Maitland Parker and Others on behalf of the Martu Idja Bunyjima People/Western Australia/Giralia Resources Nl
[2010] NNTTA 40
•25 March 2010
NATIONAL NATIVE TITLE TRIBUNAL
Maitland Parker and Others on behalf of the Martu Idja Bunyjima People/Western Australia/Giralia Resources NL [2010] NNTTA 40 (25 March 2010)
Application No: WO09/346
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection application
Maitland Parker and Others on behalf of the Martu Idja Banyjima People (WC98/62) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Giralia Resources NL (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Melbourne
Date: 25 March 2010
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – 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 – access agreement required with native title party – conditions imposed on the grant of the exploration licence – s 237 interference or disturbance to land unlikely and expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 26(2), 29, 31, 148, 151(2), 155, 237
Mining Act 1978 (WA), ss 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Aboriginal Affairs Planning Authority Act1972 (WA)
Land Act 1933 (WA)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea, Member
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1979] FCA 332; (1997) 74 FCR 391
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Daniel O’Dea, Member
Kevin Peter Walley & Ors Ngoonooru Wadjari People/Western Australia/Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso, Member
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, Deputy President
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, NNTTA 18 (1 February 2002), John Sosso, Member
Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group/Western Australia/Garry Evan Same, NNTT WO01/461, [2002] NNTTA 157 (2 August 2002), Hon C J Sumner, Deputy President
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340)
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso, Member
Rosas v Northern Territory (2002) 169 FLR 330
Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), (Hon E M Franklyn QC
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia vSmith (2000) 163 FLR 32
Representatives of the Mr Paul Sheiner, Gadens Lawyers
native title party: Mr Rowan Gallagher, Gadens Lawyers
Representatives of the Mr Timothy Sharp, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party: Mr Mike Joyce, Giralia Resources NL
REASONS FOR DETERMINATION
On 8 April 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant the exploration licence E47/1957 (‘the proposed licence’) to Giralia Resources NL (‘the grantee’), 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).
The proposed licence comprises an area of 12.63 square kilometres located 80 kilometres north west of Newman in the Shire of East Pilbara. It is 100 per cent overlapped by the registered claim of the Martu Idja Banyjima (WC98/62 – registered from 29 September 1998).
On 27 May 2009, Maitland Parker and Others, on behalf of the Martu Idja Banyjima Native Title Claimants (WC98/62) (‘the native title party’), made an expedited procedure objection application to the Tribunal. On 7 August 2009, the Innawonga Bunyjima also lodged an objection. This objection was withdrawn by agreement on 24 November 2009.
On 30 June 2009, Deputy President Sumner (also referred to throughout this determination as “Hon C J Sumner”) was appointed as the Member for the purposes of the conduct of the inquiry, and, on the same day, the expedited procedure objection application was accepted by the Tribunal.
In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. 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.
At an adjourned Status Conference held by the Tribunal on 25 November 2009, in the absence of a resolution by agreement, the Government and grantee party requested the application proceed to inquiry. The Government party also requested that directions be amended to permit a further short period in which to comply. This request was supported by all parties and was subsequently approved by Deputy President Sumner on 30 November 2009. An additional request to amend the native title party’s date for compliance with directions was made by the representative for the native title party on 14 January 2010. Deputy President Sumner approved this request on the same date, requiring native title party compliance on or before 8 February 2010.
The Government and native title parties have lodged contentions and evidence, and the grantee indicated at the adjourned Listing Hearing on 18 February 2010 that it would rely on Government party submissions. All parties have agreed that the inquiry can be heard ‘on the papers’, that is, without holding a further hearing.
On 22 February 2010, I was appointed by Deputy President Sumner as the Member for the purposes of the conduct of the inquiry. I am satisfied that the objection can be adequately determined on the papers (s 151(2) Act).
Legal principles Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), 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 Condition (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources (now the Department of Mines and Petroleum (‘DMP’)). Further, s 63 of the Mining Act (s 63(aa)) has been amended to require the approval of a program of work by the Environmental Officer of the Department of Industry and Resources (now DMP) for the use of ground disturbing equipment.
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] –[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
Contentions of the Government party
In general, the Government party contends that the proposed licence will not give rise to any of the issues raised by s 237 (a), (b) and (c) of the Act.
