Mark Lockyer and Others on behalf of the Kurama Marthudunera People/Western Australia/Adelaide Prospecting Pty Ltd
[2002] NNTTA 33
•27 March 2003
NATIONAL NATIVE TITLE TRIBUNAL
Mark Lockyer and Others on behalf of the Kurama Marthudunera People/Western Australia/Adelaide Prospecting Pty Ltd, [2002] NNTTA 33 (27 March 2003)
Application No: WO01/432
IN THE MATTER of the Native Title Act 1993 (Cwlth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Mark Lockyer and Others on behalf of the Kurama Marthudunera People (Native Title Party)
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The State of Western Australia (Government Party)
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Adelaide Prospecting Pty Ltd (Grantee Party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 27 March February 2002
Catchwords: Native Title – future act – proposed grant of exploration licence – expedited procedure objection application – no likelihood of direct interference with community or social activities, interference with sites of particular significance or major disturbance to land - act attracts the expedited procedure.
Legislation:Native Title Act 1993 (Cth) ss 151, 237
Cases:Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002
Counsel for the
native title party: Ms Natasha Case, Pilbara Native Title Service
Representative of the
native title party: Mr Adrian Murphy, Pilbara Native Title Service
Representative of the
Government party: Mr Phil Boyland, Department of Mineral and Petroleum Resources
Solicitor for the
Government party: Crown Solicitor
Representative of the
grantee party: Mr Dennis Hawtin
REASONS FOR DETERMINATION
Background
On 30 May 2001, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the Government party’) advised its intention to do a future act, namely to grant exploration licence 08/1227 (‘the exploration licence’) to Adelaide Prospecting Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 221.87 square kilometres located 64 kilometres south of Pannawonica, in the Shire of Ashburton (centroid - latitude 22o 12 minutes, longitude 116o 15 minutes). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 26 September 2001, Mark Lockyer and Others on behalf of the Kurama Marthudunera People (‘the native title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure. The native title party’s Application for Determination of Native Title (WC96/98) was registered by the Tribunal on 4 October 1996. The exploration licence 08/1227 is situated on this claim area.
The Tribunal accepted the objection application on 12 October 2001.
In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. By the time of a Listing Hearing on 8 January 2002 all parties had complied with Directions (the grantee party relying on the State’s contentions and documents) and all indicated that a determination could be made on the papers. I have decided that I can adequately deal with the matter in that way (s 151 NTA).
The objection application (para 7) asserted that the s 29 notice did not meet the requirements of the Act. This issue was not pursued further by the native title party and no evidence was produced to support their assertion. I am satisfied that the Tribunal has jurisdiction to determine the matter.
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.’
Legal principles
The nature of an exploration licence and activities permitted by it
In Western Australia/Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002 I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[37]). I adopt those findings for the purposes of this inquiry.
The Evidence
The Government party’s evidence establishes that the underlying land tenure of the proposed tenement is a combination of pastoral leases 3114/1267 and 3114/1262, a road and unallocated Crown land. The State advised that there are no Aboriginal communities on or in the vicinity of that land and produced a search of the Aboriginal Sites Register which revealed that there is one site within the area of the tenement application registered under the provisions of the Aboriginal Heritage Act 1972 (WA). The site is the Cane River which is on the interim register, is classified as having closed access, does not have a gender restriction and has an unreliable location classification. The site type is a combination of ceremonial, mythological and engravings.
The native title party lodged affidavits of Jean Lockyer and Neil Finlay (both applicants on the Kurama Marthudunera claim), Pamela McGrath, (Research Project Officer (qualified anthropologist) employed by the Pilbara Native Title Service (‘the PNTS’)) and Cedric Stileman Davies (a qualified geologist employed by the Yamatji Land and Sea Council). None of this evidence was contested and I accept it for the purpose of this determination.
Affidavit of Jean Lockyer
‘I, Jean Lockyer of 663 Lockyer Way, Roebourne, in the State of Western Australia, pensioner, being duly sworn make oath and say as follows:
1.I am a Kurama elder and an applicant on the Kurama Marthudunera native title claim. I am recognised under traditional Kurama law as speaking for and making decisions about the land covered by Adelaide Prospecting’s proposed tenement E08/1227.
