Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni
[2019] NNTTA 18
•2 April 2019
NATIONAL NATIVE TITLE TRIBUNAL
Marputu Aboriginal Corporation RNTBC (INC 8085) v Peter Romeo Gianni
[2019] NNTTA 18 (2 April 2019)
| Application No: | WO2018/0713 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Marputu Aboriginal Corporation RNTBC (ICN 8085) (WCD2017/011)
(native title party)
- and -
Peter Romeo Gianni
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE
EXPEDITED PROCEDURE
| Tribunal: | The Hon John Dowsett AM, QC, President |
| Place: | Brisbane |
| Date: | 2 April 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to |
| interfere directly with the carrying on of community or social | |
| activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is not | |
| an act attracting the expedited procedure | |
| Legislation: | Aboriginal Heritage Act 1972 (WA) ss 5, 19, 26 |
| Mining Act 1978 (WA) ss 63AA, 66, 67 | |
| Native Title Act 1993 (Cth) ss 29(1), 29(4), 29(7), 31, 32, 32(4), 109(3), 237 | |
| Rights in Water and Irrigation Act 1914 (WA) | |
| Cases: | Cheedy on behalf of the Yindjibarndi People v State of Western |
| Australia [2010] FCA 690 | |
| Cheinmora v Striker Resources NL; Dann v Western Australia | |
| [1996] FCA 1147; (1996) 142 ALR 21 | |
| FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation | |
| RNTBC [2014] FCA 1335 | |
| Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 | |
| Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 | |
| Representative of the | Ms Felicity Noonan, Central Desert Native Title Services Ltd |
| native title party: | |
| Representative of the | Mr Peter Romeo Gianni |
| grantee party: | |
| Representative of the | Mr Matthew Smith and Ms Bethany Conway, Department of Mines, |
| Government party: | Industry Regulation and Safety |
| Ms Emma Salsano, State Solicitor’s Office |
REASONS FOR DETERMINATION
INTRODUCTION
Marputu Aboriginal Corporation (“Marputu”) holds native title rights and interests in
certain land and waters (the “determination area”) on behalf of the Gingirana people
(the “traditional owners”). The determination area lies virtually due east of
Carnarvon, south of Newman and north of Wiluna. On 25 May 2018 the Department
of Mines, Industry Regulation and Safety of the Government of Western Australia (the
“State”) gave notice (the “notice”) pursuant to s 29(1) of the Native Title Act 1993
(Cth) (the “Native Title Act”) of its intention to grant exploration licence E52/3621
(the “proposed tenement”) to Peter Romeo Gianni (the “proposed grantee”). The
proposed tenement falls within the boundaries of the determination area. The effective
notification date for the purposes of s 29(4) was 30 May 2018. The State included in
the notice a statement pursuant to s 29(7). Hence, subject to any objection, the
expedited procedure (described in s 32 of the Native Title Act) applies. On 27
September 2018 Marputu lodged an objection (the “objection”) in the Tribunal.
Pursuant to s 32(4) the Tribunal must now consider the objection.
THE DETERMINATION AREA
[2] Of the determination area the traditional owners are entitled to exclusive possession of
3,940.578 square kilometres, and to non-exclusive possession of 7,869.182 square
kilometres. Of the proposed tenement, 2.063 square kilometres are within the
exclusive possession area, whilst 10.386 square kilometres are within the
non-exclusive possession area. In other words, 16.57% of the proposed tenement is
within the exclusive possession area, and 83.43% is within the non-exclusive
possession area.
[3] At paras 11 and 12 of the State’s submissions, it asserts that:
11. The Tengraph Quick Appraisal Form indicates that:
a.
the Maryinia pastoral lease (N050486) overlaps the Proposed Tenement by 82.81 %;
b. the Proposed Tenement is 16.57% unallocated Crown land; c.
the Proposed Tenement covers 0.21 % of C Class Reserve 12297 (Rabbit Proof Fence No 1);
d.
the Proposed Tenement encroaches on miscellaneous licence L52/162 by 1.16%; and
e.
the Proposed Tenement encroaches on miscellaneous licence L69/28 by 5.33%.
12. The area of the Proposed Tenement has previously been the subject of:
a. eight granted exploration licences. Of these, two overlapped the Proposed Tenement by between 75-98%, and six wholly overlapped the Proposed Tenement; and b. one temporary reserve (TR70/1643) which wholly overlapped the Proposed Tenement.
[4] The State further asserts that:
there are no Aboriginal communities within the proposed tenement; there are no sites within the proposed tenement which are registered under the Aboriginal Heritage Act 1972 (WA) (the “AH Act”); and
there are no heritage places recorded on the “Aboriginal Heritage Enquiry System”. [5] None of these factual matters is in dispute.
