Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/Cazaly Iron Pty Ltd
[2010] NNTTA 131
•16 August 2010
NATIONAL NATIVE TITLE TRIBUNAL
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/Cazaly Iron Pty Ltd, [2010] NNTTA 131 (16 August 2010)
Application No: WO09/996
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
Mark Lockyer and Others on behalf of Kuruma Marthudunera combined (WC99/12) (Applicant/native title party)
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The State of Western Australia (Government party)
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Cazaly 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: 16 August 2010
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is 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(aa)
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
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
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Counsel for the
native title party: Ms Sarah Burnside, Pilbara Native Title Service
Representative of the
native title party: Ms Samantha Rosenfeld, Yamatji Marlpa Aboriginal Corporation
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative of the
grantee party: Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd
REASONS FOR DETERMINATION
On 12 August 2009, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (the Act) of its intention to grant exploration licence E47/2041 (the proposed licence) to Cazaly Iron Pty Ltd (the grantee party) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence originally comprised an area of 22.25 square kilometres, located 17 kilometres south of Pannawonica in the Shire of Ashburton. It is 100 per cent overlapped by the Kuruma Marthudunera combined registered claim (WC99/12, registered from 24 June 1999). No other native title claims overlap the proposed licence.
On 11 December 2009, Mark Lockyer and Others on behalf of the Kuruma Marthudunera combined Native Title Claimants (the native title party) made an expedited procedure objection application to the Tribunal.
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 12 December 2009), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the status conference on 10 March 2010, the native title party informed the Tribunal they were awaiting an outcome of a field trip to the proposed licence area to decide whether they would pursue an agreement with the grantee party or request the matter go to inquiry. The grantee party advised they sought to reach an agreement. On 26 May 2010, following negotiations between the parties on an agreement, the native title party made a request for the matter to go to inquiry.
Contentions and evidence were lodged by the Government party on 31 May 2010, the native title party on 15 June 2010 and the grantee party on 22 June 2010.
Following a listing hearing on 24 June 2010, directions were made for the parties to provide further contentions and replies which were concluded on 20 July 2010.
All parties agreed that, following the submission of further material, the inquiry could 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) of the Act).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (Walley), 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.
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), formally Department of Industry and Resources (DoIR). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act, 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 on the proposed licence:
PA67 Geothermal Discrete Area Release (100 per cent overlap);
Historical Lease 394/611 ( 100 per cent overlap); and
Yalleen Pastoral Lease 3114/1013 (100 per cent overlap).
The Government party documentation notes there are no Aboriginal communities in situated on the proposed licence area.
The Department of Indigenous Affairs (DIA) documentation provided by the Government party reveals eleven registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (AHA) within the proposed licence area as originally notified as follows:
Puluntjurr-Marrnu (Site ID 6390 – water source – insufficient information, closed access, no restriction);
Jimmawurrada Creek (Site ID 6460 – ceremonial, meeting place, camp – permanent register, closed access, no restriction);
Six Mile Well (Site ID 6465 – ceremonial - permanent register, closed access, no restriction);
Jimmawarrada Creek 10 (Site ID 6859 – artefacts/scatter - permanent register, open access, no restriction);
Jimmawarrada Creek 01 (Site ID 6974 – artefacts/scatter - permanent register, open access, no restriction);
Jimmawurrada Creek 03 (Site ID 6976 – quarry, artefacts/scatter - permanent register, open access, no restriction);
Jimmawurrada Creek 04 (Site ID 6977 - Artefacts/Scatter – lodged, open access, no restriction);
Jimmawarrada Creek 06 (Site ID 6979 – artefacts/scatter - permanent register, open access, no restriction);
Mesa J East 02-1 (Site ID 19694 – artefacts/scatter - permanent register, open access, no restriction);
Bbr-02 (Site ID 22175 – artefacts/scatter - lodged, open access, no restriction);
Bbr-03 (Site ID 22176 – artefacts/scatter - lodged, open access, no restriction).
The map provided by the Tribunal’s Geospatial section confirms the location of the eleven registered DIA sites. In addition, the map shows there are numerous other DIA registered sites located within 5 kilometres of the proposed licence area.
The grant of the licence 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 require that the pastoral lessee is notified of the grant of the proposed licence and of certain exploration activities (conditions 5-6).
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 licence.
‘1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.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.’
In addition, the Government party will place the following condition on the grant of the licence:
‘In respect of the area covered by the licence the Licensee, if so requested in writing by the Kuruma Marthudunera, the applicants in Federal Court application no. WAD 6090 of 1998 (WC99/12), such request being sent by pre-paid post to reach the Licensee’s address, c/- McMahon Mining Title Services Pty Ltd, PO Box 8638, Perth Business Centre, Perth WA 6849 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Kuruma Marthudunera the Regional Standard Heritage Agreement endorsed by peak industry groups and the Pilbara Native Title Services.’
