Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation/ /Western Australia/Marford Group Pty Ltd
[2012] NNTTA 119
•15 November 2012
NATIONAL NATIVE TITLE TRIBUNAL
Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation/ /Western Australia/Marford Group Pty Ltd, [2012] NNTTA 119 (15 November 2012)
Application No: WO11/976
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Mungarlu Ngurrarankatja Rirraunkaja Aboriginal Corporation (WC98/68) (native title party)
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The State of Western Australia (Government party)
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Marford Group Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Helen Shurven, Member
Place: Perth
Date: 15 November 2012
Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection application – whether acts are likely to interfere directly with the carrying on of community or social activities – whether acts are likely to interfere with sites of particular significance – expedited procedure attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237
Mining Act 1978 (WA), s 66
Aboriginal Heritage Act 1972 (WA)
Cases:Andy Campbell and Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd, [2012] NNTTA 48
Banjo Wurrunmurra and others (Bunuba)/Western Australia/Francis Robert Salmon and another [2012] NNTTA 27
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Daisy Lungunan and Ors n behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24
Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118
Les Tullock and Others on behalf of Tarlpa/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Les Tullock & Others on behalf of Tarlpa/Western Australia/Duketon Consolidated Pty Ltd, [2011] NNTTA 124
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
WF (Deceased) & Ors (Wiluna)/Emergent Resources Ltd [2012] NNTTA 17
Representative of the Ms Tessa Herrmann, Central Desert Native Title Services
native title party: Ms Irene Assumpter, Central Desert Native Title Services
Representatives of the Mr Joshua Berson, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr Dennis Hawtin, Giralia Resources NL
REASONS FOR FUTURE ACT DETERMINATION
On 6 April 2011, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E69/2676 (‘the proposed licence’) to Marford Group Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the negotiations required by s 31 of the Act).
The proposed licence comprises an area of 145.71 square kilometres and is located 153 kilometres north of Wiluna in the Shire of Wiluna. It overlaps the Birriliburu native title determination area (WAD6284/1998) by 99.81 per cent and no other native title claim overlaps the proposed licence area.
On 28 July 2011, the Mungarlu Ngurrarankatja Rirraunkaja (Aboriginal Corporation), on behalf of the Birriliburu native title holders (‘the native title party’), lodged an expedited procedure objection application in relation to the proposed licence (designated by the Tribunal as WO11/976).
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the s 29 notification date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objections by consent. Parties had a number of status conferences between September 2011 and March 2012, where an agreement was discussed, and where the grantee party representative reported waiting for some months for instructions from the grantee party. However, parties were unable to reach agreement and on 11 April 2012, parties agreed to proceed to inquiry and compliance dates were set for parties to submit documents and evidence.
The Government party lodged evidence and contentions on 3 July 2012, with supporting documentation having been lodged by the Department of Mines and Petroleum (‘DMP’) on 29 May 2012.
The native title party lodged its evidence and statement of contentions on 5 June 2012, including the sworn affidavit of Mr Frankie Wongawol, dated 4 April 2011, and Ms Lena Long, dated 5 April 2012
On 28 June 2012, I was appointed by Deputy President John Sosso, as the Member for the purpose of conducting the inquiry.
On 10 July 2012, the grantee party lodged a statement of contentions.
On 8 August 2012, the native title party lodged a statement of contentions in response (‘Response’) to the grantee party and Government party submissions. The native title party also withdrew its earlier submissions in relation to s 237(c) of the Act. Accordingly, this decision will focus only on s 237(a) and s 237(b) of the Act.
On the basis of the submissions of all parties, I am satisfied that the objection can be adequately determined on the papers (as per 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 and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Hon C J Sumner, Deputy President, considered the applicable legal principles (at 439-449 [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of Tarlpa/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]);
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’; and
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
Evidence in Relation to the Proposed Act
The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries and historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (‘DIA’); a copy of the tenement application; a copy of the proposed endorsements and conditions of grant; the instrument of licence; and a tengraph quick appraisal.
Government party documentation establishes the underlying land tenure of the proposed licence and any relevant services affected to be as follows:
GWA/15, East Murchison at 100 per cent (DMP advises this is a groundwater management area within the Canning Stock Route reserve, managed by the Western Australian Department of Water)
Unnumbered Land Act Reserve (UNN 1001) at 52.5 per cent
Vacant Crown Land at 47.5 per cent
Eight exploration tenements granted between 1982 and 2003, between 2.1 per cent and 84.9 per cent, now surrendered
Canning Stock Route and four other tracks
Ingebong Hills and Mt Davis
Number 6 Government Well
Pierre Spring
Twenty five minor watercourses, non perennial
Four Geodetic Survey Stations (SSM’s)
As well as the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]), further conditions to be imposed on this proposed licence are as follows:
5. No interference with Geodetic Survey Station SSM 12 and mining within 15 metres thereof being confined to a below depth of 15 metres from the natural surface.