THE PROPOSED GRANTEE
[6] The proposed grantee has advised the Tribunal that for present purposes, he adopts the
submissions made on behalf of the State.
STATE LEGISLATION
[7] Sections 63AA and 66 of the Mining Act 1978 (WA) (the “Mining Act”) relevantly
provide:
63AA
(1) On the granting of an exploration licence, or at any subsequent time, the Minister
may impose on the holder of the licence reasonable conditions for the purpose of
preventing or reducing, or making good, injury to the land in respect of which the
licence is sought or was granted, or injury to anything on or below the natural surface
of that land or consequential damage to any other land.(2) A condition imposed under this section may be cancelled or varied by the Minister at any time.
(3) A condition imposed in relation to a licence under this section -
(a)
may, either in full or with sufficient particularity as to identify the recommendation or other source from which it derives, be endorsed on the licence, for which purpose the holder of the licence shall produce the licence on demand; and
(b)
whether or not so endorsed, on notice of the imposition of the condition being given in writing to the holder of the licence shall for all purposes have effect as a condition to which the licence is subject.
66
An exploration licence, while it remains in force, authorises the holder thereof, subject
to this Act, and in accordance with any conditions to which the licence may besubject -
(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land; (b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land; (c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing; (d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.
[8] Pursuant to s 67 the holder of an exploration licence has priority with respect to the
grant of mining leases or general purpose leases over any part of the land which is the
subject of the licence, subject to various qualifications and conditions. The State has
indicated that the proposed tenement will be granted subject to the conditions set out
in annexure 5 to the State’s outline of submissions. That annexure is attached to these
reasons. The State has also indicated that any grant will be subject to the following
condition (the “special condition”):
In respect of the area covered by the licence the licensee, if so requested in writing by the Marputu Aboriginal Corporation, the native title prescribed body corporate holding the determined native title of Gingirana, recognised in Federal Court Application No. WAD6002/2003, such request being sent by pre-paid post to reach the licensee's address not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Marputu Aboriginal Corporation the Regional Standard Heritage Agreement ("RSHA '') endorsed by peak industry groups (e.g. the South West/Pilbara/Yamatji/Goldfields Land and Sea Council RSHA) and offered by the Native Title Party or their representatives.
THE OBJECTION
[9] By including the s 29(7) statement in the notice, the State effectively asserted that,
pursuant to s 237, the grant of the proposed tenement:
(a) … 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) … 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) … 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.
[10] Initially, Marputu disputed each of those assertions. However it now only disputes the
State’s assertion concerning s 237(b).
Marputu’s grounds of objection are as follows:
(i) The Native Title Party has not been provided sufficient information from the Government Party to enable identification of areas or sites of particular significance that are likely to be interfered with by the proposed act, pursuant to section 237(b) of the NTA. Specifically, the Government Party has not identified the access routes to be used by the Grantee Party relative to the proposed Licence.
(ii) Preliminary research nevertheless shows that [jukurrpa] (Dreaming tracks) pass through areas in the vicinity of the licence Area. Sites and areas associated with such [jukurrpa] tracks are of particular significance to the Native Title Holders.
(iii) The proposed act is likely to impact and interfere with sites or areas of particular significance as follows:
(A) the Grantee Party may inadvertently interfere with sites or areas of
particular significance by not knowing of their existence;(B) permitted land disturbing activities, including the use of mechanised
equipment for the purpose of drilling for and extracting ore, may result
in the destruction of sites and areas of particular significance, with
consequent damage to the Native Title Holders' spiritual understanding
and comprehensions; and(C) the relevant Minister may permit the interference with sites or areas of
particular significance if it is in the public interest; and(iv) The Native Title Holders are part of the larger social entity known as the Western Desert Cultural Bloc. They have local responsibility for sites and areas of the [jukurrpa] that have social and cultural relevance beyond the Determination Area. Any damage or disturbance to sites or areas of the [jukurrpa] would have repercussions for both the Native Title Holders and the integrity of the wider Aboriginal society of which they form part.
MARPUTU’S EVIDENCE
Marputu’s case rests primarily upon an affidavit by Mr Slim Williams. Mr Williams
is a traditional owner of the determination area and a wati, or lawman, for an area
which includes the proposed tenement. He is also a director of Marputu. He claims to
have cultural responsibility for the area of the proposed tenement and, I infer,
surrounding areas. The State refers to the fact that his affidavit was initially supplied
in an unsworn form. However I understand that such irregularity has been remedied.
I accept his evidence concerning those matters.