Attached to the contentions of the Government party is a copy of the statutory declaration executed by Mr Tony Ly on behalf of the grantee party, declaring that they had offered to enter into a Regional Standard Heritage Agreement (RSHA) with the native title party, sending it to the Pilbara Native Title Service on the 9 July 2009, for the native title party to execute should they accept the offer of agreement.
The Government party documentation reveals that there is one ‘live’ tenement and one ‘pending’ tenement that affect the proposed licence. The ‘live’ tenement AML 70/248, a granted mineral lease, was marked out on 15 October 1971 under the Holder, Robe River Ltd and overlaps the proposed licence area as originally notified by 59.7 per cent. The ‘pending’ tenement E47/1255 overlaps the proposed licence area by 14.3 per cent. The documentation does not list extensive activity in the area of the proposed licence with three ‘dead’ tenements withdrawn or cancelled in the years 1976 and 2008.
Further details of the underlying tenure affecting the proposed licence were submitted by the grantee party in its second contentions (15 July 2010). The grantee party said that the area of the grant of the proposed licence will be less than 50 per cent of the total area applied for following the excision of all underlying tenure (AML 70/248 and E47/1255). Unfortunately this information on excision was not provided in the Government party’s original contentions and evidence and the Tribunal requested the Government party to clarify the situation.
The Government party informed the Tribunal that the grant of the proposed licence would exclude the area that overlaps with the underlying tenure AML 70/248 and no rights will be resumed by the proposed licence in future on expiry of AML 70/248. I am satisfied that the proposed licence, when granted, will permanently exclude this area.
With respect to the underlying tenure of E47/1255, there is a priority interest to another grantee party and currently the area of overlap is excluded from the grant of the proposed licence. However, as E47/1255 is ‘pending’, if the application becomes ‘dead’ (i.e. is withdrawn) before the proposed licence is granted, that area of the overlap can be acquired by the grantee party and be incorporated into the proposed licence area. Although in practice it is unlikely that the area of overlap of E47/1255 will be included in the grant of the licence the possibility exists that it will happen and for this reason the Tribunal must assess this matter on the basis that the area of E47/1255 will be included in the grant. The grantee party accepts this position but confirms that if E47/1255 is withdrawn prior to the grant of E47/2041 and the ground becomes available as part of the grant of E47/2041, the grantee party will, as contended for in relation to the proposed licence area generally, comply with all necessary legislative and governmental requirements.
In summary, the proposed licence area with which this inquiry is directly concerned is now 40.30 per cent of the original area notified pursuant to s 29 (i.e. some 8.96 square kilometres).
Because of the evidence relating to the significantly reduced area over which the grant will be made (of which it was not initially aware), the native title party requested an extension of time to amend their evidence. The native title party said they had been prejudiced by the late evidence as their evidence had been prepared on the basis that the entire area notified would be granted and that the evidence gathered was not specific as to the exact location of sites and places of particular significance within the reduced area.
The grantee party opposed this request on the basis that this was not new evidence as the situation was clear from the relevant provisions of the Mining Act that the area of AML 70/248 would be excluded from the grant (see especially s 18). It says that because AML 70/248 is a granted mining tenement, the ground is not open for mining and could not be granted to the grantee party as part of the current process. Extra ground will not be added to the grant and there will only be a reduction in area from that originally notified which should not prejudice the native title party as they have had since 5 March 2010 to gather evidence (when they first requested an inquiry). The Government party’s position was that very little if any extra time should be given to the native title party for the reasons provided by the grantee party.
I declined the native title party’s request on the basis that the existing evidence was sufficient to enable me to make a determination. However, I have some sympathy for the position the native title party found itself in and it is my view that the initial contentions and evidence of the Government party setting out the circumstances of a tenement grant which it says attracts the expedited procedure should specify the area of actual ground that will be granted. While it can be said that lawyers acting for the native title parties should be aware of relevant terms of the Mining Act, this is not always the case, and there may be circumstances where a native title party is not represented or represented by a person without legal qualifications. In my view, it is incumbent on the Government party at the outset to relate the relevant provisions of the Mining Act to the particular facts of the matter before the Tribunal and to identify areas which will not be covered by the grant. Knowledge of the precise nature and area of the grant enables the native title party to focus its contentions and evidence on the relevant area.