2.I have seen a map that shows the location of tenement E08/1227 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. The tenement area is located in the vicinity of Mangalla (Red Hill Station). This country is Kurama country and is part of the Kurama Marthudunera native title claim.
3.On Wednesday 19th December 2001, myself and other Kurama people visited the area of the proposed tenement with Pamela McGrath from the Pilbara Native Title Service. This area is really good country for hunting and collecting bush medicines and bush foods, and it is important for Kurama people because this is a place where we can come any time we like to hunt and camp. We have a really good relationship with the managers at Red Hill Station, and we can come here to hunt or fish or camp on our country whenever we like.
4.It is the responsibility of myself and other Kurama elders to make sure that we protect this country so it will be here for us and our kids to use in the future.
5.There are many different plants that you can find within the proposed tenement that are important to the Kurama people because we use them and the animals use them. There is one tree called kurata (musket tree) that is good food for kangaroos and cattle. There are a lot of puntanngu (cabbage gum trees), and they are very important because they provide malu (shade) for all the animals.
6.There are plenty of medicine plants in the proposed tenement, for example marrara. We collect the leaves, boil them up and wash with it to get rid of the flu. And there is minjarra, a little plant that grows in the river beds and is really good for fixing sore eyes. We boil him up and wash our eyes with it. I collected some when I was visiting here the other day.
7.And there is plenty of bush tucker in that area too. I found pulina, which is a tree that has little black seeds. We can collect them and grind them up, and then cook them into a damper. I found a winyaramu, which is a tree with little red fruits that come out in October. I also found kalun, and yalari (bull rushes), both good bush tucker.
8.While we were travelling through the area of the proposed tenement, I saw many animals that are important to our people. There were plenty of jangunar (emus) and patura (bush turkeys), and lots of kangaroos. We also saw a muput (owl). This little bird is very important to us because we have a traditional story about him.
9.I have a responsibility to pass my knowledge about our country to our young people. This is how we keep our traditions going. We show our children the country, tell them the stories and teach them how to look after country. They must learn how to care for this country and look after the plants and animals that live there so it will always provide for them and their children. I taught my children how to speak Kurama language, and I continue to teach their children as well. I teach our kids as much as I can about our culture so that they won’t forget it. It is very important to take kids out on their country for them to learn about it. It is very difficult for kids to learn it they never go out and see for themselves the things that we tell them about.
10.When I visited the area of the proposed tenement on the 19th December 2001, my daughter Sharon Lockyer and my granddaughter Cassidy Lockyer came with me. Sharon already knows a lot of her country, things like the names of the plants and animals and how to cook them properly, and she speaks Kurama.
11.Cassidy is only six years old and is still a nyulunu (little girl), but I am already teaching her all about her country. While we were out on country I taught her the names of different plants and birds, and I told her stories about special places near Mangalla that are important for Kurama people. I also told her how different animals are related, like the jangunar and the patura. The patura is turtu (sister) to the emu and they have a special relationship. Cassidy already knows a lot and she helped her uncle Neil (Finlay) catch and cook the kuramandu that he got while we were at Urandy Outcamp.
12.Kurama people have names for the different stages of animals’ lives and we use this knowledge to take care of the country and the animals that live there. For example, a baby kangaroo that has no hair and still lives in its mother’s puch is called a millj. When he is a bit bigger and able to stick his head out and look around, he is called nutinu. When he is out of the pouch and following his mother around, he is called a malinungu. When he is still not fully grown but starting to go away from his mother he is called putapura. And when he is ready to leave home and start out on his own he is called warung. It is information like this that is very important to know if the country is to be cared for properly, so I teach my children and my grandchildren these things.
13.There is an old camping ground at Urandy Outcamp, and when we went there I saw a lot of tools left behind by our old people, including a grindstone. This is an important place because our old people camped here before the whitefella’s came, and they were here when it was used by Red Hill station and our people worked for them. It is also an important yila (water place) because a lot of animals come here to drink. Kurama people want to protect what we have in this area because we would like to be able to keep it for our children. If we don’t then they will have nothing.
14.I have been informed that if the proposed tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:
(a)Reverse circulation drilling in areas of hypersaline groundwater.
(b)Diamond (core) drilling.