[13] Mr Williams was born in Jigalong and went to school there, and in Karalundi. He then
returned to Parnngurr and has lived there ever since. His mother’s name is Noreena
Kadibil. His father is Jimmy Williams, called “Man Behind the Gun”. His father’s
country is in the Lake Disappointment area. His grandfather on his mother’s side was
a Putijarra man called Peter Ngadjurung. His ngurra was around Katjarra or the
Carnarvon Ranges. His grandmother on his mother’s side was Daisy Kadibil who was
a first cousin to Yungara (or Billy Atkins). She was a Putijarra lady and one of the
girls “in the Rabbit Proof Fence story”. His grandmother helped rear him and was
always telling him stories about Putijarra country. He speaks Martu wangka, a mix of
all Martu languages. His main Martu language is Kartujarra, but he also understands
Putijarra, the main language for Gingirana country.
Mr Williams says that the jukurrpa is “the story – the law – about Gingirana country”.
By the term “Gingirana country” he means an area of which the determination area is
part. The jukurrpa has been passed down from the old people. He learnt it when he
“went through the law”. The jukurrpa “started in the beginning – in the dreamtime.
Jukurrpa shapes the country and makes the special places that [Europeans] call
‘sites’”. The jukurrpa is passed on from generation to generation and is still alive
today. Men and women have separate jukurrpa. Normally, one group does not
discuss the other’s business. However both men and women participate in law
business. Some parts are shared. This law is still followed and practised.
[15] Mr Williams is one of the people who holds the jukurrpa for Gingirana country,
including the area of the proposed tenement. He has to look after the jukurrpa and
make sure that nobody “messes it up”. This responsibility is called Kanyikurra
ngurrra. His duty is to hold jukurrpa for the Gingirana country and keep it strong. It is
his country, and he must look after it. It is “the same all through the desert”. I take
that statement to mean that similar systems of responsibility are to be found in the
traditional laws and customs of indigenous communities throughout the desert. The
Gingirana people are “proper desert people”. Knowing the jukurrpa is necessary in
order to have knowledge of the dreamings and special places, all of which have
meaning for Gingirana people. Jukurrpa is still alive today. Hurting one part of the
jukurrpa may hurt the other parts. They are all related. Without jukurrpa, the
Gingirana people would lose connection to their country and their identity. They
might get sick. If the jukurrpa does not remain strong, the country will not remain
strong, and the people will not remain strong. If it is interfered with, it can be lost.
Then people may get sick.
[16] Associated with the area of the proposed tenement is a, “very important jukurrpa”
known as the “nyii nyii”. The nyii nyii is a small bird, a finch, which flies everywhere
and lets people know where the water is. It is to be found at every water place. It is
really important to indigenous people because it shows them where the water places
are. This information is very important to Putijarra people. The nyii nyii travels from
the west and stops on the southern border of the proposed tenement area where there is
a soak. Mr Williams refers to that area as being located at “Beyondie”, the name of a
nearby station. The nyii nyii rests there and then continues down to Lorna Glen.
[17] The soak is important because it is a main place where the old people used to live.
They used the soak as a water source. It is like a “homeland”. The traditional owners
do not want others to go there and disturb it. On a few times each year, the traditional
owners travel past the soak inside the proposed tenement area, when going to
Kumarina or Wiluna for meetings, funerals or when going camping. They go into the
soak to check that it is “ok” and to collect water. They then travel towards the rabbit
proof fence, and keep going to the road up to Katjarra in Putijarra country, but in the
Birriliburu determination area. When their children are with them, they tell them
where the main waterhole is and where the old people lived.
[18] Mr Williams says that if the proposed grantee were to go into the soak area without the
traditional owners’ permission and do a small amount of work, such as driving around
or digging up soil, it would make the traditional owners angry as if it were trespassing.
It is necessary that the right people be asked about country, in this case the Putijarra
people such as Mr Williams. If the proposed grantee were to do work in the wrong
place, it would damage the nyii nyii jukurrpa, and the traditional owners would have
nothing to show future generations concerning their stories. It would damage their
culture as it would make it hard for them to tell their stories. Mr Williams fears that,
should the jukurrpa be damaged, he might be punished by other wati for allowing such
damage. He considers that the only way that the soak and the nyii nyii jukurrpa can be
protected is for the wati to tell people where they can and cannot go. He says that the
proposed grantee must come to a meeting and make an agreement with “us”.
[19] In December 2016 Mr Williams and his son “did some heritage work” in the area of
the proposed tenement where another company, with which Marputu had an
agreement, wanted to build a road. The road goes all the way from the highway,
through the proposed tenement and Beyondie station, and then into the empty country,
“just above the eastern end of Ten Mile Lake”. He says that they did the work because
the place is really important. They wanted to make sure that the road was not put in
the wrong place. The maps show only one road within the boundaries of the proposed
tenement. It runs north-south. Another road, Beyondie Road, runs east-west, passing
to the south of the proposed tenement and near to its south-western corner. However
there has been no challenge to Mr Williams’ evidence in this regard. I accept such
evidence.