Evidence provided by the native title party
In support of its contentions, the submission of the native title party includes the signed statements of Elaine James (EJ) and Mark Lockyer (ML) made in the following terms:
‘STATEMENT OF ELAINE JAMES
1.I am a member of the Kuruma Marthudunera (‘KM’) native title claim group and I am a senior woman. I am authorised to make this statement in support of the KM native title claim group’s contention that the grant of E47/2041 (‘Licence’) is not an act attracting the expedited procedure because it is likely to interfere with areas or sites of particular significance to the KM native title claim group.
2.I am acknowledged and respected by other Kuruma and Marthudunera people as a knowledgeable elder of the KM claim group.
3.Growing up I learnt 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, the stories about our land and the rules about looking after country.
4.My mother and father always told me “this is our country and you have got to 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.
Experience with Mining
5.I am a regular member of 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.
6.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.
7.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
8.Kuruma law is very strict. Marlga – the keeper of the Law – he laid down the rules back when the world was soft, what some people call the dreamtime. We have to obey those rules that were handed down and passed from generation to generation. We have to pass it on to our children and it’s always been kept.
9.In our traditional law and culture we must look after our country and respect it and keep it healthy. If we don’t look after it, the spirits can punish us or our families by making us sick. We also have to look after particular places, like burial sites, birth places, ceremonial sites and thalu sites.
10.Part of our duty to look after country is to protect it from strangers, from people who are not from the country and don’t know the country. We have to make sure that strangers do not go and damage our country and the important places in our country. That’s why they need to ask first so we know who is going there and what they are doing.
11.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 so 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.
12.Our law is very strong about waterways. The Robe River, which we call Jajiwara, is our main concern. The river is so important to us that we are known as Jajiwara people; it is the main river that belongs to the Kuruma people and our main tribal area. We have to look after it and look after all the other waterways that flow into it.
13.Our people have always lived along the river and have been born and buried near it. I was born near the river, though not in this Licence. There are many camping places along the river where there is always water, and it’s been like that for generations. We don’t want any disturbance near the river. Kuruma people believe that the Robe River is a no go zone for miners, a forbidden zone for miners.
The Licence
14.I have been shown a map of the Licence by Linda Geddes, a PNTS anthropologist who works with our claim group. A copy of the map is annexed and marked ‘EJ1’. I know the area of country within the Licence. It’s a main place for hunting and camping. And we do story telling there, we tell stories out on country so our families know where we come from. I can speak about this country. There are some very significant places in the area of the Licence.
15.Firstly, the waterways in the Licence area are particularly significant. Jimmawurrada Creek goes to the Robe River and feeds it. It is the gateway to the Robe and is therefore regarded as very significant under our laws. We need to look after Jimmawurrada Creek, and other waterways that feed our river, to make sure that the river is healthy and doesn’t dry up.
16.Jimmuwurrada itself is the trail of the big warlu, a powerful spirit watersnake. The warlu, is on his way down from the Bungaroo to the Robe River at Garlbari – that’s the main pool straight down from Mesa J. Garlbari is a very dangerous place and no shadow can fall on the water. If the warlu’s pathway is damaged at any point (including within the Licence), he could get very angry – something very bad could happen. The warlu rests up in Mali Mali, a pool in the Bungaroo Valley. If he gets angry he can come down again.
17.Secondly, there is a very old Kuruma dreamtime story that involves Jimmawurrada Creek and relates specifically to some places in the Licence. The story starts at Six Mile Well and runs all the way to where Jimmawurrada Creek meets the Robe River. The story comes down from Yalleen and goes right down the Robe River. The story covers the whole Jimmawurrada Creek, including the section in the Licence, and tells us about a big ‘devil dog’.
18.The story tells of a big dog who was eating Kuruma people. An old fella when he was hunting there saw him – the dog would take the people and carry them up a tree. The old fella went back and told his people to go to the top of the hills. He sang a song to make the biggest rain and to make it flood. The flood washed the dog away and there were big holes in the ground where the big flood drowned the dog. That place is in this Licence, at Six Mile, and that’s where the dog got buried. It’s a registered site (Site ID 6465).
19.Because of this story, there are restricted places within the Licence area. I have kept away from them because we were told by our old people that the dog might come back in spirit form and hurt somebody – we might wake him up. The smell of young babies or women’s breast milk might wake him up. The spirits can smell the difference between a man and a woman.
20.Only initiated men can go to the places within the Licence associated with the dog. Law men have some power to settle them, they carry ‘gears’ that can save them. Law men can tell the spirits that they’re not going there to harm or disturb them. Whitefellas don’t know these things. If whitefellas go there, they have a different smell so that dog will know they are strangers and he might get up and something might happen to them. The dog can come back in spirit form and harm them, and us.
21.The dog is very dangerous. He could harm people from the company and we don’t want them to get hurt. If they get hurt, then it’s our problem because we’re not keeping our rule to protect strangers. We need to go and show you where it’s safe. If you disturb the dog, his spirit will come back and we would need a very strong man to get rid of him again.
