Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/ Brockman Iron Pty Ltd
[2010] NNTTA 106
•22 July 2010
NATIONAL NATIVE TITLE TRIBUNAL
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/ Brockman Iron Pty Ltd, [2010] NNTTA 106 (22 July 2010)
Application Nos: WO10/3 and WO10/4
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined (WC99/12) (native title party)
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The State of Western Australia (Government party)
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Brockman Iron Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 22 July 2010
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – whether acts likely to interfere directly with the carrying on of community or social activities – whether acts likely to interfere with sites of particular significance – whether acts likely to cause major disturbance to land or waters – expedited procedure not attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 151(2), 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 63
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Crowe & Others v State of Western Australia [2008] NNTTA 71; 218 FLR 429
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
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
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
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Representative of the
native title party: Ms Sarah Burnside, Pilbara Native Title Service
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party: Mr Kevin Connell, Austwide Mining Title Management Pty Ltd
REASONS FOR DETERMINATION
On 9 September 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act/NTA) of its intention to grant exploration licences E47/2039 and E47/2040 (the proposed licences) to Brockman Iron Pty Ltd (the grantee party) and included in the notice a statement that it considered the grants attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licences are located in the Shire of Ashburton and the size, location and overlaps with registered native title claims, determination areas and prescribed body corporates are as follows.
E47/2039 – 9.54 square kilometres, 10 kilometres south easterly of Pannawonica, 100 per cent overlapped by the Kuruma Marthudunera combined registered claim (WC99/12, registered from 24 June 1999).
E47/2040 – 34.98 square kilometres, 19 kilometres south easterly of Pannawonica, 100 per cent overlapped by the Kuruma Marthudunera combined registered claim.
On 8 January 2010, an expedited procedure objection application was lodged with the Tribunal by Mark Lockyer and Others on behalf of the Kuruma Marthudunera combined (WC99/12) (designated WO10/3 in respect of E47/2039 and WO10/4 in respect of E47/2040).
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 four month period, after the s 29 closing date for the lodgement of objections (i.e. after 9 January 2010), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the preliminary conference on 9 February 2010, the native title party advised it was not prepared to negotiate an alternative agreement on the basis of overarching heritage issues and requested that the matter proceed to inquiry with a Listing Hearing to be conducted on 21 May 2010.
The Government party lodged its contentions and evidence by 3 May 2010.
On 11 May 2010 the native title party requested an extension of the dates for provision of its contentions and evidence which was granted to provide for compliance by the native title party by 24 May 2010, followed by the grantee party on 31 May 2010, with the Listing Hearing scheduled for 3 June 2010.
Further extensions of time were granted to the native title party and its material was lodged on 8 June 2010. The grantee party did not lodge any contentions or evidence, instead relying on those of the Government party.
On 24 June 2010 at a Listing Hearing all parties reported that all contentions and evidence had been lodged and requested that the matter be heard ‘on the papers’ that is, without holding a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2) NTA).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry while noting that the Mining Act has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been modified.
The modified conditions are stronger than those considered in Walley. In particular Standard Condition 2 now contains the 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 Mines and Petroleum (DMP). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act (inserted post Walley) which requires approval by the Environmental Officer DMP of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (DIA) and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (Maitland Parker) at [31–[38], [40]-[41]. (See also the Federal Court dismissal of a native title party appeal from this determination in Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 and Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340.)
Evidence in relation to the proposed act
Government party documentation establishes the following underlying land tenure, past and current exploration activity on the proposed licences:
E47/2039
G08-9 PA67 Geothermal Discrete Area Release (100% overlap)
Historical Lease 394/611 (94 per cent overlap)
Historical Lease 394/859 (6 per cent overlap)
Lease 3116/8656 (1 per cent overlap)
Lease 3116/5070 (0.3 per cent overlap)
Lease 3116/5058 (0.6 per cent overlap)
Pastoral Lease 3114/1013 (YALLEEN) (97.6 per cent overlap)
Two Vacant Crown Land Parcels (3 per cent overlap each)
There is one ‘live’ amalgamated miscellaneous licence granted in 1971 overlapping at 13.2 per cent. There is a recent ‘dead’ exploration licence granted in 2005 and surrendered in 2007 overlapping at 86.8 per cent.