MARPUTU’S SUBMISSIONS
[20] Marputu submits that the relevant native title determination:
… recognises the Gingirana native title holders’ right to possession, occupation, use
and enjoyment over parts of the area of the [d]etermination ([d]etermination [a]rea],
including part of the [proposed tenement], to the exclusion of all others. In the balance
of the [d]etermination [a]rea, the following non-exclusive native title rights andinterests are recognised:
(a) the right to access, remain in and use that part;
(b) the right to access, take and use the resources of that part for any purpose;
(c) the right to engage in spiritual and cultural activities in that part;
(d) the right to maintain and protect places of significance on that part; and
(e)
the right to receive a portion of any traditional resources (not including minerals or petroleum) taken from land or waters by Aboriginal people who are also governed by Western Desert traditional laws and customs.
[21] Marputu further submits that:
the proposed tenement would be granted for a period of five years, with possible extensions; and
by reference to the rights and conditions prescribed by the legislation, “ … a considerable amount of activity that can reasonably be considered as being likely to cause disturbance to an area of land subject to an exploration licence is permitted under the Mining Act.” [22] I accept those submissions.
[23] Marputu cites the remarks by French J (as his Honour then was) in Smith v Western
Australia (2001) 108 FCR 442 at 450 as follows:
The [Native Title Act] is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed.
[24] His Honour was, of course, concerned with legislative purpose as a consideration in
construing the terms of the legislation. Marputu submits that the phrase “not likely” in
s 237(b) requires a predictive assessment as to the likelihood that the grant of the
proposed tenement would have the impact set out in s 237(b), and that the word
“likely” is to be interpreted as meaning a “real, or not remote chance or possibility”. It
need not be shown that the risk of interference is more probable than not. I accept
those submissions. Marputu accepts that the Tribunal must consider the effect of the
existing statutory protective regime (under the AH Act) upon the likelihood of any
proscribed interference.
[25] Section 237(b) protects areas or sites of particular significance in accordance with the
traditions of the traditional owners. Marputu submits that sites or areas of particular
significance, not located within the proposed tenement, may be adversely affected by
the grant of the proposed tenement for the purposes of s 237(b). Secondly, it submits
that the register of sites maintained under the AH Act is not a record of all aboriginal sites in Western Australia. Further, the statutory criteria for protection under the AH
Act do not mirror the concept of sites of particular significance prescribed in s 237(b).
None of these submissions is disputed.
[26] Marputu submits that the land and waters traversed by the nyii nyii jukurrpa comprise
an area and/or site of particular significance to the native title holders, as do the soak
and the area around it. The nature of that significance is such that interference of the
kind contemplated by s 237(b) is likely because:
sites created by the jukurrpa are, by their nature, not readily identifiable by persons other than those, “instilled in the mysteries of the
[jukurrpa]”;
the native title holders, particularly the wati, are custodians of such areas or sites pursuant to traditional laws and customs, with obligations to other members of the Western Desert Cultural Bloc to protect and maintain the parts of the nyii nyii jukurrpa story which go through, and stop within the proposed tenement; interference with one part of the nyii nyii jukurrpa, including the soak, may cause interference to other areas and/or sites along the jukurrpa; damage may lead to physical injury or illness; and interference will cause emotional distress to native title holders. [27] Marputu submits that the AH Act offers only minimal protection from impacts such as
those contemplated in s 237(b) because:
low impact or non-ground disturbing activities may not be prohibited by the AH Act but may constitute interference for the purpose of
s 237(b);
“meaningful consultation and negotiation” is required in order to ensure that sites and areas of particular significance are not likely to suffer interference; and the nature of the sites and areas is such that negotiation, not merely consultation, is necessary concerning access and impact.
THE STATE’S SUBMISSIONS
[28] The State submits that Marputu must produce evidence to establish that there are sites
of particular significance to the traditional owners within, or in the vicinity of the
proposed tenement area, and that such establishment is a “condition precedent” to any
enquiry under s 237(b). That statement is too broad. The Tribunal is not bound by the
rules of evidence. See s 109(3) of the Native Title Act. Hence it may, at least in
principle, act upon the contents of expert anthropological or historical works which
may not technically be in evidence, subject to the rules of procedural fairness.
Further, it is clear that no party to proceedings pursuant to s 32 bears an evidentiary
onus. See Ward v Western Australia (1996) 69 FCR 208 at 217-218. However one
would normally expect the native title party to express its concerns and the reasons for
them. In the absence of such “evidence”, it may be easier for the Tribunal to conclude
that the requirements of (at least) ss 237(a) and 237(b) are satisfied. As McKerracher
J said in Cheedy on behalf of the Yindjibarndi People v State of Western Australia
[2010] FCA 690 at [145], it is entirely appropriate that the Tribunal should take into
account existing protective measures.