22.We need to know exactly where the company wants to do their exploration. There are dangerous places and we stay away from them because we know about them, but the mining company doesn’t know because they have not come to talk to us.
Jimmawurrada Creek
23.As well as the specific places in the Licence, the whole of the creek is important to us. There are many sacred sites and places and stories on the river but also all along Jimmawurrada Creek. Because the whole creek is a pathway for a warlu, any impact on part of the creek could affect it all the way along. Also, some of the water in the creek comes up from the sacred pool, Mali Mali, in the Bungaroo area. This is one of the most important waterways in our country.
Interference
24.If the mining company goes to the wrong places, it will be us who will be in danger because we are the carers of that place. It’s a dangerous place for us.
25.If they come and disturb those places by going to them, I’m going to feel bad, or something bad is going to happen to me, because the spirits are very strong out on the country. They’re watching our backs, making sure we do the right thing. Even if I cook a plain kangaroo tail near that river, I could disturb them. You can’t cook it near a permanent pool, because the warlu can smell it and he would get angry, he can come down and flood that area, the whole valley. He can drown you or he can take your spirit.
26.It would be dangerous for us if other people go to places – it could be my family, my kids that get hurt. 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 waterhole up in the Bungaroo, which flows into this tenement, and he died. His spirit was caught – the warlu grabbed it.
27.I don’t want anything to happen to this part of our country. I want it left as it is because of the sites in it. If these places were disturbed or changed, this would destroy our beliefs, our culture, our identity as a people. That’s why we have to see where they are going and be there if they are drilling holes – see with our own eyes – not just maps. The best way is if they come to the table and talk to us.
Conclusion
28.Other people, including mining companies, should ask us for permission before going on our country, especially places that are important like the creek in the Licence and places associated with the dog in our dreamtime story. We can show the company where it is safe for them to go – safe for them, and safe for us. We have to protect these places at all costs – they are priceless.
29.Because of the dangerous places inside the Licence, I believe that the grant of the Licence involves a real chance of interference with sites and areas of particular significance to members of the KM native title claim group.’
‘STATEMENT OF MARK LOCKYER
1. I am a member of the Kuruma Marthudunera (‘KM’) native title claim group and I am an applicant on the claim. I am authorized to make this statement in support of the KM native title claim group’s contention that the grant of E47/2041 (‘Licence’) is not an act attracting the expedited procedure because it is likely to interfere with area or sites of particular significance to the KM native title claim group.
2.I am a knowledgeable and senior man. I am an initiated man and I know our Kuruma law very well.
3.Under our traditional laws and customs, all the members of our claim group have to look after country. As a senior man, I have a very high duty to look after it. I try to do the best I can to look after my country, my father’s country. I’m Kuruma and I look after my country best that I can.
4.I have been very involved in heritage protection on KM country, and I am aware of what is involved in exploration. I have seen the tracks and drill holes that are used in exploration.
Significant Places in the Licence
5.I have been shown a map of the Licence by Linda Geddes, a PNTS anthropologist who works with our claim group. A copy of the map is annexed and marked ‘ML1’. I know the country in the area of the Licence very well and I have traditional authority to speak for that country.
6.The country in the Licence is very important to Kuruma people and it contains 11 registered sites. That place has spiritual value to us. I go there as often as I can, and every time I see the old, the ancestors. That’s where the old people used to travel on their way to see all the tribes up the top, the Eastern Guruma Mob. There are also some burial sites in the Licence- our people have always lived there so there would be some burial sites there. The old people showed me where they are, but I don’t know there names. They only had Aboriginal names – oldfellas.
7.When the old people travelled through this area, they would go past the Balumalu, where they got chased by the devil dog, just past Six Mile Well – Ngarrawaja. It’s important to us because our old people always travelled along there. Kuruma people today have also grown up around there; I also travelled along there with my father.
8.Balumalu is a registered site in the Licence (DIA register Site ID 6465) and it is very significant because it is a dangerous place. It’s near Six Mile Well and it relates to the dreamtime story about that devil dog. The story is that when people first saw it, they made a big rain to wash him away and there are big marks in the ground where that devil dog was. Six Mile Well and where that devil dog is are very dangerous places. No one can go there. That devil dog is buried there and if he woke up, if he was disturbed, it would be very bad for us. It would be easy for someone who didn’t know about this place to wake the dog up accidently.
9.The dog is still active and can still wake up and do damage. One time a man was going with a message stick to tell people up in Eastern Guruma about the Law meetings starting. On his way along the Jimmuwarrada Creek he was getting chased up every tree by these big dogs. He was on his way up to Palm Spings. On his way back, my old people were there – Kuruma people who live along the Robe River and Jimmawurrada Creek – and he told them about how this big dog and all its pups had been chasing him. So they all went to that place and killed them with spears. There are big holes three metres deep under where those dogs were.