(c)The excavation of up to 1000 tonnes of material.
15.I have had the affidavit of Cedric Stileman Davies dated 4 December 2001 read to me and I understand what the above activities involve.
16.I have seen the damage that mining activity can have on our country. We’ve been to areas around Pannawonica where mining companies have been drilling and making roads and digging up the ground. There are a lot of drill holes without caps on the, and big holes that have just been left. These are dangerous for both people and animals and they have changed the way that our land looks to us.
17.I study the ground and I know about how the animals use it. I believe that if the mining company comes onto the land in the proposed tenement and starts digging up the ground near water holes then the animals will have to move away, and I feel sorry for them and for us because we need the water and the animals too.
18.My nephew Red Alexander, who is a Kurama elder, lived at Cardoo Outstation for a while. Cardoo is about 10km from the proposed tenement area. He lived there with his wife and family and they took care of this country while they lived there. Before that, my old husband used to go dogging through here, and he and another important Kurama elder, Algie Patterson kept an eye on the place. Algie and his wife were in Mangalla for a long time, and my old husband and I used to go and visit them there. Our people have been in this area for a long time, and now that these two old people have passed away, it the responsibility of myself and other Kurama elders to take care of the country.
19.The Kurama elders are the bosses for this country. The area of the proposed tenement is country that we traditionally share with the Kurama mob from Duck Creek area, the Puutu Kunti Kurama people who have their own native title claim. Urandy Creek is on the boundary between the two Kurama people’s, and we are all responsible for the area. Before the mining company starts digging up the country here, all the Kurama elders who know this country must come together to talk about it. Aboriginal law respects that the right people have to talk about country.’
Affidavit of Neil Finlay
‘I, Neil Finlay of 656 Lockyer Way, Roebourne in the State of Western Australia, pensioner, being duly sworn make oath and say as follows:
1.I am a Kurama elder and an applicant of the Kurama Marthudunera claim. I am recognised under the traditional Kurama laws as speaking for and making decisions about the area of land covered by Adelaide Prospecting’s proposed tenement E08/1227.
2.I have seen a map, which shows the location of tenement E08/1227 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. The tenement area is located in the vicinity of Red Hill Station. I was born at Mangalla (Red Hill Station) and my ancestors lived and worked throughout this area. This country is Kurama country and is part of the Kurama Marthudunera native title claim.
3.On Wednesday 19th December 2001, myself and other Kurama people visited the area of the proposed tenement with Pamela McGrath from the Pilbara Native Title Service. This area is really good country for hunting and collecting bush medicines and bush foods, and it is important for Kurama people because this is a place where we can come any time we like to hunt and camp. It is the responsibility of me and other Kurrama elders to make sure that we protect this country so it will be around for us and our kids to used in the future.
4.While we in the tenement area we saw a big mob of jangunar (emus) and kangaroos everywhere, and plenty of bush turkey. I went hunting and I caught a kuramandu (goanna) and a couple of bush turkeys. I caught the goanna traditional way, the way that my old people taught me. When I saw the kuramandu, I spoke to him and asked him to lie down, and then I chased him through the spinifex, grabbed his tail and his head, and then knocked him on the head with a stick. I then prepared him and cooked him traditional way, in a hole in the ground.
5.I am a kunmerli man, which means that I am a hunting man who has been taught how to hunt properly by my old people. When we catch a kuramandu or a jangunar or any other animal, we don’t take him home and cook him on a stove. That’s not right. He should be cooked in the ground properly as our old people taught us to. And when we hunt kangaroo, we got to make sure we get a good fat one. It doesn’t feel right to give people skinny kangaroo. They’ll be asking, “What kind of knumerli man are you, giving me a skinny kangaroo?”
6.When I was a young man learning how to hunt, my old people made me swallow a mlljl (kangaroo fetus) to make me a good kunmerli man. They reckoned that this would give me a hunger for hunting and make me work hard to hunt for my family. I didn’t want to swallow that thing, but if I hadn’t those old people would have beaten me with a big stick. I reckon it worked, that thing, because I’m still a good hunter today and I go out to get a feed for my family whenever I can.