E47/2040
G08-9 PA67 Geothermal Discrete Area Release (100% overlap)
Historical Lease 394/859 (86.7 per cent overlap)
Lease 3116/5688 (2.7 per cent overlap)
Lease 3116/6348 (0.5 per cent overlap)
Lease 3116/6347 (7 per cent overlap)
Lease 3116/6349 (0.4 per cent overlap)
Lease 3116/5058 (0.2 per cent overlap)
General Lease I123390 (0.9 per cent overlap)
General Lease I123393 (0.3 per cent overlap)
Pastoral Lease 3114/1013 (YALLEEN) (88.1 per cent overlap)
There is one ‘live’ amalgamated miscellaneous licence granted in 1971 overlapping 35.5 per cent and two ‘live’ miscellaneous licences overlapping 1.1 and 0.2 per cent each. Recent ‘dead’ exploration licences include one granted in 1995 and withdrawn in 1996 overlapping 35 per cent and one granted in 2005 and surrendered in 2008 overlapping 64.5 per cent.
The grant of the proposed licences will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions imposed on both licences are:
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.
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.
No mining on a strip of land 60 metres wide with the Pannawonica Railway Line as the centreline and no materials being deposited or machinery or buildings being erected on such strip of land.
Blasting operations being controlled so that no damage or injury can be caused by fly rock, concussion, vibration or other means.
Additional conditions imposed on E47/2039 are:
No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.
No interference with the transmission line or the installations in connection therewith, and the rights of ingress to and egress from the facility being at all times preserved to the owners thereof.
Additional conditions imposed on E47/2040 are:
The rights of ingress to and egress from Miscellaneous Licence 47/155 and 47/212 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
Mining within a radius of 150 metres of any Australian Telecommunications Commission microwave repeater station being confined to below a depth of 60 metres from the natural surface.
No interference with the Australian Telecommunications Commission microwave repeater station ray-line.
Mining on any road, road verge or road reserve being confined to below a depth of 15 metres from the natural surface.
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed on the proposed licences.
The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act1972 (WA) and any Regulations thereunder.
The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environment Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The Government party documentation notes there are no Aboriginal communities in the vicinity of the proposed licences.
The Register of Aboriginal Sites held by the Department of Indigenous Affairs (DIA) pursuant to the Aboriginal Heritage Act1972 (WA) documents the following 3 registered sites within E47/2039:
8141 – Deepdale 82, artefacts/scatter, insufficient information, open access
10354 – Pannawonica Hill (Pulwul-Mirrayangu), mythological, permanent register, open access
21526 – Robe River (Gadjiwura), named place, permanent register (as assessed by Site Assessment Group)
The Register of Aboriginal Sites held by the Department of Indigenous Affairs (DIA) pursuant to the Aboriginal Heritage Act1972 (WA) documents the following 14 registered sites within E47/2040:
11562 – Ngalooin Pool, mythological/engraving, permanent register, open access
11563 – Yawiri Talu, ceremonial, permanent register, open access
15284 – Middle Robe 04, artefacts/scatter, insufficient information, open access
15285 – Middle Robe 05, artefacts/scatter, rockshelter, insufficient information, open access
15286 – Middle Robe 06, artefacts/scatter, rockshelter, insufficient information, open access
15287 – Middle Robe 07, artefacts/scatter, archaeological deposit, permanent register, open access
15305 – Middle Robe 24, artefacts/scatter, insufficient information, open access
21526 – Robe River (Gadjiwura), named place, permanent register (as assessed by Site Assessment Group)
24802 – Dd-07-05, artefacts/scatter, permanent register, open access
24803 – Dd-07-06, artefacts/scatter, permanent register, open access
24804 – Dd-07-07, artefacts/scatter and grinding patches/grooves, permanent register, open access
24806 – Dd-07-09, artefacts/scatter, permanent register, open access
24873 – Mar07-32, quarry, artefacts/scatter and grinding patches/grooves, permanent register, open access
24877 – Mar07-36, artefacts/scatter, permanent register, open access
In support of its contentions, the native title party’s submissions include the statement of Elaine James signed 4 June 2010 made in the following terms:
‘1.I am a Robe River Kuruma woman and a member of the Kuruma Marthudunera (‘KM’) native title claim group (WAD6105/98, WC96/73).
2.I am authorized to make this statement in support of the KM native title claim group’s contention that the grant of E47/2039 and E47/2040 to Brockman Resources (‘the Licences’) is not an act attracting the expedited procedure.
3.Except where I say otherwise the facts set out in this statement are within my own knowledge and belief, and to the best of my knowledge and belief are true and correct.
4.I was born at Old Yalleen Station in the claim area on 25 December 1949 and I grew up there with my mother Ruby and my father Finlay (both Kuruma people).
5.My father was a stockman and we travelled from station to station mustering – stations like Yalleen, Red Hill Station, Mount Enid Station and Yarraloola Station and Millstream Station.