[29] I generally accept the State’s submissions that:
a native title party’s “evidence” may be too broad or imprecise to be of assistance;
such “evidence” should explain a site’s significance in the context of the relevant traditional laws and customs; a general statement as to a site’s importance may not be sufficient to demonstrate its relative importance as compared to other sites; an area or site of particular significance must “stand out” in some way from the general background of other sites and the country as a whole, a statement that a site or area is “part of our heritage” being insufficient; and the Tribunal must perform a “predictive assessment” of whether particular impact is “not likely”, such consultation being not limited to the legal rights to be conferred pursuant to any grant of the proposed tenement, but also taking into account other factors such as evidence of intention and existing regulatory regimes. [30] I qualify my general acceptance of these submissions by observing that many of them
involve questions of degree or judgment.
[31] The State submits that:
Mr Williams’ evidence is insufficient to establish that the land and waters traversed by the nyii nyii jukurrpa are sites of particular
significance;
the alleged risk of interference with a site should not become a basis for giving the native title party an effective veto over access; the protection offered by the AH Act renders it unlikely that there will be any direct interference with any sites of particular significance; the special condition would enable Marputu to require execution of a regional standard heritage agreement (an “RSHA”); the proposed grantee has demonstrated its willingness to work with the native title party to avoid any adverse impacts; and Marputu does not suggest that prior or existing tenures over the proposed tenement area have caused any interference with areas or sites of particular significance.
MARPUTU’S REPLY
[32] Marputu notes that the proposed grantee has not provided any material relevant to the
proceedings and has simply adopted the State’s submissions. Marputu submits that:
I should infer that the proposed grantee will exercise the full range of rights available pursuant to the proposed tenement;
in those circumstances, I have no option other than to determine that interference of the kind contemplated by s 237(b) is likely; the expedited procedure does not apply; and if the State asserts that there is no reason to doubt that the proposed grantee will comply with the law, it should have demonstrated that he had not previously failed so to do. [33] I accept only the first of these submissions. The others are little more than rhetoric.
[34] As to sites or areas of particular significance, Marputu rejects the State’s submission
that such sites must be precisely located, submitting that it is sufficient to demonstrate
that there is such a site located within, or adjacent to the proposed tenement, and that
the site or area is likely to be interfered with as a result of the proposed grant.
Marputu also submits that it is sufficient that the site be of special, or more than
ordinary significance to native title holders. It further submits that, it need not show
that the country traversed by the nyii nyii jukurrpa is of greater significance than other
country.
[35] As to the likelihood of interference, Marputu rejects the suggestion that it is, in effect,
asserting the right to veto entry to the proposed tenement. It submits only that the
nature of the site is such that meaningful consultation and negotiation, resulting in an
agreement which provides for an appropriate survey, is necessary in order to avoid
unacceptable interference.
[36] Marputu maintains its assertion that the AH Act will provide insufficient protection,
and that it is not necessary that it demonstrate particular circumstances in order to
justify that assertion. Marputu submits that the current RSHA is outdated and does not
afford the necessary protection. It further submits that the “form and content” of the
document is such that it could not execute it. Marputu does not explain that assertion.
It submits that the proposed grantee’s offer to enter into such an agreement merely
reflects the State’s policy that it must offer to do so.
[37] Concerning previous and ongoing tenures, Marputu submits that its case is not that the
mere presence of the proposed grantee on the tenement may lead to damage to the
sites, but that the work which may be performed there could have that effect. It further
submits that the question is whether the proposed grant is likely to lead to adverse
impact, not whether other former or current tenures have done so.
MATTERS RAISED BY THE TRIBUNAL
[38] The Tribunal drew to the attention of the parties, three documents. The first is a map
showing, in some detail, the location of the proposed tenement. The second is an
“overlap analysis” which shows that there have been previous objections to proposed
grants over the proposed tenement, which objections have been upheld. The third
document is a map depicting various historical tenements.
[39] Document 1 shows that the Beyondie homestead is about 2.5 km south of the southern
boundary of the proposed tenement area. The map suggests that there are water
courses between Beyondie and that boundary. The proposed tenement is rectangular,
the longer (northern and southern) boundaries being about 7.5 km in length. The side
(eastern and western) boundaries look to be about 2.5 kms in length. In light of the
contents of document 2, one must wonder about the appropriateness of the State’s
inclusion in its notice of a s 29(7) statement. However that matter is not to the point.
For present purposes, its relevance is only that it shows that the proposed tenement has
previously been, or is, the subject of tenements which, as far as the evidence goes,
have not caused damage to the sites. The content of document 3 is also relevant to that
issue.