7.If the mining company comes in here, making roads and digging up the ground, then they are going to damage this area for hunting, especially if they do work near any of the water holes. There are a lot of hunting things here for us, and all of them need the water holes to drink from and the trees to give shade and food. If the mining company does drilling work in the area they might take these things away from the animals and it won’t be good to hunt here anymore.
8.There is an old camping ground in the proposed tenement, at Urandy Outcamp (AG66 50K 0425775E 7536243N). I’ve seen a lot of tools left behind by our old people here. This is a special place because our old people were here for a long time, before the white men came to this area, and they probably left some old people here. This place needs to be protected, and if the mining company comes in here to do work, then they might damage this place and dig up any old people who are buried here. And that will give me and my people a lot of hurt.
9.The area of the proposed tenement has many important plants that Kurama people use to make traditional weapons and medicines. There are plenty of murruwa (snakewood trees), which we use to make boomerangs and yiwa (snakewood ashes mixed with tobacco which is chewed to produce a mild narcotic effect). There are plenty to jaruwai (jam trees), which we use to make shields, and lots of marlyia (bush honey), which we collect for food. Marlyia is also a good medicine that makes the heart strong.
10.There are some dangerous places in the hills near the proposed tenement area. People are not allowed to go to these places because it could make a lot of trouble. If an Aboriginal person goes to these places then they will get a feeling that they don’t belong there and they will stay away. I am worried that if people from the mining company come into this area, they might go and sticky beak in places that they shouldn’t be, and that it will cause trouble for them and their families. If we tell someone not to go somewhere, then they should listen to us. If we don’t tell people where they can and can’t go, then someone might get hurt and Kurrama people will get the blame. They will come to us and say “You should have told us about that country. Now look, that fellow has been hurt because of you”.
11.I have been informed that if the proposed tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:
(a)Reverse circulation drilling in areas of hypersaline groundwater.
(b)Diamond (core) drilling.
(c)The excavation of up to 1000 tonnes of material.
12.I have read the affidavit of Cedric Stileman Davies dated 4 December 2001 and understand what the above activities involve.
13.I believe that if the mining company starts doing all these things in the proposed tenement area then it will be a big disturbance to the land. The ground and vegetation would be disturbed by them making tracks through the tenement area and the drilling could disturb the sites around the tenement area.
14.I have seen the damage that mining activity can have on our country. We’ve been to areas around Pannawonica where mining companies have been drilling and making roads and digging up the ground. There are a lot of drill holes without caps on them, and big holes that have just been left. These are dangerous for both people and animals and they have changed the way that our land looks to us.
15.When I see how all this mining activity changes the landscape, it makes me hurt and it turns me into a liar when I talk to my children. I tell my children about places in our country like hills or water, and when I take them out to show them these places, they are not there anymore. These places and their stories are gone forever, and my children will never see them for themselves and will say that I have lied to them.
16.The Kurama elders are the bosses for this country. The area of the proposed tenement is country that we traditionally share with the Kurama mob from Duck Creek area, the Puutu Kunti Kurama people who have their own native title claim. Before anything happens in the area of the proposed tenement, all the Kurama elders who know this country must come together to talk about it.
17.Kurama people are not gone. We are still here and we are still following the ways of our old people. We are responsible for taking care of Kurama country for our children and our grandchildren. The mining company who wants to come and do work in the area of the proposed tenement should come and talk to us first, so we can make sure that they don’t do anything stupid that might ruin that country for Kurama people. I believe that if they don’t come and talk to us first, then they will make it more difficult for us to protect our country properly and we will not be able to continue to enjoy that place and use it to practice our traditional way of living.’