Consent to explore on Canning Stock Route Reserve granted subject to:
6. No exploration activities being carried out on Canning Stock Route Reserve which restrict the use of the reserve.
In addition, the Government party’s contentions (at 18) indicate that a further condition will be placed on the grant of the proposed licence requiring the licensee, ‘if so requested in writing by the Birriliburu, the applicants in Federal Court application no. WAD6284 of 1998 (WC98/68)’, to ‘execute in favour of the Birriliburu the Central Desert Regional Standard Heritage Agreement’ (‘RSHA’).
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
· The licensee’s attention is drawn the to the provisions of the AHA and any related Regulations; and
· The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The extract from the Aboriginal Heritage Inquiry System, Aboriginal Sites Database maintained by the DIA pursuant to the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows two registered sites within the proposed tenement, namely the Pierre Springs/Well 6 (ID 2118 – camp, water source, open access, no restrictions) and Canning Stock Route (ID 2119 – painting, open access, no restrictions).
The State’s contentions dated 3 July 2012 for the proposed licence outline rights which will be conferred by the grant of the proposed tenement under s 66 of the Mining Act, as well as addressing the native title party affidavits and contentions. It states that 99.8 per cent of this proposed licence falls within the Birriliburu Part A determined area, with the remaining portion falling within the undetermined area of the Birriliburu native title claim area. They state that the tenure is 100 per cent unallocated crown land, has no Aboriginal communities located upon it, has been subject to prior exploration licences, and also confirm the DIA documentation as outlined above.
Native title party contentions and evidence
In support of its submissions, the native title party provide the affidavit of Mr Frankie Wongawol, dated 4 April 2012, made in the following terms:
I, Frankie Wongawol, pensioner, of Bondini Community, in the State of Western Australia, sincerely affirm as follows:
1. I am a traditional owner for the area of tenement application E69/2884 and E69/2676 (collectively “the Tenements”). I am a member of the Wiluna native title claim, and a Birriliburu native title holder. I am a senior wati (initiated man) and a Putijarra Martu man. My Martu name is Miparri. I have cultural authority to speak for the area of the Tenements.
2. I make this affidavit in support of the Statement of Contentions of the Objector (the Native Title Party) in an inquiry to the objections to the expedited procedure WO11/976 and WO11/979.
3. I have been shown maps of the Tenements by a lawyer from Central Desert Native Title Services, copies of which are attached and marked “FW1” and “FW2”.
4. Everything that I have said in this affidavit are things that I know to be true.
5. As an elder, I have the important job of looking after and protecting country. Martu law says that I have to look after the special places and the dreaming stories (jukurrpa). When I talk about ‘jukurrpa’, I mean all of the places, special sites and tracks that were left by the dreaming. The jukurrpa is what created country; it is still alive today and we have to respect it.
6. Tenement E69/2884 is to the south and the west of Well 9 on the Canning Stock Route. Well 9 is sometimes called Weld Spring, but Weld Spring also means a bigger place, mostly to the south of the well. The kakarra (eastern) side of the Canning Stock Route in E69/2884 is a really special place that Martu mob call Weld Spring.
7. Weld Spring if a large soak. The old people used to camp there all the time. They camped there because of the water at the rockhole. Because there is water there, the whitefellas put in a well. Our old people also camped there all the time because that area is important, and comes from the jukurrpa.
8. Going through Weld Spring, including in E69/2884, is crow jukurrpa (warlu). Warlu comes up along the stock route, following the water. They got to follow the water. The jukurr crosses through Weld Spring. The soak there was made by warlu; it is a very important place.
9. The crow jukurrpa also made the bush tobacco and left it at Weld Spring. This is an important spot for bush tobacco; people go up to Weld Spring to get it and bring it back down to town [Wiluna]. The warlu left that bush tobacco there. There’s bush tobacco around the soak that the warlu left.
10. When I travel though that country, I sing the song for the warlu jukurrpa. I know the song; so does Timmy P. Sometimes we sing the song sitting down in Wiluna – because the song is about the young boys going through [law business] – but it is really important to sing the song when you go through Weld Spring, Well 9. We sing it every time we go through that country. We go up there whenever we can; we go for four, maybe five days.
11. The emu jukurrpa (karlaya) also goes through that country, including in E69/2884. The emu and the crow travel together through there. The emu jukurrpa comes up from round Mt Russell way. He meets up with the crow in this country and then they travel on together, with the bush turkey. The bush turkey he travelling with the emu and crow and keeps going north. That emu jukurrpa story goes all the way up to Broome.
12. The crow, emu and turkey jukurrpa all go together through E69/2876 as well. They didn’t sit down there, but when we go through there we sing the song for the warlu, the jukurrpa they left the song in that country. We sing it there and on up to Well 9. We take the boys up through the tenement, and we sing that song all along. All go though there – crow, turkey, emu – and they left the songs.
13. Well 6 of the Canning Stock Route is in E69/2676. The Martu name for that place is Milyinirri. There’s rock art there at Well 6. I can’t talk about in this paper; I’ll get in trouble.