10.There is also an important creek called Jimmuwurrada in the Licence. It is the main tributary into the Robe River. The Robe River, which we call Jajiwara, is sacred to the KM native title claim group and we have to look after it. This means we have to look after the other waterways that feed it. Protecting Jimmuwurrada is very important; looking after the creek is part of looking after the Robe River.
11.We don’t like to think about what could happen if that creek was disturbed, because our laws tell us that the impossible could happen – unbelievable stuff does happen in our country. It would be dangerous for us and we are really worried about that. It could be dangerous for white fellas too. Where there are permanent water pools along the creek there are snakes in there. If any parts of the creek got disturbed by exploration activities then that snake could decide to leave and all the water would dry up. Any impact on parts of the creek (such as the areas in the Licence) could affect it all along its length.
12.Because the old Kuruma people used to travel through this area, there are a lot of artefacts in the Licence. There is a big camping ground, ceremonial ground (which women cannot go to) and quarry there, and people use the quarry to make the artefacts. These are all near the devil dogs and Ngarrawaja. We don’t want it interfered with because all these places are connected. Also, there is a registered site which is a quarry in this tenement (Site ID 6976).
13.People go fishing in the Licence area as well. Ngararu pool is where they fish, which means it’s like a grandchild. I go there now. It’s on the old public road that goes to old Yalleen, where the old people used to go up the creek to Yalla.
14.There are so many sites in this area – archaeological and ethnographic. Even I could get hurt if I go to the wrong places.
Jimmuwurrada Creek
15.KM people have been born all along Jimawurrada creek. They got their midwives, ngarlu and mimmi, when they were born there. A lot of KM people grew up there as well – this is my father’s and my grandfather’s country.
16.On Jimmuwurrada (the creek) there is one pool that is no good. No one should go there because there is a snake there. The pool is called Tuleree, which means ‘a lot of water’. If someone goes there, that will interfere with the site and be dangerous for that person and for the KM people. We might even lose our lives if someone goes there. Tuleree is not in the Licence but it is close – between three and six kilometres upstream. Not even all KM people are allowed to go to these places. Only men should go near Tuleree because there is a big quarry there. It’s for Jimmari, which is a rock that we use for ceremonies. I look after that place.
Conclusion
17.Other people have to ask permission from the KM to go to the area within the Licence because they don’t know what’s there – it could be dangerous. In some places, like where that devil dog is, it is very dangerous for people to go there.
18.I am not happy about the mining company exploring in this place without talking to us first. I don’t feel good about that. We want mining company to come and talk to us – they can’t just go there. We don’t know these people – we want to sit down and talk with them so we know they will do the right thing.
19.I believe that the grant of the Licence 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 and Mr Lockyer is uncontested and I accept it. Ms James is a senior woman who is respected as a knowledgeable elder of the native title party. Mr Lockyer is a senior and initiated man and one of the named persons comprising the applicant and registered claimant. I accept that Ms James and Mr Lockyer have the necessary authority to speak for country on behalf of the native title party.
Contentions of the native title party
The native title party contends that the grant of the proposed licence is not an act attracting the expedited procedure because the grant is likely to interfere with areas or sites of particular significance to them (s 237(b)). Although the objection application referred to them, no contention is made in relation to s 237(a) and (c) of the Act.
Details of the native title party’s contentions under s 237(b) include in particular that:
The area including and surrounding the proposed licence is dominated by important waterways which are of particular significance to the native title party, ‘most notably the Jimmawurrada Creek’, at para [34]. The contention provides reference to the statements of Ms James at paras [15]-[17] and [23] and Mr Lockyer at paras [10] and [15]-[16].
The Jimmawurrada Creek is associated with a powerful warlu or a spirit watersnake and ‘the Native Title Party’s traditional law holds that the creek is the warlu’s pathway.’ The impact to the Jimmawurrada Creek could ‘upset’ the warlu and thus result in disturbance, at para [36], (EJ para [16]).
The proposed licence is part of the Jimmawurrada Creek that flows to the Robe River, which is an extremely sacred place for the native title party and any impact on Jimmawurrada Creek, could have flow on effects to the Robe River, at para [52]. Jimmawurrada is a significant in ‘its own right’, at para [53] and the entirety of the Creek is an area of particular significance to the traditions and customs of the native title party, at para [54]. There are many significant sites located along the length of the Creek, which include a pool – Tuleree, which is the home of the warlu, and a quarry near Tuleree which is restricted to men and contains a rock (Jimmari) used for law ceremonies, at para [54]. Water, within the Creek, flows in part from a sacred pool, Mali Mali, which is outside the proposed licence, at par [55]. Members of the native title party have been born along the Creek and the traditional law obliges members to care for birthplaces, at para [56]. Six Mile Well (Ngarrawaja) is located close to the proposed licence and is important under traditional laws and customs of the native title party, at para [57], (EJ paras [9], [12]-[13], [15], [23] and ML paras [7]-[8], [10], [16]).