Affidavit of Pamela McGrath: Ms McGrath is a qualified anthropologist employed by the PNTS who was under the supervision of Nicholas Green. In other expedited procedure objection inquiries including Walley (WO01/179 and WO01/180) Mr Green has provided an affidavit containing some of the same evidence as that of Ms McGrath in this matter. On 19 December 2001, Ms McGrath accompanied four members of the claimant group on a visit to the tenement area. They spent some time at Urandy Outcamp. She says there are numerous Aboriginal artefacts on the tenement area in such density as to indicate at least two archaeological sites in the area and that this would need to be confirmed by an Aboriginal heritage survey as none is recorded on the Register of Sites kept by the Department of Indigenous Affairs. A survey would also be necessary to confirm the existence of what appeared to be a burial site at Urandy Outcamp. Ms McGrath was provided with information about Urandy Outcamp by the claimants who accompanied her and which is contained in the affidavits of Ms Lockyer and Mr Finlay. She considers Urandy Creek Outstation to be of both ethnographic and archaeological significance. During the visit on 19 December 2001 she observed the Kurama claimants hunting, preparing and cooking animals using traditional methods, identifying useful plants and animals and passing information onto younger members of the group. She said this involved the active exercise of native title rights and expressed the opinion that these could be adversely affected by the grant of the tenement without due consideration to them.
Ms McGrath also said:
it is the usual practice of the PNTS to lodge objections but withdraw them once a grantee party has agreed to an Aboriginal heritage survey of the tenement area;
objectors are concerned that grievous damage to their traditional country will be caused unless an Aboriginal heritage survey is carried out;
she had been told that the grantee party is not willing to be involved in an Aboriginal heritage survey;
the Kurama people are responsible for care of country and failure to conduct an Aboriginal heritage survey will undermine this obligation and prevent them from making considered decisions on granting permission and imposing restrictions on entry according to their traditional law and custom;
it is unlikely that the Register of Aboriginal sites is an accurate record of all sites in the area;
her search of the Register confirms the existence of the Cane River site referred to above and that its closed status means that it is of ‘particular spiritual or anthological significance to Aboriginal people’, thus requiring special protection; and
in her opinion an Aboriginal heritage survey is necessary to ensure that sites within the tenement area are protected.
Affidavit of Cedric Davies: The affidavit of Cedric Davies is identical to that lodged in Walley (WO01/179 and WO01/180).
Community or social activities (s 237(a))
For the objection to be upheld the evidence must show that there is a likelihood in the sense of a real risk that there will be substantial impact on the community or social activities of the native title party. Evidence clearly establishes that the tenement area is “good country for hunting and collecting bush medicines and bush foods”. In addition, the native title claimants are free to access the area at any time due to the good relationship they have with the Red Hill pastoral lessee. The proposed tenement area covers part of the Red Hill Pastoral Lease, which is an area with which the Kumara claimants have an historical connection evidenced by their relatives having resided and worked throughout the area in the past. There is no doubt that during the visit on 19 December 2002, the claimants engaged in traditional activities consistent with their native title rights. I accept for the purpose of this determination that it is their country and that they have responsibility for it in accordance with their traditional law and custom. However, the Tribunals task is an evaluative one based on the evidence before it. Whether there is the requisite direct interference is a matter of degree, which means that there needs to be evidence of a frequency of community or social activities such that the interference caused by exploration will be substantial and not trivial or occasional. The evidence does not show that the Kurama Marthudunera claimants, including Jean Lockyer and Neil Finlay, visit the area of the proposed tenement frequently. Indeed there is little indication of how often the claim group go to the area. The affidavits of Jean Lockyer, Neil Finlay and Pamela McGrath state that responsibility for the proposed tenement area is shared with the Puutu Kunti Kurama native title claimants. There is no evidence of what this means in practice or how it impacts on the activities of the native title party in the area. Whilst Jean Lockyer and Neil Finlay are both authorised to speak for the area in question (para 1 of the respective affidavits) they only make reference to themselves and their families. I accept that their ancestors have lived in and around the tenement area in the past but there are no current references in the affidavits to other members in the Kurama Marthudunera claimant group or their activities in the area. Jean Lockyer and Neil Finlay have special responsibilities for the area around and including the tenement, including the old Urandy Outcamp but the evidence of actual community or social activities is limited. The evidence does not say that the activities which the claimants engaged in on 19 December 2001 happens on a regular basis. There is no reference for instance to camping on the area on other occasions which might be expected if the visits were frequent. There is no evidence of an Aboriginal community nearby whose members frequent the area. Both Ms Lockyer and Mr Finlay live in Roebourne which is some 300 kilometres to the north by sealed road.