6.Growing up I leant about Kuruma law and culture from my parents and from all the Kuruma old people who lived with us on the stations or who we met as we travelled around or at the holiday camps for law meetings. They taught me how to hunt for kangaroo, goanna and other animals, and where to find water, about bush plants, about rain season. They taught us about the land too.
7.My mother and father always told me “this is our country and you have gotta learn to look after it, you were born here, all your ancestors came from here, you have to look after it”. When we travelled around with my father he would teach us as we camped for dinner by asking us where we were. We would look around for the mesas and the rivers. That is how they found their way around in the old days and that is why it is important to keep the mesas and the rivers the same today.
8.Birthplaces are also places we are supposed to look after. Where the old people were born and where our generation was born. We have to look after those places for spiritual reasons.
9.Burial places should not be disturbed. The old people should be allowed to rest in their own country. Our old people said “we’ll always be there – make you feel stronger”.
10.There are many important sites on Kuruma country – law grounds, burial grounds, dreamtime places like thalu sites.
11.I moved away from Kuruma country when I was married to a Bardi man, but I always came back and now I live in Karratha – back near my country and my Kuruma people.
12.When I was growing up at Yalleen I leant about bush medicines. I still use bush medicines. I collect a plant called Jami in Jajiwara (the Robe River). You can use it as a medicine or you can rub it on your skin to take away bad spirits, so the good spirits will know that you are in the country – so the spirits of the old Kuruma people will know that you are. I have some time been compiling a book of all the bush medicine plants I was taught about. I want my children to know about them.
13.I am respected as a knowledgeable elder of the KM claim group.
Experience with Mining
14.I am a regular member of the heritage survey teams advising mining companies on ethnographic and archeological sites within the KM claim area that are in the path of ground disturbing exploration activity like roads and drilling.
15.I know what is involved in exploration. I have been on heritage surveys with many mining companies and they told me exactly what is involved. They use big machines like bulldozers to make a road to get into the exploration area. They use big machinery, drills. They have to bring the drills in on the back of trucks, so they have to make clear tracks for the trucks. I’ve seen what the drills do and the tracks – that is can damage sites. We don’t want that kind of disturbance near the river.
16.The river is our main concern. Our people have always lived along the river, there are so many camping places, where there is always water, and it’s been like that for generations. And if they do find some mineral like iron or copper, then the company will have to dig it out and leave a big hole in the ground.
17.On heritage surveys our job is to go in before the bulldozers and drilling and check if there are any sites or artifacts that might be damaged by the ground disturbing exploration activities. I have now been doing heritage survey work for 6 years and am very experienced at recognizing sites and artifacts.
Kuruma Traditional Law and Custom
18.In our traditional law and culture we must look after our country and respect it and keep it healthy.
19.We have to make sure that strangers do not go and damage our country – that’s why they need to ask us first so we know who is going there and what they are doing. We need to make sure they are not going to damage the country and important places in there.
20.There are also dangerous places in our country because of the spirits. People can get sick if they go to these places, maybe even die. We need to protect people s they don’t come to any harm, that’s why they need to ask come and talk to us before they go on our country.
The Licences
21.I have been shown a map of the Licence areas and was shown the Licence areas using GPS by the claim anthropologist, Linda Geddes. I know this area very well and I am able to talk about the sites in the Licences as they are in Kuruma country. The map I was shown is annexed and marked ‘EJ1’.
22.The country in these Licences is our place and other people have to ask us permission before they go there.
23.These places are important to the KM native title claim group as we have to protect them. If there is a drill hole or a big truck there, we will feel as though we failed in looking after the country, and we’ll get in trouble.
The Country Covered by E47/2039
24.These Licenses (both E47/2039 and E47/2040) cover the most important waterway in our country – the Robe River, which we call Jajiwara. We are the Jajiwara people – it’s the main river that belongs to the Kuruma people. Our old people lived all along that river. It is the most important place to us.
25.The Robe River is a no go zone for miners, a forbidden zone. It is a registered site (DIA Site ID 21525). The River is the most important thing to us. Water flows into the river from the sacred pool in Bungaroo, called Martimarti. It is outside the Licences but these waterways are all connected by the water snakes and the flow of the water- every pool has a name and they are all connected.
26.From the start to the finish there are grave sites, dream time places and thalus. There are also many artifact scatters from my old people living there. One example is a registered site (DIA site ID 8141) in E47/2039 there is an artifact scatter not far from the river.
27.There is another important site that is very close to E47/2039 – it may be inside. We can’t be sure without a proper survey. It’s another thalu, on a hill - it’s a little tree for Aboriginal traditional medicine. The story for this place is about the kurrumundu (the goanna). Whenever he gets bit by something poisonous, like a snake, or even if he has a cut, he comes to this bush and he rolls around in it, rubs himself against it, and it makes him better. At this thalu, if you know how to work it, you can make more of this anti-venom plant grow. The anti-venom is for people too. We use it as a traditional medicine to heal you if you get bit by a snake.