The native title party contends that according to traditional law, disturbance to one area of Jimmawurrada Creek could affect the whole of the Creek, at para [58], (EJ para [15] and ML para [10]).
The main site relating to the dreamtime story is Balumalu and a place according to traditional law is where the dog is buried. The Balumalu is also a restricted place where only initiated men can visit ‘and even then are not ‘safe’ and must proceed with caution. Under the traditional laws and customs of the Native Title Party, women and/or people who are not from Kuruma country (who are strangers to country) who go to these places within the Licence could disturb the dog’s spirit and be harmed as a result, at para [39], (EJ paras [19]-[20] and ML paras [8] and [14]).
According to the native title party’s traditional laws and customs, the dog is still active with stories that tell of its spirit harming the native title party since the ‘dreamtime’, at para [40], (ML para [9]).
As ‘keepers’ of the sites in their traditional lands and waters, the native title party contends that Balumalu and other sites in the proposed licence associated with the dog should be restricted and not accessed by the grantee party, at para [41], (EJ paras [9]-[11], [19]-[20] and ML para [8]).
Access by a woman and/or stranger within Balumalu and to country and areas associated with the ‘devil dog’, including low impact activities by the grantee party would result in interference and, the native title believes, ‘the visiting of sickness or injury upon representatives of both the Grantee Party and Native Title Party.’ This would be a ‘cause for concern and distress on the part of the Native Title Party’, at para [42], (EJ para [20]-[21] and ML para [8]).
There are significant consequences to the native title party ‘for not abiding by traditional law and custom when accessing mythological sites such as Balumalu.’ Disturbance to these places (such as drilling) would have grave consequences, at para [43], (EJ paras [20]-[22] and [24]-[26] and ML para [8]).
The proposed licence area contains burial sites of the native title party, and contends that burial sites should not be accessed by the grantee party, at para [45], (EJ para [9] and ML para [6]).
The area of the proposed licence is of great historical and traditional importance to the native title party, at para [47]; there is real risk of interference with the sites of particular significance if the proposed licence is granted prior to consultation between the native title party and the grantee party, at para [48]; and the safest course of action is for the grantee party to meet with the native title party to discuss the exploration plans and for the native title party to advise on which areas are dangerous and restricted and develop a heritage protection plan, at para [49], (EJ paras [14], [28] and ML paras [6]-[7] and [17]-[18]).
Contentions of the grantee party
The grantee party contends (22 June 2010) that the proposed licence is an act attracting the expedited procedure and in particular that:
They have executed the Regional Standard Heritage Agreement (RSHA) for the proposed licence.
The grant of the proposed licence is not likely to interfere with areas or sites of particular significance to the native title party due to the regulatory regime under the Mining Act1978 (WA) and the operation and protection of the Aboriginal Heritage Act 1972 (WA) (AHA) and the presumption of regularity that the grantee party will act lawfully.
The majority of the work program for the proposed licence is non-ground disturbing. Where the grantee party proposes to conduct activities that could ‘excavate, destroy, damage, conceal or in any way alter an Aboriginal site, it procures that the subject area is surveyed for sites (whether registered or unregistered) by those nominated for the purpose by the Traditional Custodians of the land under a RSHA or if the Traditional Custodians elect not to conduct such survey for whatever reason, then by a suitably qualified and experienced anthropologist and/or archaeologist, in order to avoid any such impact’.
Supplementary contentions of the native title party and grantee party
In response to the grantee party’s contentions of 22 June 2010, the native title party contends (16 July 2010), in particular that:
The operation of the AHA, ‘will be inadequate to protect sites and areas of particular significance within and around the proposed licence from interference.’
The concerns of the native title party can only be met by face to face consultation with the grantee party prior to the conduct of on-ground exploration (EJ para [28] and ML para [17]-[18]). The terms of the RSHA do not require consultation and submits that it is inadequate to address the concerns of the native title party and protect sites of particular significance to them.
It does not seek to argue that the grantee party is likely to act unlawfully in exercising its rights under the proposed licence, rather due to the sensitivity of sites and places of particular significance within and around the proposed licence even the lawful exercise of exploration rights is likely to result in interference. There is likely to be interference, even if it is assumed that the grantee party will:
a)enter into an RSHA;
b)comply with provisions of the RSHA;
c)comply with all conditions imposed on the grant of the licence; and
d)comply with all relevant legislation in exercising its rights under the licence.