[40] Marputu submits that I should not treat document 1 as relevant, and that I should
simply accept Mr Williams’ evidence as to the location of the soak on the southern
boundary of the proposed tenement area. The State submits that document 1 supports
its submission that there is insufficient evidence to establish that the sites identified by
Mr Williams are located in, or in the vicinity of the proposed tenement.
[41] Marputu also seeks to rely on affidavits by Mr Williams and Mr William Henry Kruse
filed in connection with earlier objection proceedings. It submits that such material
supports Mr Williams’ evidence concerning the jukurrpa. The native title party in
those proceedings was the native title claim group which successfully sought the
determination pursuant to which Marputu now holds the relevant title. Clearly, when
Mr Williams swore his affidavit in the present proceedings, he was aware of the
affidavit which he had affirmed in the earlier proceedings. It seems probable that he
was also aware of Mr Kruse’s affidavit. Marputu does not suggest that it was
previously unaware of either Mr Kruse’s affidavit in the earlier proceedings or that of
Mr Williams. Nor does it explain why it did not seek to locate other witnesses. It
chose to rely on Mr Williams’ more recent affidavit and, in my view, that choice was
appropriate. I see no justification for permitting Marputu to lead further evidence at
this stage.
LOCATION OF THE SITES
I accept Mr Williams’ evidence that the soak is on the southern boundary of the
proposed tenement area. Beyondie is the name of a station but as I have said, there is
also a road called “Beyondie Road”, which might suggest that the name “Beyondie”
describes a wider area than simply the location of a property or homestead. The road
provides access to the area from the west. It passes very near to the south-western
corner of the proposed tenement area. It is probable that Mr Williams used the word
“Beyondie” in a more general sense.
THE AH ACT
[43] Section 5 of the AH Act provides:
This Act applies to —
(a)
any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
(b)
any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;
(c)
any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;
(d)
any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.
[44] It is possible that protection under the AH Act may not extend to areas or sites to
which s 237(b) applies. It is also possible that s 237(b) may not apply to sites
protected under the AH Act. Once this difference in focus is recognized, it becomes
difficult to identify the extent to which the AH Act might protect sites of particular
significance to traditional owners. In order to do so, it would be necessary that I
identify a particular site, identify the various ways in which there might be an adverse
impact of the kind contemplated by s 237(b), and then consider the extent to which the
AH Act might reduce the likelihood that there will be such impact. No party has made
any attempt to demonstrate how the AH Act might operate in the present case.
[45] The sites to which the AH Act applies are set out in s 5. Sections 15-18 provide
limited protection to such sites. Section 19 establishes a category of “protected areas”.
However a site must be of “outstanding importance” in order that it be declared to be
such an area. Before recommending that a site be declared to be a protected site, the
relevant minister must consult with numerous identified parties. The minister may
then, in the exercise of his or her discretion, make such a recommendation, which
recommendation the Governor may adopt. The restrictions concerning protected areas
include the limited protection offered by ss 15-18, but are otherwise to be prescribed
by regulation pursuant to s 26. Although s 26 seems to contemplate regulations made
on a “site by site” basis, the section may be construed as permitting the making of
regulations of more general application.
[46] The provisions of the AH Act may, in some circumstances, reduce the chances of any
adverse impact upon sites to which it applies. However it has not been demonstrated
that it has relevant application in the present case. Below, I discuss the possible
application of s 5. There is certainly no basis for inferring that the presently relevant
sites would be “protected areas” pursuant to s 19.
PARTICULAR SIGNIFICANCE
As concerns the word “particular”, the cases seem to reflect the decision in Cheinmora
v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21, which
decision concerned the Native Title Act in an earlier form. Carr J held, at [34]-[35],
that:
I have reached the conclusion that the tribunal's construction of s 237(b) is correct, ie that a relevant site is one which is of special or more than ordinary significance to the native title holders. It is not enough that the site simply be of significance to the native title holders. That would leave the word "particular" with no work to do. It would also involve a notional transposition of that word from being in front of "significance" (as it appears in the subsection) to immediately after it. If parliament intended that there be no qualification on the extent of the significance of the site, it would have left the word "particular" out. The situation is, in my opinion, that a relevant site is one that is of special or more than ordinary significance to the native title holders in accordance with their traditions. There is no reason why there should not be more than one such site in any relevant area. Where there are several sites which the native title party claims are of particular significance, the tribunal will have to make its own factual assessment of that matter.
[48] The interference need not be physical. See FMG Pilbara Pty Ltd v Yindjibarndi
Aboriginal Corporation RNTBC [2014] FCA 1335 at [76] (per McKerracher J).
[49] The Shorter Oxford English Dictionary defines the term “soak” as a, “percolation of
water; water which has seeped through the ground, etc”. It gives another meaning,
said to be peculiar to Australia and New Zealand, namely, “a hollow where rainwater
collects, a water-hole”. Whichever definition is applied, it is reasonable to infer that
the surface area of a soak will vary from time to time, as the water level rises and falls.