The Country Covered By E47/2040
28.In Licence E47/2040 there are also lots of artifact scatters, rock shelters and grinding stones – there are 14 registered sites in that Licence. That is because my old people have always lived along the river. There are also burials along the river in this Licence. We don’t want mining companies going up the river to disturb my old people’s family grave – my old people are there, our elders, my sister and pop. There’s a rain thalu in there too.
29.There are birth places all along the river. I was born on another part of the Robe River, and Old Algy Patterson, who was a very important elder to us was born in this Licence (E47/2040) by the river.
30.There is a men’s place I know there across from Churdy Pool in that Licence (E47/2040). I can’t talk about it much because it is a men’s place. It is a dangerous place and a sacred site. It’s a no go zone except for initiated men. No one can go there – you have to be very brave to go there. Only keepers, Kuruma men who have earned the right to go there can go there.
31.Pannawonica Hill (Parlapuuni) is the biggest story and heritage for our people and according to our law, it should be untouched, especially the river. Parlapuuni is not far from this tenement – about 4 km downstream.
32.There are some other dangerous places in E47/2040. There is a little devil man in that area of the Robe River. We call them bhali. One of our old law men, who has now passed away, was called Algy Patterson. Once he went hunting and came back with spears and kangaroo and boomerangs. He was walking and then realised he was walking in one place – the bhali was sitting on his shoulder and old Algy could feel him. He grabbed him and he chucked him on the ground and there is a plaque on the ground there where he chucked him. That place is near the wagon trail, between some hills on the way towards Churdy Pool from Pannawonica. That little devil, that’s where he stays now and it’s a bhali thalu and I know where it is.
33.You have to talk to him, let him know you are from that country and that you are just passing through and you don’t want to disturb him. He is very cheeky; he could look like anything he wants to so you don’t realise it’s him. Sometimes he can be good, but sometimes he can be very nasty, make you very sick. Even if you talked to him he would probably visit you during the night anyway. That is his resting place and you don’t want to disturb him. Anybody too – whitefellas too, he can make them sick and they shouldn’t go near there. He can be very savage – you could die if he makes you sick. Only a Kuruma elder can go there but we don’t go to that exact place because he could hurt us too.
34.I know another story about that bhali from years before – when old Mr. (Gordon) Lockyer (respected Kuruma elder now deceased) was just a baby. The old girl, his mother, she was collecting bush potatoes near the pool Ngalooin, in this Licence (E47/2040), and she was getting so many, big ones and all colours. She was getting so many in that river bed she wasn’t paying attention. The old fella, Mr. Lockyer’s step father, Sharky, he was sitting across and watching the baby. He saw the bhali and could see that bhali was getting closer and closer to the baby, coaxing him over. He tried to call out to get the attention of that old girl but she didn’t hear, and that bhali was getting closer. He clapped his sticks to get her attention and then she saw the bhali and got the baby away from him. That bhali, he was giving her all those potatoes just so he could get to that baby. Ngalooin pool is a registered site (DIA Site ID 11562) and is an important place for KM people too.
35.One of the most important places for us in this Licence (E47/2040) is Jadina. That is the burial and birth place for one of our most important elders: Algy Patterson. He was the keeper of the land, he was out teacher. His gravesite is in this Licence as well. Red Alexander (another respected KM elder) has his mother buried there, and her grandchild Anna Smith is also buried there. Just down towards the river is where Old Algy was born. That is a special place for us. We don’t want someone going and disturbing his resting place. We want our people to sleep, not to be disturbed by digging. You don’t go digging near a grave or burial, you have to be far away. People who know Old Algy and these can visit there, but strangers shouldn’t go there without talking to us first. There are also other old people who are probably buried along the river and in the hills near the river.
36.I visit the old man whenever I can, every chance I get, I’ve been coming back to this area along the Robe River. I travel all along the Robe River. We are always going along the Robe; if it’s not me then other families are. There are a lot of camping areas, good camping areas. We camp at Pannawonica hill, then visit Jadina and camp near the river there. Then there are good camping places at Ngalooin Pool, Churdy Pool. Mundary is a good fishing place.
37.We camp, fish, hunt, gather bushtucker, tell stories, get badi grubs, little witchety grubs – Janguna, we call them. They live in young gum trees and you find them along the river. We also get Malia (bush honey) from the paper bark trees which grow around the river. We also get white flakes of the gum leaves – warranungu. They’re sweet, like fairy floss, stuck to the leaves. These things grow along the river where there is water. Millinja is fresh water trout- it lives in the permanent pools all along the river. Jamni, a medicine for colds and coughs, that is in the river bed too.