The contention of the grantee party that a suitably qualified and experienced anthropologist be engaged in the event that the native title party does not conduct a survey is inadequate to protect the sites and places of particular significance within and around the proposed licence.
Community or social activities (s 237(a))
The native title party has not made specific contentions in relation to s 237(a) of the Act and I find that the relevant interference is unlikely to occur.
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. There are eleven sites recorded on the DIA Register kept under the AHA within the proposed licence area as originally notified but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence 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 fact that a site is on the Register does not necessarily mean it is a site of particular significance to a native title party.
The evidence of Ms James (EJ) identifies the following sites in the proposed area as originally notified:
The Robe River (Jajiwara), is very important to the native title party and is ‘our main tribal area’, at (EJ para [12]);
The waterway, Jimmawurrada Creek – regarded as ‘very significant under our laws’, at (EJ para [15]). Jimmuwurrada ‘is the trail of the big warlu, a powerful spirit water snake. The warlu is on his way down from the Bungaroo to the Robe River at Garlbari – that’s the main pool straight down from Mesa J. Garlbari is a very dangerous place and no shadow can fall on the water’, at (EJ para [16]);
Whole Jimmawurrada Creek is a pathway for a warlu. Some of the water in the Creek comes from the sacred pool, Marli Marli, in the Bungaroo area, at (EJ para [23]); and
Dreamtime story about the ‘devil dog’ that involves the Jimmawurrada Creek, starts at Six Mile Well and runs all the way to where the Jimmawurrada Creek meets the Robe River, at (EJ para [17]).
The evidence of Mr Lockyer (ML) identifies the following sites in the area as originally notified:
Burial sites in the area of the proposed licence, at (ML para [6]);
Balumalu is just past Six Mile Well (Ngarrawaja), at (ML para [7]). Balumalu is a registered site (Site ID 6465) and is very significant because it is a dangerous place. It relates to the ‘devil dog’, at (ML para [8]);
Robe River (Jajiwara) is a sacred place to the native title party, at (ML para [10]);
Jimmuwurrada Creek – the main tributary to the Robe River, at (ML para [11]);
Quarry which is a registered site (Site ID 6976), at (ML para [12]); and
Along the Jimmuwurrada Creek is where the native title party were born and midwives, ngarlu and mimmi, at (ML para [15]).
Another site being a pool called Tuleree on Jimmuwurrada Creek is located some kilometres upstream of the proposed licence area which is said to be no good because there is a snake there. ‘Only men should go near Tuleree because there is a big quarry there. It’s for Jimmari, which is a rock that we use for ceremonies, at (ML para [16]. While I do not consider this site is likely to be interfered with directly its existence on Jimmawurrada Creek and nature is corroborative evidence of the significance of the Jimmawurrada Creek and the general area in the vicinity of it.
In addition, the evidence of Ms James and Mr Lockyer identifies the following concerns of the native title party which support their contentions on the significance of sites.
The story of the ‘devil dog’ – where only initiated men can go within the area of the proposed licence associated with the ‘devil dog’. The law men have some power to settle them, ‘they carry ‘gears’ that can save them, at (EJ para [21]). The dog ‘is very dangerous. He could harm people from the company and we don’t want them to get hurt. If they get hurt, then it’s our problem because we’re not keeping our rule to protect strangers. We need to go and show you where it’s safe. If you disturb the dog, his spirit will come back and we would need a very strong man to get rid of him again’, at (EJ para [21]).
Balumalu near the Six Mile Well and relates to the dreamtime story about the ‘devil dog’. ‘That devil dog is buried there and if he woke up, if he was disturbed, it would be very bad for us. It would be very easy for someone who didn’t know about this place to wake the dog up accidently. The dog is still active and can still wake up and do damage’, at (ML para [8]-[9]).
The following registered sites are, at least in part, located within or very close to the now proposed licence area (i.e. with the area of AML 70/248 excluded). A number of registered sites referred to above no longer fall within the subject area.
Six Mile Well - registered site ID 6465 – also referred to as Balumalu in the evidence is located in the south-eastern portion.
Jimmawarrada Creek 10 – registered site ID 6859 – located near the south-eastern boundary.
Puluntjurr-Marrnu – registered site ID 6390 – encroaching on the north-western portion of the licence area.
Given the nature of the Six Mile Well/Balumalu site and area around it, I am satisfied by the comprehensive evidence relating to it that the site and area is of particular significance to the native title party in accordance with their traditions.