The Government party contends that the grant of the proposed licence is not likely to interfere directly with the carrying on of community or social activities of the objectors in relation to the proposed licence for the following reasons:
a.‘There are no Aboriginal communities situated on the proposed tenement;
b.In relation to pastoral leasehold included within the proposed tenement, section 20(5) of the Mining Act 1978 provides that, unless the written consent of the occupier is obtained or unless the warden by order otherwise directs (other than in relation to land referred to in section 20(5)(c)) the holder of a mining tenement is not entitled to prospect, fossick on, explore, mine on or under or otherwise interfere with any Crown land that is:
(i) for the time being under crop, or which is situated within 100 metre thereof;
(ii) used as or situated within 100 metres of a yard stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(iii) situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;
(iv) the site of or situated within 100 metres of any cemetery or burial ground;
(v) land subject of a pastoral lease within the meaning of the Land Administration Act 1997 which is the site of, or situated within 400 metres of the outer edge of, any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than the lessee of that pastoral lease and;
General
c.Section 63 of the Mining Act 1978 deems every tenement of the type proposed to be granted subject of the holder fulfilling certain conditions set out in the said section, ie. reporting discoveries of minerals, making safe any holes, pits, trenches, etc, and preventing damage to property and livestock.’
The Government party contends that the grant of the proposed licence is not likely to interfere with areas or sites of particular significance to the objectors according to their traditions due to the protective provisions of ss 5, 17 and 18 of the Aboriginal Heritage Act 1972 (WA) (‘the AHA’). The Government party refers to provision s 63 of the Mining Act 1978 (WA) and the conditions which are to be imposed on the grant of the proposed licence to assert that the proposed licence 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.
Contentions of the native title party
The native title party contends, in para 5 of its submission, that the grant of the proposed licence will be a future act attracting the expedited procedure if, and only if, all of the following conditions in subsections (a), (b) and (c) of s 237 of the Act are met, namely, the grant of the proposed licence is not likely to interfere directly with the carrying on of community or social activities; not likely to interfere directly with areas or sites of significance; and 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 and waters concerned. The native title party’s statement of contentions is supported by the affidavit of Mr Rowan Gallagher, sworn on 8 February 2010, which in summary, sets out the history and discussion between the native title party and the grantee party.
The native title party contends that:
The proposed licence will directly and physically interfere with community and social activities.
The proposed licence will interfere with the spiritual and emotional well being of the community.
The grantee party has not committed to including the native title party in the heritage survey process.
The two overlapping native title parties - Martu Idja Banyjima and Innawonga Bunyjima - have specific heritage values and an agreement with one is not necessarily a guarantee of the heritage of the other. This may cause conflict between the two native title parties.
The grantee party has not offered a Regional Standard Heritage Agreement (‘RSHA’) or Alternative Heritage Agreement.
The AHA does not guarantee protection of Aboriginal cultural heritage.
Not all sites are registered and an absence of registered sites within the proposed tenement does not equate to an absence of sites of significance to the native title party.
The proposed licence is one of the few areas left in the claim area that has not been subject to extensive exploration activity.
The proposed licence is likely to cause a major disturbance to land and waters within the Martu Idja Bunyjima claim area.
Evidence of the Government party
The Government party’s documentary evidence establishes the underlying tenure of the proposed licence to be as follows:
· Vacant Crown Land (25.4 per cent overlap);
· Pastoral Lease (Marillana) 3114/984 (74.6 per cent overlap)
· The area comprising of vacant crown land is the also the subject of a Department of Environment and Conservation order for the protection of mulga.
The map provided by the Tribunal’s geospatial unit, which was circulated to all parties on 9 March 2010 and is uncontested, confirms that there are no heritage sites within or overlapping the proposed licence area. However, the following sites are within 10 kilometres of the boundaries of the proposed licence:
Amphitheatre, Trapyard CK Site ID 10107, permanent register, open access, no gender restrictions.
Lower Trapyard Spring Site ID 10837, painting, permanent register, open access, no gender restrictions.
Yandi rail corridor 41 Site ID 32, engraving, permanent register, open access, no gender restrictions.
Yandi rail corridor Site ID 33, artefacts, permanent register, open access, no gender restrictions.
Yandicoogina 23 Site ID 9954, artefacts, insufficient information for the register, open access, no gender restrictions.