Further, there will generally be drainage sources outside of the visible water. These
considerations suggest that it would generally be difficult to identify a finite and
permanent “shoreline”. In that context, and having regard to the map, there is no
reason to doubt that the soak at least impinges upon the southern boundary of the
proposed tenement area. As I have said, I accept Mr Williams’ evidence to that effect.
The water feature shown on the map suggests that the soak is about half-way between
the eastern and western boundaries of the proposed tenement.
[50] As to the area of the proposed tenement traversed by the nyii nyii jukurrpa, Mr
Williams says that it starts to the west and passes through the southern boundary of the
soak. I have observed that the proposed tenement area is only about 7.5 kms by about
2.5 kms. If the jukurrpa travels from the west to the soak, it must roughly follow the
southern boundary of the proposed tenement area. The northern tip of the soak
appears to be about 3 km from the western boundary. In my view, the locations of both
sites are sufficiently identified. I reject the State’s submission to the contrary.
TRADITIONAL OWNERS’ CONCERNS
[51] Clearly, Mr Williams claims to reflect the views of the traditional owners. I proceed
on that basis. I accept his evidence to the effect that even minor disturbance of the soil
would provoke anger amongst the traditional owners. I accept also that the traditional
owners fear that if the proposed grantee carries out work in the “wrong” locations,
there will be damage to the nyii nyii jukurrpa, which damage may make it difficult or
impossible for them to pass on their traditional culture. Further, those who, like Mr
Williams, have responsibility for protecting the jukurrpa may be punished. The people
may fall ill. The State does not dispute the assertion that the traditional owners have
such concerns.
SIGNIFICANCE OF THE SITES
[52] The next question is as to the significance of the two sites. Mr Williams deals with
these matters at paras 14-17 of his affidavit. I do not understand the State to submit
that the sites are, from the point of view of the native title holders, of no significance.
In an arid area, and particularly for nomadic hunter-gatherers, any water source will be
of considerable significance. Human beings, and the animals and vegetables which
provide their nourishment are generally dependent upon the continued presence of
water. Reliance upon animal behaviour as a guide to finding water, such as the flight
paths of birds, would readily become part of the collective knowledge of a nomadic
group. Group knowledge, passed on from generation to generation, may well become
part of the group’s traditional laws and customs.
[53] In the present case, the importance of the soak as a source of water has been enhanced
by the fact that the old people traditionally lived there, again, obviously because of the
presence of water for themselves, animal life and plant life. It is by no means unusual
for people to attribute particular significance to the places where older members of
their group have spent their final years, and perhaps died.
[54] Mr Williams says that the well-being of his people may be adversely affected if there
is interference with the jukurrpa. See para 18 of his affidavit. He also fears
punishment if the jukurrpa is damaged. His evidence reveals ongoing inspection and
maintenance of the soak, and the re-telling of stories concerning both sites. The perceived risks of ill-health and punishment also suggest that the sites have particular
significance to the traditional owners.
In light of this evidence, the State’s assertion that the sites are not of particular
significance to traditional owners has little substance. The sites are sufficiently
identified, and their importance is explained. There is no suggestion that such
importance is attributed to the country generally, either within or beyond the
boundaries of the proposed tenement. The essentiality of water for human survival
would, in most cases, be a sufficient basis for inferring particular significance. In this
case the association with the old people re-inforces that assessment. Further, such
significance is recognized in the stories of the traditional owners who see themselves
as having a duty to protect and maintain the soak. The soak cannot be sensibly
separated from the path of travel of the nyii nyii jukurrpa. There is no challenge to Mr
Williams’ expression of concern on the part of the native title holders, that the grant
may lead to damage to the sites. The evidence also indicates a concern that damage to
these sites might cause damage to parts of the jukurrpa outside of the proposed
tenement.
[56] I am satisfied that the sites are of particular significant to the native title owners in
accordance with their traditions.
THE RISK OF INTERFERENCE
[57] It is unfortunate that the proposed grantee has not indicated his intentions with regard
to the soak and the area around the western part of the southern boundary, given that
the traditional owners have now identified particular sites. As Marputu submits, it is
reasonable to infer that if he may explore in that area, he will do so, and that such
exploration may include work of the kind described in s 66 of the Mining Act. Such
work might include entry to the site with machinery, digging pits, trenches and holes,
sinking bores and tunnels, excavating and extracting and/or removing earth, soil,
stone, fluids or mineral-bearing substances. He would also be authorized to take water
from the soak, subject to the Rights in Water and Irrigation Act 1914 (WA). That Act,
and administrative action thereunder, may limit the right conferred by s 66 of the
Mining Act with respect to water, but such a right is clearly contemplated by that
section.