38.Minjarra is a tree that only grows in the river. It’s for smoking naughty kids- you burn it and blow the smoke over the kids and it makes them strong. You speak the language when you put them in the smoke. It’s like a cork tree- it has a beautiful perfume smell, and you rub the ashes on the little kids too. It always grows in the river where there is plenty of water.
39.Because they are permanent pools, you know you can always go there and camp and have plenty of food and water. We teach out kids about them. These permanent pools have to be looked after. That’s why Kuruma people always go along the Robe River and to the country within these Licences whenever they can.
40.Churdy Pool is also an important place for us in this Licence (E47/2040). It’s a heritage site where we lived and grew up. It was first built in the 1920s and 1930s – that’s where all the Lockyer brothers grew up. The late Mr. (Gordon) Lockyer grew up there as a boy.
Consequences of disturbing Country and Sites
41.If these places were disturbed or changed, this would destroy our beliefs, our culture, our identity as a people. And it would be dangerous for us if other people go to those places – it could be my family, my kids that get hurt as punishment for not protecting the country from strangers. We want to save the white people as well, protect them. I know about one old white man, he was married to an Aboriginal woman but he made just one mistake and went swimming in that dangerous waterhole in Bungaroo and he died. That water hole is outside of these Licences but the water from Bungaroo flows down into the Robe River and it is all connected. There are dangerous pools like that in these Licences.
42.It is important that the mining company comes and talks to us so we can tell them where it is safe to go and so they know not to go to our significant places. We don’t know them and haven’t met them so we can’t trust them.
43.I believe that the grant of the Licences involves a real chance of interference with sites and areas of particular significance to members of the KM native title claim group.’
The evidence of Ms James is uncontested and I accept it. The native title party’s claim application notes Ms James as one of the persons claiming to hold native title and I accept that she has authority to speak on behalf of the native title party.
Also in support of its contentions, the native title party’s submissions include the statement of Mark Lockyer signed 3 June 2010 made in the following terms:
‘1.I am a senior member of the Kuruma Marthudunera (‘KM’) native title claim group (WAD6105/98, WC96/73) and I am an applicant on the claim.
2.I am authorised to make this statement in support of the KM native title claim group’s contention that the grant of E47/2039 and E47/2040 (‘Licences’) is not an act attracting the expedited procedure.
3.I was born in Roebourne in 1961. My father, Gordon Lockyer, was a senior law man and was the one who got the KM native title claim started.
Kuruma Law and Culture
4.I grew up on Kuruma country and travelled everywhere with my father who was a government dogger. I know everything about that country as I have been everywhere on it. My father and other old people taught me all about the country and about Kuruma law.
5.I know our law and culture. I am a senior initiated and knowledgeable Kuruma man and I have the authority to speak for country.
Experience with Exploration and Mining
6.I have seen a lot of mining over my lifetime. I have worked for mining companies in other regions – Granny Smith Mines.
7.As a senior man, I have been also monitoring and surveying for exploration. I have been doing heritage surveys for our native title claim for many years. I know a lot about what exploration involves. Before they go out they look at a map and put into a GPS where they think there is likely to be minerals. Then they make a plan for exploration drill lines, where they will drill. But before they drill anything, they also need roads to get the drill pad into the area. So, first they have to do a survey to find out if the roads or the drill holes will impact on any heritage sites. They have to do a survey with us to check. If there is a site, they have to go around it, and if they can’t go around it then they have to apply for a Section 18 to destroy that heritage site. They need to go with people who are from that country so they know where the heritage sites are.
8.Before any of this, the company has to come to the table and negotiate with the right people for country. All companies should do this.
The Licences
9.I have been shown a map of the Licence areas and have been shown the area by GPS on country by the claim anthropologist, Linda Geddes. I know this area very well and I have the authority to speak for it. A copy of the map I was shown is annexed and marked ‘ML1’.
10.People need to come and ask permission from the KM before they go anywhere on our country. The country in the Licences is particularly special to us, so strangers to that country must come and ask permission. They should come and speak to me, the same way I talk to the bosses of other places before I go there.
11.I need to be able to tell people where they can and can’t go in that country so they don’t go to dangerous places and get hurt, or disturb the spirits and then we get hurt.
The Country Covered by E47/2039
12.There are a hell of a lot of significant sites and places in these Licences. There is a hill which has a thalu for an anti-venom called Ngilangi. A thalu is like an increase site – you go there to ask the country to give you things. There are thalu sites for food, like kangaroos or goannas, and bush medicine, things that you need from your country.