Dolerite Spring Site ID 8793, engraving, permanent register, open access, no gender restrictions.
Dolerite Spring Site ID 10108, engraving, permanent register, open access, no gender restrictions.
Tabinna Site ID 7318, mythological, permanent register, open access, no gender restrictions.
Tribunal mapping also reveals a large number of registered sites within 20 kilometres of the northern boundary of the proposed licence.
The evidence of the Government party does not establish extensive exploration activity over the proposed licence. One ‘dead’ tenement application, E47/621, was granted on 1 April 1993 and surrendered on 23 March 1995 and one ‘live’ exploration licence, E47/1904, which encroaches on the proposed licence by 25 per cent. E47/1904 has been the subject of an objection, Tribunal file number WO08/987, by the Martu Idja Bunyjima people. This objection was subsequently dismissed by the Tribunal on 28 August 2009 for non compliance under section 148(b) of the Act.
The grant of E47/1957 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). Additional conditions, as evidenced by the Government party, will be as follows:
5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-
·The grant of the Licence; or
·Registration of a transfer introducing a new licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
The following Endorsements will be imposed:
·The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations there under.
·The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulation 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Evidence of the native title party
‘I, Maitland Parker of c/- Karijini National Park, Western Australia, being duly sworn MAKE OATH AND SAY THAT:
1.I am a Fortescue Banyjima elder.
2.I have been shown a map of the tenement application E47/1957.
3.The tenement is in the headwaters of Yandicoogina Creek.
4.Yandicugi is the name for one of my Nyiyaparli Elders. He is Fortescue Banyjima too from his ancestors.
5.Water from Yandicoogina flows into Weeli Wolli Creek and from there into Fortescue Marsh.
6.I have worked as a ranger in Karijini National Park for most of the last 20 years. I was given the opportunity to live on and look after our country. Over the last 20 odd years, I have spent a lot of time working on and travelling throughout our country and have observed a lot of changes.
7.I grew up respecting our Aboriginal culture. We were taught about it by all the relatives but mainly the mother and father and grandparents.
8.As you get to your teens as a male, you are put through men’s business or cultural law. The learning covers such things as what you can eat, what you can’t eat, what you can kill and what you can’t kill. What you can track and how to tell what tracks mean or what fruits are, what is this tree, what are the medicines, bushes or plants and what are their uses. In addition, we had to know the structure of skin relations, proper manners, respect and the significance of our land and its sites.
9.We have taught our children and are teaching our grandchildren all these things. To be able to teach them properly though we need to be able to take them out onto country to show them the environment, animals and plants. They also need to know that our knowledge and law and culture is acknowledged and respected by other people.
10.In our song line we sing about three types of water. Salty water, the red water from the claypans and fresh water.
11.The songline follows the fresh water as it flows through the tenement area underground and on the surface along Yandicoogina and Marillana Creeks to Weeil(sic) Wolli and the Fortescue Marsh. That’s a story in itself in regards to the water that flows down the Fortescue and comes out at Mill Stream.
12.There are stories, ceremonies and songs for each type of water coming down. I heard the stories as a teenager which are related to different tribes and related to law and culture. Fortescue Bunjima law and culture comes east from Mill stream up by Fortescue. Water is important in our law and culture as it eventually goes back to Mill Stream. Water carries our culture across the country. It connects with song lines and different groups, including rain, thunder and lightening(sic).
13.Our Fortescue Bunjima law is a very strong slaw(sic) with ceremonies at Youngalina and Cane River and Five Mile. Men and women have strong business. For old people, it is to look after country and our songs are cycle moving through the country.
14.A person’s songs and stories are very important to that person and when that person dies it is very important their songs are still carried on. The songs and stories help and teach our young people about the country and how to look after it.
15.We the Fortescue Banyjima people are responsible for making sure the lore that is connected with the claim area is respected and the country is looked after. When we visit the country and waterways in particular we call and sing out so that the spiritual beings known we are there. For example at waterholes we blow water and sing out “Ngurra”. Under our lore we need to introduce strangers to the land in the same way.
16.Mining companies don’t listen to the right people and don’t respect our law and culture. The(sic) need to come and sit down and talk to us before they start interfering with the country. If the mining companies don’t talk to us first we can’t look after our country by practicing our law. How can we really teach our grandchildren about the country and look after it if mining companies don’t talk to us before they start disturbing the country? We can’t even practice our culture by welcoming and introducing strangers to the country.