Jimmawurrada Creek 10 registered site is an artefact/scatter site with open access. If it were an isolated site there may be a question of whether it was a site of particular significance to the native title party. However, the site is near Jimmawurrada Creek and part of a number of Jimmawurrada Creek sites on the Register associated with the Creek. It is within a general area which I regard as of special importance to the native title party and itself is of particular significance.
Registered site Puluntjurr-Marrnu is also a site of particular significance to the native title party. Its nature, its status as a closed site and proximity to Jimmawurrada Creek all allow an inference that it is a site of the relevant kind.
Jimmawurrada Creek – registered site ID 6460 is close to the north-western part of the subject area but does not appear to cover any part of it. It is a ceremonial site, a meeting place and camp on the permanent Register and is a closed site. In my view it is also a site of the relevant kind. Because the area of the proposed licence does not encroach on it and the grantee party is aware of it because of its registered status I do not think there is likely to be interference with it. However, its features including its proximity to Jimmawurrada Creek and the proposed licence area provides support for my finding that the general area of the proposed licence is of particular significance to the native title party.
The evidence of the native title party witnesses clearly establishes that Jimmawurrada Creek is a very important place for the native title party. It runs through most of the proposed licence area as originally notified. Although, the revised grant area excludes most of the Creek it still runs very close to the edge of the proposed licence area at the north-west end of it, and runs for a short distance through the area at its south-eastern end. Between these points the Creek runs at various distances from the edge of the tenement area, being some five kilometres at its furtherest point.
In addition to the specific sites which are registered and/or contained in the evidence, there is evidence of dangerous places which should be avoided. There is also evidence of burial sites which I am prepared to infer are sites of particular significance to the native title party, the precise location of which are not identified. The reference to dreamtime stories and fears of harm to the native title party and strangers is apparent in the evidence of the native title party and corroborative of the fact that the general area is of particular significance to the native title party.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA 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 AHA 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 AHA 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 accordance with Government policy the grantee party executed a RSHA and sent it to the native title party before the s 29 notice was given and has since re-affirmed its prepardness to enter into such an agreement.
The Government party’s proposed condition allows the native title party the option to enter into an RSHA with the grantee party within 90 days of the grant of the proposed licences which adds some weight to the regulatory regime.
The grantee party says it will carry out a heritage survey where its exploration work goes beyond minor disturbance and which could excavate, destroy, damage, conceal or in any way alter an Aboriginal site. The grantee party contends that its initial work will involve geophysical surveys, geological mapping, soil sampling, rock chip sampling and broad based reconnaissance drilling, the majority of which will be non-ground disturbing and that this ground disturbing would only be minor. However, the grantee party’s activities will not be limited to this activity and more extensive exploration, if justified by the initial results, could involve the more intrusive activities permitted under the Mining Act such as, drilling and trenching and clearing areas for this to occur. In any event, it is my view the exploration activity identified by the grantee party as minor ground disturbing could still have the capacity to interfere with a site of particular significance. Soil sampling, rock chip sampling and reconnaissance drilling all have this potential and my determination is made on this basis.
The grantee party says that where its activities go beyond minor disturbance it will procure a survey of the subject area. This contention relies on the grantee party having the knowledge and expertise to assess whether the degree of such activity creates more than minor disturbance on the basis of their consideration of the traditions of the native title party. It is, in effect, a self assessment of what is a site and whether it will be interfered with. In the circumstances of this case where there are a number of important sites in an area of significance to the native title party I am of the view that unless there is an agreement with the native title party which clearly defines the circumstances in which the grantee party may conduct activities that go beyond minor disturbance there is a likelihood that relevant sites will be interfered with.
In this matter, I am of the view that the sensitivity of the site and area within and around the registered site ID 6465 (Balumalu) and the ‘devil dog’ spirit, and the importance of the Jimmawurrada Creek as a tributary of the Robe River in accordance with the traditions of the native title party requires ‘face to face’ consultation between the native title party and the grantee party prior to the conduct of any on-ground exploration activity.
My finding is that the general area of the proposed licence is of particular significance to the native title party in accordance with their traditions and that there are sites of particular significance within the area. There are strong stories associated with Jimmawurrada Creek and the devil dog which demonstrate its general importance. Although some of the registered sites originally identified as within the area are not likely to be interfered with because they are now outside it, there remain within the area a number of very important places identified on the Register and in the evidence of Ms James and Mr Lockyer. In some cases the location of these sites is not identified specifically and even in the case of the registered sites they are only identified as within a buffer zone.
In my view this is not a case where compliance with the AHA or the regulatory regime is sufficient to make it unlikely that there will be interference with a site or areas of particular significance to the native title party.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b). Neither did the native title party make contentions in relation to s 237(c).
Determination
The determination of the Tribunal is that the grant of exploration licence E47/2041, to Cazaly Iron Pty Ltd, is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
16 August 2010
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