13.This anti-venom thalu, I think is just outside the Licence E47/2039 but it could be inside; it is so close. We call the Ngilangi as well. There is a story about that. A snake bit a goanna, so that goanna ate some of the Ngilangi and went back and killed the snake. Everybody knows this. No one else can go there except us Kuruma people because the thalu belongs to the people who own the country. If other people go there, they get sick and they could die.
14.There is a very sacred waterway that flows through both of the Licences – the Robe River. It is registered with the DIA (Site ID 21526). We call the Robe River Jajiwara and it is the most important waterway for the KM native title claim. It is a big river, it comes all the way from the Hamersley Ranges and it is sacred to us. I know exactly where it comes from. I’ve been up there many times from when I was a little kid and I go back when I can. The river is so important to us that we are known as Jajiwara Kuruma people.
15.We are not happy about what is happening to the Robe River. Some people (mining companies) are going too close to the river. If there would be exploration it would not be good. All along the Robe River, all the warlu (spirit snakes that live in permanent pools) are very friendly, but with things happening in the river, like blasting or drilling, they may get upset. If they get upset, they could move on and then the permanent pool where they were would dry up. But the Robe River is also one big snake called bardimindi, he is all along the river. Bardimindi is very important to us. And we don’t want to disturb him.
16.We make rain at Puthulanya up in the Hamersley Ranges where the river comes from – it’s the main place where we’ve got a thalu to make rain. I’ve been there and I’ve seen it happen. Puthulanya is not in the Licences but it is connected to the river. Anything that happens to the river in the Licences will affect it in other areas, like where the rain thalu is. This is because the Robe River is one big snake – Bardimindi. If he is upset in one place, this could upset the river all the way along. Warlu can make big rains if they get angry, and floods affect the whole river and could harm people. When we make rain at Puthulanya, we name all the rivers, like for example the Robe River and the Kumina Creek.
The Country Covered by E47/2040
17.The most important thing to us in this Licence (E47/2040) again is the Jajiwara. We are Jajiwara Kuruma people and we have always lived along the river. There are important ceremonial grounds, burial places, birth places, permanent water holes and artifact scatters along the river in this Licence. There are 14 registered sites with the DIA in this Licence.
18.Another main place in this Licence is a burial place, a graveyard. One very senior law man from our group, Algy Patterson, was born in the area of E47/2040 and he is also buried there. Any exploration or mining around his burial site would be very bad. I know of places in the Amazon that are called ‘no man’s land’. The country around this burial place is similar for us – it is very important that that place is left as a ‘no miners land’ and I say that from my heart. Under our traditional laws and customs, no one should go there.
19.My niece and mum is buried there too – in white man’s terms, you’d call her my aunt. That is our sacred place. Other people can go there but they have to let us know first. Burial places are very important to us. They should not be disturbed whatsoever. We don’t want strangers going there. There are probably other burials along the river and in the hills, because this is where my people lived. We have never surveyed it so we can’t be sure, but we need to because our laws tell us that burials should not be disturbed at all.
20.Churdy Pool, which is in E47/2040, is an important place to us. It’s an old station (Wirrawarra) where lots of old people were born and reared up. For instance, Marshal Bobby, a member of our native title group, grew up there. It is a good place to stop and camp. There is a hill next to Churdy Pool that is a thalu, and that thalu is in E47/2040 also. The hill was destroyed by mining in the early 1970s, but there are still important engravings on that hill. The engravings are about the thalu, and it is still a sacred place.
21.There are some places in this area (Licence E47/2040) that no one goes to – only initiated men go there. There are old men’s ceremonial grounds and initiation places in that Licence. They haven’t been used for a while but they still hold that same significance and are powerful.
22.I know all the men’s places in there but because of our laws, I can’t talk about them too much or say where they are. No women are allowed to go there. In the old days, a woman would get killed if she went there. If any women, or whitefellas went there it would make us feel really bad. It’s against our laws and traditions for anyone apart from initiated Kuruma men to go there. Anyone else could get harmed by the country. Women shouldn’t go there and any strangers to the country need us to go with them so that we can talk to the country, and so they are under our protection. I have special duties and obligations about these places.
23.It is my duty to look after those men’s places in E47/2040. If other people do the wrong thing, it all comes back to me and I’ll get into big trouble. This is my responsibility as a senior initiated Kuruma man.
Going out on Country
24.I go to this area within the Licences whenever I can. Other Kuruma people go out as much as they can too. It belongs to us and our old people. We go back there, tell stories, and it reminds us who we are. We make friends to the spirits that are still there and keep them company, let them know we still care about the country and are still looking after it.