17.Most of the members of the overlapping native title claim group are Milyarnpa or Top End Banyjima. They have a different law to Fortescue Banyjima people and can’t speak for the tenement area – they don’t have authority to talk about the law for that country. If Giralia engage the overlapping claim group to do surveys on the tenement and not MIB it will cause conflict between the two groups and communities.
18.I often go hunting in and around the tenement area. Not many people go there so I know I might find big game like Kangaroo, emu, gunumandu or bush turkey. These are hard to find in other areas where there has been a lot of drilling and exploration activity. There is other bush tucker in that country as well including gajawarri and jilbaring.
19.Recently I flew over the MIB claim area in a helicopter and observed how much of the country had been disturbed by mining and exploration and in particular the disturbance caused by the drill pads and access tracks for exploration. This has happened all over the claim area in the last 10 years. The country has been devastated and cut up just for drilling. The drill lines are visible from the air like scars on the country. The access roads allow not only the mining company but other mine workers and tourists to access the area for camping. I have seen this happen time and time again.
20.There are a lot of mines near the tenement area including BHP Marillana Creek mine and the RTIO Yandicoogina Mine. These mines are expanding all the time and eventually the whole of Marillana and Yandicoogina Creeks will be mined for Channel Iron Ore (CID). Companies like Giralia are taking up all the small bits that have not already been taken by BHP and RTIO and conducting large drilling programs to find small reserves of ore left over or ignored by BHP and RTIO.
21.It is increasingly important to Fortescue Banyjima people to protect and preserve these small areas of land, outside the Karijini National Park where native title has been extinguished, that are still relatively undisturbed by mining and exploration. These are all we have left and unless we can do this there will not be any land where we are able to teach our grandchildren in an undisturbed environment. Exploration in the tenement will constitute a major disturbance given the importance of these remaining areas to Fortescue Banyjima people. Protection of these non-disturbed areas should also be important to non-Aboriginal people concerned about the extent of mining activity all over the Pilbara.’
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to them are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk) (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 into 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 relevance and weight to be given to such evidence will depend on the circumstances of the case (Western Australia vSmith (2000) 163 FLR 32, NNTT WO99/511, Hon E M Franklyn QC at 51 [35]; Kevin Peter Walley & Ors Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, [2001] NNTTA 78 (17 August 2001), John Sosso, Member (now Deputy President Sosso), at [14]-[19]; Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, NNTTA 18 (1 February 2002) John Sosso, Member (as noted above, now Deputy President Sosso), at [25]-[32].
The native title party contends that the native title party carry out community and social activities of men’s business or cultural law, learning of and collecting bush food and medicine for ceremonial purposes which will be directly interfered with by the future act now contemplated. Mr Parker states at AF13, ‘Fortescue Bunjima law is very strong slaw(sic) with ceremonies at Youngalina and Cane River and Five Mile’. According to the Tribunal’s geospatial mapping, Youngalina is approximately 137 kilometres north east of the exploration licence, Cane River is approximately 325 kilometres east of the exploration licence and Five Mile is located 115 kilometres north east of the proposed licence. These three ceremonial grounds are not located within or in the vicinity of the proposed licence. The affidavit evidence of Mr Parker relating to community and social activities is insufficient to sustain a finding that the exploration activity is likely to interfere with the conduct of ceremonies.
Mr Parker states at AF18, ‘I often go hunting in and around the tenement area. Not many people go there so I know I might find big game like kangaroo, emu, gununmandu or bush turkey. These are hard to find in other areas where there has been a lot of drilling and exploration activity. There is other bush tucker in that country as well including gajawarri and jilbaring’. Mr Parker further states at AF13-15, ‘For old people, it is to look after country and our songs are a cycle moving through the country. A person’s songs and stories are very important to that person and when that person dies it is very important their songs are still carried on. The songs and stories help and teach our young people about the country and how to look after it. We the Fortescue Banyjima people are responsible for making sure the lore that is connected with the claim area is respected and the country is looked after. When we visit the country and waterways in particular we call and sing out so that the spiritual beings know we are there. For example at waterholes we blow water and sing out “Ngurra”. Under our lore we need to introduce strangers to the land in the same way.’ However, the evidence is not specific enough to support a finding of sustained community or social activities on the proposed licence areas which are likely to be interfered with by exploration activities.
