement. There was an old mine near Old Dry Creek.

4. We still go out to the exploration license area for hunting kangaroo; jerlee, turkey; bengalbul,goanna; jurnambine and echidna.

5. There is good spring water all of the way down the Panton River and especially at Fig Tree Bore.

   AREAS OR SITES OF PARTICULAR SIGNIFICANCE

6. I know the exploration licence area and the country around it very well. There are places in the tenement area that are important to the Malarngowem people.

7. There is a special dreamtime story about a dog who chased a kangaroo down the river and he jumped in the water so the dogs could not get to him. The kangaroos then turned into a rock which is there today. The dog chased him all the way down the River through the exploration license area.

   MAJOR DISTURBANCE TO LAND OR WATER

1. I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.

2. Their exploration could damage all of the good water on the exploration license area or damage some of our special places linked to the kangaroo dreaming.

3. Under our law anyone who is not Malarngowem need to ask permission before they can go out on to our country.

4. When strangers come on to country they need to talk to us first.

AFFIDAVIT OF RUSTY PETERS

I, Rusty Peters, pensioner, of Warmun Community, in the State of Western Australia, affirm:

1. My name is Rusty Peters. My Aboriginal name is Dilliyardi which is the same name as my brother who passed away.

2. I was born on 30 July 1935 at Springvale station.

3. My mother was Mary Kuckeye and my grandmother was known as Bulbardiya, she is buried on Alice Downs and was also born at Springvale. All of the old people spread out and travelled from Springvale. My grandfather from my mother’s side was also from around there. This is why I am the best person to speak about the exploration license tenement area.

4. I am a Malarngowem man through my family who raised me,

5. I am one of the senior people for the Malarngowem Combined Native Title Kija Claim. Under our Law I have authority to speak about Malarngowem land matters, this tenement is on Kija Country.

6. I know the area where Geological Resources, “the grantee party”, have applied for Exploration Licence Number E80/4466, “the exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.

7. The area is south east of my community Warmun.

   INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

8. The exploration area falls wholly within Malarmgowem country. Malarmgowem country covers part of the country where a combined Kija claim for Native Title is currently being formulated.

9. It is easier to get out to the exploration license area in the dry season.

10. We call the area where the exploration license area is the ‘Chinaman’s gardens’. This is a very important hunting and fishing area for us. There are people who have just left the Art Centre where I am sitting down making this statement who have gone out to Chinaman’s Garden for fishing in the last hour. I know the ranger was out there yesterday and I know that members of the Warmun community go out to the exploration license area whenever they can because it is a favourite hunting and fishing place which some families rely upon for meals.

11. When we go out to Chinaman’s Gardens we travel through Alice Downs.

12. We call the area Chinaman’s Gardens because there use to be a Chinaman who trades rice, vegetables and other things like tobacco, with the old people from our Kija community.

13. Out at Chinaman’s Gardens we hunt for kangaroo, echidna and goanna and teach our young people how to hunt.

14. In the exploration license area very big bush potatoes grow called Yalmanji. It takes about 3 to 4 hours to cook bush potato but it is worth it because they taste very good.

AREAS OR SITES OF PARTICULAR SIGNIFICANCE

1. I know the exploration licence area and the country around it very well. There are places in the tenement area that are important to the Kija people.

2. If strangers do not get a proper welcome to country then they may get bitten by a snake, get sick or something might happen to them.

3. Kangaroo Dreaming story is also connected to the exploration license area.

4. There is a burial site in the tenement exploration license area there were a lot of people who got killed at Chinaman Garden. Bad people knew where to find our old people how were trading with the Chinaman.

5. There is a law ceremony place in the exploration license area.

6. The best way to protect these places under our law and white law is to have an agreement with companies who want to explore the area. Some people come out to our country as if we do not have any rights to country or have a special connection to these places. The exploration license area is special to myself personally and the Kija people and it is important that we have explorers working so close to our community that understand and respect our relationship with country.