25.The permanent water, the river and the hills are the most important sacred things to us, so we like to go there whenever we can. There is everything there that we need. It has never happened yet that there are things aren’t there and I think that is because we still look after our country.
26.Most of all, Kuruma people have a feeling of belonging when we are in those places (the country inside the Licences). I first stop at that cemetery and talk for about an hour to my old people buried there. Then we camp along the river where there is water and snakewood trees, near where old Algy was born. Then anywhere along the river I stop and camp. We hunt, fish, collect other bush tucker and medicines and tell stories.
Consequences of Disturbing Country and Sites
27.Rules about our country are very serious. I’ve been having a lot of trouble with those rules. A lot of Aboriginal people who aren’t from our country work out on our country in mining, they get sick. When they go back to their country they get sick and I get into trouble. Me and my big brother, we were out at one mine in our country and now he’s gone. That’s one man and I keep wondering, will I lose my mother? A lot of white people don’t think about these things but us people, we know what can happen: we can lose a lot of our mob. But the mining company doesn’t think about that.
28.It is risky for a company to come and explore in these areas. Elsewhere in my country there are all these mesas that used to have names, every one of them. My father used to name every one of those mesas all the way along. Now they are destroyed, got no names and they are not pretty. That is what mining has done and it has been dangerous – like the thalu near Churdy Pool which was damaged by mining. I have lost a lot of my old people over this kind of thing. I don’t want those things to happen to the country in the Licences.
29.We don’t know this company and we want them to come and speak with us, prove that they are going to do the right thing in this place. They have to come to the table and then we can set the rules, tell them where they can and can’t go.
30.Based upon my knowledge as a Kuruma elder, and on our laws and traditions, I believe that the grant of the Licences involves a real chance of interference with places of particular significance to us.’
The evidence of Mr Lockyer is uncontested and I accept it. Mr Lockyer is a named applicant to the native title party’s native title claim and he is a senior initiated law man. I accept that he has authority to speak on behalf of the native title party.
The native title party contends that the grant of the proposed licences are not acts attracting the expedited procedure because their grant is likely to interfere directly with the carrying on of their community or social activities (s 237(a)); or likely to interfere with areas or sites of particular significance to them (s 237(b)). No contention is made in relation to s 237(c).
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 it are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (Smith) at 449-450, ([23]). Direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451, ([26])). The assessment is also contextual taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451, ([27])).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title parties in relation to the area of land concerned.
The evidence of Ms James relating to the contemporary community or social activities of the native title party establishes the following.
She visits areas of the tenement on various occasions for activities such as camping, hunting, fishing and gathering bush tucker.
She also gathers traditional medicine from the tenement areas.
Other members of her people visit the area and young people are brought to sites within the tenement areas to be taught about their country and the law.
She sometimes goes to a burial site called Jadina and talks to the old people buried there.
The evidence of Mr Lockyer relating to the contemporary community or social activities of the native title party establishes the following.
He visits areas of the tenement on various occasions for activities such as camping, hunting, fishing and gathering bush tucker.
Kuruma people gather traditional medicine from the tenement areas.
Other members of the Kuruma people visit the area for camping, hunting, fishing and gathering bush tucker.
He visits birth and burial places of Kuruma elders on the tenement areas and spends time talking to the people buried there, as part of his community and cultural obligations.
As a senior initiated law man he looks after the sacred sites on the tenement areas.
My finding is that this level of community or social activities is not likely to be interfered with directly by the grant of the proposed licences and activities carried out pursuant to them. There are no established physical communities of claim group members in the immediate vicinity. Visits to the proposed licence area appear to occur by members of the native title party from time to time but there is no indication in the evidence as to the frequency of such visits or the numbers of persons involved or where they came from.
The tenement areas have been the subject of limited previous exploration activity but there is no evidence that this exploration has caused any difficulties to the native title party in the conduct of their community or social activities and is not a factor in considering this issue. Pastoral activities over the years have probably limited the capacity of the native title party to carry out community or social activities.
The total area of the Kuruma Marthudunera native title claim is approximately 15,759 square kilometres being an extensive area over which (despite areas in which exploration and mining are already taking place) the native title party will be able to carry out its community or social activities. Consistently with previous Tribunal determinations I find that the size of the proposed licence areas, in the context of the much larger claim area, make it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities. Further, in practice, the grantee party’s access to the area would be limited to the area in which exploration is taking place and temporary.