In making a contextual assessment, the issue now turns to other factors. The evidence establishes that this is not a case where there has been extensive prior mining or exploration activity. In terms of current exploration activity, the Tribunal has often found that the relatively limited and temporary nature of exploration activity is not likely directly to interfere with community and social 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), John Sosso, Member (now Deputy President Sosso) at [43]-[44]).
The evidence adduced in this matter by the native title party does not provide a basis for suggesting that there are significant community or social activities carried out by the native title party within the proposed licence. The evidence of the native title party in terms of s 237 (a) is significantly less extensive than that produced in Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group/Western Australia/Garry Evan Same, NNTT WO01/461, [2002] NNTTA 157 (2 August 2002), Hon C J Sumner (see discussion at [21]-[22]). The evidence does not establish more than a general reference to ceremonial activities and hunting in the MIB claim area by the native title party. Whilst the activities of a physical nature are said to be conducted ‘often’, more precise locations of these activities are not given and this makes it difficult to make a predictive assessment over the area in the native title party’s claim. Also, only a general reference is made to the collection of bush tucker and medicines. In these circumstances, I find that the grant of the proposed licence is not likely to interfere with the community or social activities of the native title party within the requirements of section 237(a) of the Act.
The grantee party relies on the submissions of the Government party, I must therefore determine these matters on the basis that the rights given under the Mining Act 1978 (WA) will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]). What can be said with confidence is that even soil sampling has the capacity to interfere with sites and exercise of the full rights accorded by a prospecting licence certainly does. In the absence of evidence of the grantee party’s intentions, the question of direct interference must be assessed by reference to the relevant aspects of the Government party’s regulatory regime under the Mining Act 1978 (WA), including provision s 63 and the conditions to be imposed on exploration licences (Walley) at [9]. The native title party evidence is uncontested, it is taken into account in this determination and in making the predictive and contextual assessment as to the likelihood of interference with the community or social activities, I must also assume that the grantee party will fully utilise its statutory prerogatives in circumstances where the tenement is granted.The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place as significant ground disturbing exploration will only occur at any one time over a small area. Government party documentation reveals that the size of the proposed licence is 12.66 square kilometres. The area of the Martu Idja Bunyjima claim is approximately 9554.42 square kilometres, much larger than the area of the proposed licence, thus making it less likely that exploration on the area of the proposed licence will impact on any community and social activities of the native title party, as contemplated in s 237(a) of the Act, which I can infer are likely to be carried out over a broader area (Cheinmora at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso, Member (as previously noted, now Deputy President Sosso) (at [43]-[44])).
In relation to evidence from the native title party statement of contentions at para 32, that the proposed licence is likely to affect the spiritual and emotional well being of the community, and thereby directly interferes with the carrying on of social and community activities, the Tribunal accepts this evidence. However, the Tribunal has dealt with similar situations in other determinations (Walley at [13]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 169 FLR 1 at [50]-[62]) when considering the amendments to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), (Hon E M Franklyn QC at [12]): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’ I adopt Deputy President Franklyn’s findings for the purposes of this inquiry and have not had regard to this aspect of the evidence. The evidence of actual physical activities is sufficient to uphold the objection without taking account of the fears which are provoked by the grant or feelings of sadness which would arise from exploration activities on the land but which do not translate into interference with the community or social activities of the native title party.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine under section 237(b) 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 are no registered sites within the proposed licence area, 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 AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protection regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007) at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The evidence provided by the native title party in the statement by Mr Parker and in Dr Neale Draper’s report is uncontested, and I am satisfied that there are likely to be sites of significance to the native title party in accordance with their traditional laws and customs within the claim area. However, neither the statement of evidence by Mr Parker, nor the report by Dr Neale Draper, refers to any particular area or site, or provides any basis for making a predictive assessment that any site of particular significance to the native title party, other than by general reference to important places, exists within the proposed licence. Conversely, the Tribunal map does confirm that Yandicoogina and Marillana Creek are approximately 7 kilometres to the north, and Weeli Wolli is located approximately 10 kilometres south east of the proposed licence. Based on Dr Neale Draper’s report, I am prepared to infer that these sites may be of particular significance to the native title party; however, they appear to be located sufficiently beyond the proposed licence to ensure that interference with them is unlikely. The native title party argues that the MIB claim group (known as Fortescue Banyjima) is quite distinct from the members of the overlapping native title party – Innawonga Banyjima, otherwise known as the Top End Bunyjima. On this basis, the native title party argues that Martu Idja Banyjima are the right people to speak for country and it is only through consultation with them that sites of particular significance can be adequately protected.