   MAJOR DISTURBANCE TO LAND OR WATER

7. I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.

8. Their exploration could damage our hunting areas and our special places.

9. Under our law anyone who is not Kija need to ask permission before they can go out on to our country.

10. When strangers come on to our country they need to get permission and have a survey done so we can preserve our culture and traditional ways.

ANNEXURE 2
AFFIDAVIT OF MARY THOMAS

I, Mary J Thomas, pensioner, of Warmun Community, in the State of Western Australia, affirm:

1. My name is Mary Jemima Thomas, my Aboriginal name is Yurungali.

2. I was born on 18 of August 1946 at Alexander Downs.

3. My mother was Jemima Nutt and she was born in Alexander Downs and her mother was known as Minnie, her aboriginal name was Bugalniel and she was born in Alice Downs.

4. I am a Malarngowem woman through my (family member) who raised me up from (time was raised in country).

5. I am one of the senior people for the Malarngowem Combined Native Title group which is Kija group. Under our Law I have authority to speak for Malarngowem land matters. A group of Kija Traditional Owners nominated me to talk about the specific tenement area referred to below. My bush name is the same as Yurrunga a place identified on the map which is inside the exploration license area.

6. I know the area where Geological Resources, the “grantee party”, have applied for Exploration Licence Number E80/4539 “the exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.

7. The area is south east of my community Warmun.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

1. I live at Warmun community which is not far north-west of the tenement area.

2. The exploration licence area falls wholly within Malarngowem country. Malarngowem country covers part of the country where a combined Kija claim for Native Title is currently being formulated.

3. Some of the exploration license are crosses into Chinaman’s garden, the main place known as Chinaman’s garden in near Yurranga. Chinaman’s garden is a very important place for our community to hunt in. A person who was sitting here with me not long ago went out to Chinaman’s garden today to go fishing.

4. In Chinaman’s garden there is good hunting and fishing. Out at Chinaman’s garden we hunt kangaroo; jerlee and goanna; jurnambine.

   AREAS OR SITES OF PARTICULAR SIGNIFICANCE

5. I know the exploration licence area and the country around it very well. There are places in the tenement  area that are important to the Kija people.

6. On the Little Panton River I take my children and grandchildren out to tell them all of my stories.

7. Along the Little Panton river is the Madgejar story. This story is called King Fisher dreaming. The story is about three king fisher birds who jumped through the river leaving rocks and islands. The birds played around in the mud and sand, they made mounds like sandcastles and it is the three kingfisher birds who made that river like it is now.

8. I haven’t been able to go out to share my stories since I became unwell.

9. There is a little island straight down from Yurrung, which is Moon Dreaming. The best way to share the story is to show the young people where these places are. I have paintings about these two stories. One painting about this story has pictures of the three humpies liked bow sheds in the Chinaman’s Gardens. We use to live in this place until an old woman passed away in that place which is when we moved around the three king fisher hills and moved into the new community. I learnt about these stories from my grandmother, not my real grandmother but a step grandmother, I used to everywhere with her.

10. I tell my special Dreaming stories to young people, but the story is made more meaningful when we can take the young people out to our special places and they can see the Dreaming sites for themselves.

11. The special cultural and historical sites are not marked in a way an explorer would recognise them for what they are but we know where they are. When we have an argument with an explorer we can tell them where these dreaming sites are.

12. The best way to protect these places under our law and white law is to have an agreement with companies who want to explore the area.

MAJOR DISTURBANCE TO LAND OR WATER

1. I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.

2. Out at Rosie’s yard which is a special birthing place, I know of Miners who have left all of their equipment behind after they left our country. These miners did not have a survey with us and did not have a proper relationship with Marlarngowem Kija people. Strangers who come out to our country need to look after our country and respect the place they are visiting, we will be here after they leave.

3. Their planned exploration could damage our important waterways and story places, we want the explorers to come and speak to us before they come out to our country.

4. Where the exploration license is very personally special to me and my family and it would be very sad for us if strangers come on to country they need to talk to us first and make a contract with us.