All this suggests that there may be some community or social activities which take place in the general area of the tenement from time to time and there may potentially be some interference with them. The evidence concentrates on the activities of Jean Lockyer and Neil Finlay and their families but does not support resort to the area of such regularity or intensity by the claim group members as to result in exploration activity substantially interfering with them. In considering the likelihood of interference I have also taken account of the fact that the area of the exploration licence is large (over 200 square kilometres) and that if ground-disturbing activity such as drilling occurs it is unlikely to be over the whole of the tenement at the same time. I accept that drilling normally occurs in limited areas targeted for the purpose.
I have considered whether there is sufficient evidence of spiritual or emotional concerns arising from obligations under traditional law to look after country which would give rise to community or social activities that might be interfered with. I have explained the circumstances in which this might apply in Walley (WO01/179 and WO01/180). While there is ample evidence of the claimants responsibility to look after country, this on its own does not mean that exploration will necessarily cause distress or concern of such or kind or intensity that community or social activities will be directly interfered with. The evidence does not support such a conclusion in this case.
Sites of particular significance (s 237(b))
On the evidence, I accept that Urandy Outcamp is a site likely to be of particular significance to the native title party in accordance with its traditions. They have a historical connection to the area. Jean Lockyer asserts that Urandy is “an important place” whilst Neil Lockyer refers to it as a “special place”. There are also artefact sites and at least one possible burial site in the area which may qualify as sites of particular significance. Apart from Urandy Outcamp, which is not registered under the Aboriginal Heritage Act, Pamela McGrath is the only witness to make mention of the Cane River site, which is registered under that Act. The lack of mention of the Cane River site by either Jean Lockyer or Neil Finlay could suggest it is not a site of particular significance to them although Pamela McGrath asserts that in her experience, “a site will be of closed status if it is of particular spiritual or mythological importance to Aboriginal people”. It is well established by Tribunal determinations that a site on the Register is not necessarily a site of particular significance to a native title party claimant group over the area. Firstly, there are various categories of sites some of which would not be considered special (they may be archaeological, middens or scatters) without some evidence to that effect from members of the claimant group. Secondly, even if as in this case it is possible to infer that a site is special because of its nature (ceremonial or mythological and closed) it must be of special significance to the claimants. Where there is such a site it may not be difficult (depending on the evidence) to infer that it is of particular significance to the claimants whose claim is registered over it. The difficulty in this case is that neither Ms Lockyer nor Mr Finlay refer to it and Ms McGrath does not appear to have discussed it with them. However, she does say that its closed status means that it is of particular importance to Aboriginal people (para 17 of her affidavit) and that information relating to it could not be seen without permission of the informants who she says were the Kurama people (para 16 of her affidavit). Despite the site not being referred to by the claimants the evidence is sufficient on balance to find that Cane River is a site of particular significance to the native title party in accordance with their traditions. In addition to these sites on the tenement there may also be sites of particular significance nearby (‘dangerous places in the hills’ – para 10, affidavit of Neil Finlay). I also accept that the Register of sites is not an accurate record of all sites in the area.
I have found that there are two sites of particular significance on the area of the tenement (which is quite large) and that there may be others on it as well. There is also the possibility of some sites nearby. While the grantee party has not signed a heritage agreement this on its own cannot be used to reach a conclusion that it will not obey the law. It is on notice of its obligations under the Aboriginal Heritage Act not to interfere with sites and is now aware through these proceedings of a number of sites on the tenement area. In my view the number and nature of the sites found to exist is not such as to render the Aboriginal Heritage Act and associated procedures ineffective thus making interference with them likely. On these facts my conclusion is that the presumption of regularity and protective measures in the Aboriginal Heritage Act and associated administrative procedures mean that there is not likely to be interference with sites of particular significance. (Adopting the findings in Walley (WO01/179 and WO01/180) at [50]-[58] in relation to that Act.)
Major disturbance (s 237(c))
The principal evidence under this heading is the affidavit of Cedric Davies, supported by assertions from Jean Lockyer and Neil Finlay that the ground disturbing activities he describes will involve major disturbance to the land. The reasons explained in Walley (WO01/179 and WO01/180) for finding that the likelihood of major disturbance to land has not been established are equally applicable in this case.
Determination
The determination of the Tribunal is that the grant of exploration licence 08/1227 to Adelaide Prospecting Pty Ltd is an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
27 March 2002
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