Sites of particular significance (s 237(b))
On the predictive assessment approach the Tribunal is required to determine 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 (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21 at 34-35). There are 3 sites recorded on the Register kept under the Aboriginal Heritage Act within E47/2039 and 14 sites recorded on the Register within E47/2040 but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licences or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The evidence of Ms James and Mr Lockyer identifies the following sites.
Burial and birth sites of important Kuruma elders along the Robe River within the tenement areas, where the spirits of the elders still reside (including at Churdy Pool).
Men-only ceremonial law grounds within the tenements.
An anti-venom thalu site (Ngilangi) that Ms James and Mr Lockyer believe is likely to be within E47/2039.
The entire Robe River is a registered site and is extremely significant to the native title party.
Significant numbers of artefact scatter sites along the Robe River within the tenement areas.
Engraving sites along the Robe River.
Permanent pools that are purported to be the homes of warlu (spirit snakes).
Given the nature of these sites including the gender restriction in relation to many of them, I am satisfied that they are sites of particular significance to the native title party in accordance with their traditions in the proposed licence area. In addition, I am satisfied that the Robe River (Jajiwara) is a site of particular significance to the native title party. This is a reasonable inference to be drawn from its nature (mythological) and because the native title party identifies itself by the Robe River (Jajiwara Kuruma People).
Ms James and Mr Lockyer also contend in their evidence that there are various burial sites along the Robe River in the tenement areas that are not listed and need to be identified. It is a common theme amongst most cultures in the world that burial sites are specially significant places that should not be disturbed and burial sites have customarily been found by the Tribunal to be sites of particular significance to the relevant claimant group. I find that this is the case for the native title party in these proceedings.
I also accept that the anti-venom thalu (Ngilangi) is a site of particular significance to the native title party. It has a particular story associated with it that has been related by both Ms James and Mr Lockyer and the evidence suggests a particular importance attached to that site.
Mr Lockyer also relates in his evidence that there are men-only ceremonial grounds within the tenement area that are not currently used, but still hold special power and significance for the native title party, and that it is his role and responsibility to protect and care for those sites. The location of these sites has not been disclosed, but given the nature of those sites this is not unexpected. I accept that it would cause particular distress to the native title party for women and uninitiated men to access those ceremonial grounds, and it is clear from this that these are sites of particular significance to the native title party despite ceremonies not being conducted there in recent times.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies on the regulatory regime based on the Aboriginal Heritage Act which 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 protective regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. (See for example Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [26]–[34]).
In the present case, the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the tenement. In the absence of evidence to the contrary I must assume that the grantee will fully exercise its rights under the Mining Act, (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
The grantee party has not provided any specific evidence of its intentions with respect to the protection of Aboriginal sites or consultation with the native title party regarding those sites. However, there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the Aboriginal Heritage Act. In accordance with Government policy the grantee party executed a Regional Standard Heritage Agreement (RSHA) and sent it to the native title party before the s 29 notice was given from which I can infer that the grantee party is aware of its legal responsibilities.
The Government party contends in its submission that in making a predictive assessment the Tribunal can have regard to the enhanced effectiveness of the Government party’s regulatory regime for the protection of Aboriginal sites (see Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 (Champion) at [71], (GPS21) and the grantee party’s attitude to the RSHA: Champion at [30-[34] (GPS23). They contend that the Tribunal may have regard to the extent the grantee party will go to ensuring that the risk of interference is minimised: Champion at [30] & [34] (GPS24).
The area of the proposed tenement contains a number of sites of particular significance to the native title party. Despite the protective effect of the Aboriginal Heritage Act and RSHA, their existence and imposition does not settle the question of whether, in the circumstances, it is not likely that they will suffer interference (see Walley at [51] Champion at [33] and Crowe & Others v State of Western Australia [2008] NNTTA 71; 218 FLR 429 at 454 [89]). Every inquiry which comes before the Tribunal needs to be carefully assessed in light of its own circumstances. In this matter, notwithstanding the protective effect of the Aboriginal Heritage Act and the RSHA, I believe the uncontested evidence of Ms James and Mr Lockyer as to the sites of particular significance within the area of the proposed tenements, is such that further, more detailed negotiation needs to take place before exploration should be undertaken. The evidence of Ms James and Mr Lockyer establishes that there are sites of particular significance that are not identified in the Register that exist within the tenement areas. In my view, the evidence establishes the relevant areas to be ‘site rich’ which consistently with previous Tribunal determinations provides sufficient basis for a finding that, despite the regulatory regime in place and intentions of the grantee party, interference with sites of particular significance is likely.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as no contentions were made by the native title party in respect of it and a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licences E47/2039 and E47/2040 to Brockman Iron Pty Ltd, are not acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
22 July 2010
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