[58] The proposed grantee has offered to negotiate generally, but that is not to the point for
present purposes. Had the parties agreed, the present proceedings may have been
resolved by consent. However there has been no agreement. Hence I must decide
whether the objection should be upheld. The proposed grantee may be willing to
negotiate, but that is no guarantee of a successful outcome, particularly given his
failure to say anything about his intentions concerning the sites in question. In any
event, if he wishes to negotiate, he will be able to do so pursuant to s 31(1).
[59] Matters going in exacerbation of the risk include:
the wide range of functions which will apparently be authorized by the grant of the proposed tenement;
the proposed grantee’s apparent failure to seek any further details concerning the precise location of each site; and the proposed grantee’s failure to provide details as to probable or possible exploration activities to be performed in, or near those sites so far as they are presently identified. [60] Matters going in mitigation of the risk are said to be:
the protection offered by the AH Act; the possible adoption of an RSHA; the proposed special condition concerning execution of such an agreement; and
subject to my previous comments, further possible negotiations between the traditional owners and the proposed grantee. [61] In considering these factors, one must keep in mind that the ultimate question for
determination is whether the expedited procedure applies by virtue of the operation of
s 237, and that such application would lead to the traditional owners having no right to
make submissions or negotiate in good faith pursuant to s 31(1). I keep in mind the
State’s submission that s 237 should not be applied so as to confer upon the traditional
owners a right of veto over access to the proposed tenement.
[62] As to the AH Act, its operation is no doubt relevant to the extent of any risk. When a
traditional owner fails to identify, with sufficient precision, sites said to be of
particular significance, the Tribunal might well infer that the Act may offer a sufficient
degree of protection against any adverse impact such as that contemplated by s 237(b).
Where, as here, the sites and concerns are particularized, one would expect that the
State, or the proposed grantee would identify the way in which the AH Act is said to
apply so as to reduce the risk of adverse impacts. There has been no real attempt to do
so.
[63] Section 5 of the AH Act identifies the places or sites to which the Act applies. The
sites, as I have found them to be, would fall within s 5(c), but only if the Aboriginal
Cultural Material Committee were satisfied as to their association with the traditional
owners, the sites’ historical, anthropological, archaeological or ethnographical interest,
and that they should be preserved because of their importance and significance to the
cultural heritage of the State (ie, Western Australia). This test bears little resemblance
to the description contained in s 237(b), namely areas or sites of particular significance
to the traditional owners. It is possible that s 5(a) might apply, however it is difficult
to identify any “object, natural or artificial” left, or apparently left at either site. It
may be that there is some other way of engaging the AH Act, but it has not been
demonstrated to me. Further, as I have said, there is no reason to believe that s 19
would apply to the sites.
[64] In the absence of some explanation as to how the AH Act may protect the sites, I find
the State’s assurance to be of little comfort in considering the likelihood of
interference with them. As to any RSHA, the State points out that the proposed
special condition:
… would allow [Marputu] to require the [proposed grantee] to enter into a RSHA that
would, among other things, provide for heritage surveys before any exploration
activity in the [proposed tenement].
[65] The State also asserts, at paras 72 and 73 of its contentions that:
72. The Tribunal has previously found that each of the RSHAs:
a.
require the Grantee Party to "notify, consult and, if necessary, carry out surveys with the [native title party];";
b. provides, inter alia: i. a commitment to ensure the ongoing protection of Aboriginal
heritage; and
ii. obligations to take into account activities that could significantly
affect cultural heritage and to discuss proposed activities and
conduct heritage surveys where appropriate.
73. The RSHA condition:
"enhances the existing regulatory regime and can be taken into account as
one of the relevant factors in determining in a particular case whetherinterference with sites of particular significance is likely." …
[66] Although the terms of any RSHA may reduce the risk of adverse impact, to some
extent, they leave open the real possibility, perhaps likelihood that there would be
further disputes, in good faith or otherwise, about concepts such as “take into
account”, “significantly affect” and “discuss”. As I have previously observed,
protection of that general kind may be appropriate where the traditional owners’
concerns are unparticularized, but that is not the present case. In those circumstances,
the proposed grantee’s willingness to enter into such an agreement says little about the
extent to which the sites will be at risk. The State’s proposed special condition
similarly offers little or no protection in this case. In all of these circumstances, I am
satisfied that the native title holders’ concerns are reasonable.
CONCLUSION
[67] I am not satisfied that grant of the proposed tenement is unlikely to interfere with
either of the sites. I have no doubt that each of the sites is of particular significance to
the traditional owners in accordance with their traditions.
[68] I determine that the proposed tenement does not attract the expedited procedure.
The Hon John Dowsett AM, QC
President
2 April 2019
ANNEXURE
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