The native title party is required to provide sufficient detail and specificity in order to allow the Tribunal to make the predictive assessment in accordance with s 237(b) of the Act. As the evidence in this matter is not specific and is less extensive, it leads to my conclusion that there is insufficient evidence to establish that there are sites of particular significance within the area of the proposed licence, both in terms of the portion of the proposed licence which comprises Vacant Crown Land and the pastoral lease. That being the case, it is not necessary for me to proceed to consider the question of presumption of regularity and I find that, in accordance with s 237(b) of the Act, it is not likely that any sites of particular significance will be interfered with, within the requirements of section 237(b).
As already stated, the grantee party has not provided definitive evidence of its exploration intentions and so the matter is therefore to be determined on the basis that the rights given under the Mining Act 1978 (WA) will be exercised to the full. It is a matter of regret that the grantee party has decided not to provide definitive evidence of its intentions, but that is the grantee party’s prerogative; however, I accept that the grantee will act lawfully and in accordance with the AHA on the basis that it has been prepared to enter into a RSHA with Innawonga Banyjima, whose claim also entirely overlaps the proposed licence. Further, it is apparent from the affidavit of Rowan Gallagher, at AF21, that the grantee party will endeavour to include Martu Idja Banyjima in the heritage survey process, although it was made clear, according to Mr Gallagher’s affidavit, that the grantee party would have to confer with its board to ascertain whether an agreement can be formed, ‘in the interest of good relations’. At the end of the day, though, I can see no practical reason why a RSHA, in compliance with the requirements of the government party, would not be concluded to cover all relevant parties.
Major disturbance to land and waters (s 237(c))
In relation to the third limb of s 237 of the Act, an evaluative judgment is required on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it). This is 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 (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1979] FCA 332; (1997) 74 FCR 391).
The statement of evidence of Mr Parker, in AF5, that ‘water from Yandicoogina flows into Weeli Wolli Creek and from there into the Fortescue Marsh’ and in AF 10 to 12 he explains that ‘In our song line we sing about three types of water. Salty water, the red water from the claypans and fresh water. The song line follows the fresh water as it flows through the tenement area underground and on the surface along Yandicoogina and Marillana Creeks to Weeli Wolli and the Fortescue Marsh. That’s a story in itself in regards to the water that flows down the Fortescue and comes out at Mill Stream. There are stories, ceremonies and songs for each type of water coming down. I heard the stories as a teenager which are related to different tribes related to law and culture. Fortescue Bunjima law and culture comes east from Mill Stream up by Fortescue. Water is important in our law and culture as it eventually goes back to Mill Stream. Water carries our culture across the country. It connects with song lines and different groups, including rain, thunder and lightening(sic).’
Mr Parker states, in AF16, that ‘Mining companies don’t often listen to the right people and don’t respect our law and culture. The(sic) need to come and sit down and talk to us before they start interfering with the country. If the mining companies don’t talk to us first we can’t look after our country by practicing our law. How can we really teach our grandchildren about the country and look after it if mining companies don’t talk to us before they start disturbing the country? We can’t even practice our culture by welcoming and introducing strangers to the country’.
I accept that the presence of strangers on the subject area may be upsetting to the native title party. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural concerns about unauthorised access, in terms of the native title party’s traditional laws and customs, alone, cannot form the basis of the finding of major disturbance. There must be some physical disturbance over and above that which it has been judged will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that could be pointed to, will be the exploration activities to be conducted by the grantee party. There is no evidence that there will not be compliance by the grantee party with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (Standard Conditions 1 – 4). In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party are not sufficient to establish that major disturbance is likely to occur. Accordingly, I find, in my opinion, that there will not be major disturbance to land or waters in this case, as contemplated by s 237(c) of the Act.
Determination
The determination of the Tribunal is that the grant of exploration licence E47/1957 to Giralia Resources NL is an act attracting the expedited procedure.
Neville MacPherson
Member
25 March 2010
0
16
0