14. There’s an important soak, main one, north west of well 6. It is outside of tenement E69/2676, but it is an important one.
15. Weld Spring is also really important to Martu because of what happened there. The whitefellas, they killed lots of Martu there. They shot all the men, and kept all the ladies; that is why there if half-caste people. The people that they killed there, the whitefellas burned them. This is part of what makes Weld Springs so important. We need to protect that country because of what happened to our old people there.
16. I’m worried about explorers going in that kakarra side of the stock route in E69/2884; he can’t go in there. The spirits of the Martu people who were shot are there and can’t be messed with. Explorers who go in there will get hurt by those spirits.
17. I’m also worried about the jukurrpa getting messed up, that songline. It is our job to keep that songline safe. We sing the song in our country, and then it keeps going north, all the way to Broome. We sing our part, and then the next people take it over. We don’t want explorers going into that kakarra part [of E69/2884], doing work like taking soil and walking around. If they go in, even just to look around, they will mess up warlu jukurrpa, or get hurt by those spirits.
18. If explorers muck up the jukurrpa, or if they get hurt by the spirits, I will get the blame. It is my job to look after that country; even if it isn’t my fault, I get in trouble, punished, if someone else does something wrong. I told the Tribunal about the time that I got in trouble when this happened before. I don’t want to talk about it again here; the Tribunal already knows that.
Mr Wongawol states he is a Birriliburu native title holder and a senior initiated man. I accept he has the necessary authority to speak for the area on behalf of the native title party. Mr Wongawol states he lives at Bondini Community, which is approximately 7 kilometres south east of Wiluna and approximately 200 kilometres south east of the proposed licence. I note that paragraphs 6-11 and 15-17 largely relate to another tenement (E69/2884), and I take that evidence into account only to the extent it provides context for the evidence in relation to the proposed licence in this matter (E69/2676).
The native title party also provided the affidavit of Ms Lena Long in support of its contentions, dated 5 April 2012, and made in the following terms:
I Lena Long, pensioner, of Unit 2, Scotia Street, Wiluna, in the State of Western Australia, sincerely affirm as follows:
1. I am a traditional owner for the area of tenement application E69/2884 and E69/2676 (collectively “the tenements”). I am a member of the Wiluna native title claim, and a Birriliburu native title holder. I have cultural authority to speak for the area of the Tenements.
2. I make this affidavit in support of the Statement of Contentions of the Objector (the Native Title Party) in an inquiry in the objections to the expedited procedure WO11/976 and WO11/979.
3. I have been shown A3 maps of the Tenements by a lawyer from Central Desert Native Title Services.
4. Everything I have said in this affidavit are things that I know to be true.
5. Tenement E69/2884 is right near Well 9, and on top of the place we call Weld Spring. I know that there is a soak at Weld Spring. That soak was there before the well, before white people put it in. That spring was there first, been there for the old people. The old people used to stop and camp there.
6. Because old people used to go there, to Weld Spring, they got into trouble with the whitefellas. My grandmother told me the story, the whitefellas they be shooting them, burning them. The Martu people, they were just there because they wanted water, and those white people got them. Those guns, they fire faster than spears.
7. I don’t want to camp there now, because of what happened. Those spirits they must be there. Some of the people that got killed, they were mabarn [medicine men]. That makes me scared. Those spirits shouldn’t be disturbed.
8. I want that area around Well 9 and Weld Spring to be looked after properly, because of what happened there. It is important to us, because of what happened to our old people. Not just the well, but the soak too.
9. Tenement E69/2676 is over Well number 6 on the Canning Stock Route. Number 6 was our old people’s ngurra [home, home country]. I grew up as a little one there, after I was born at number 7 [well]. My grandmother lived there at well 6. That was a law ground too at number 6. That is a ngurra for us. It was used as a law ground when I was little. The father of Jimmy Williams – the Man Behind the Gun – he went through law there. He got a giveaway wife there. They hit him on the back, and give him daughters.
10. There is rock art at well number 6, but I never been there, there in the camp. That rock art, not for me to look at, I’m a woman.
11. The stock route is important to me because I was born there, at well 7. It has a lot of dream time stories along there for men, which I can’t talk about. They go through number 6 and up to number 9 and then keep going. It has dreamtime stories along there for women, but I can’t talk about them. You need to ask the old ladies.
12. Martu long time, years ago, before our time, they traveling along there, following that water. They know the water holes, away from the wells. Canning making Aboriginal people dig all the wells along there, but they don’t know the main ones; people kept them secret. It was the jukurrpa going through there that made the water, at Weld Spring and at number 6. Those jukurrpa make those places important.
13. When they travel on law trips, coming down from Durba Springs, they got a lot of jukurr stories along that way. People sing the songs for that story. The men still sing the songs traveling down.
Ms Long outlines that she lives at Wiluna and is a Birriliburu native title holder. I accept she has the necessary authority to speak for the area on behalf of the native title party. Wiluna is approximately 150 kilometres south east of the proposed licence. I note that paragraphs 5-8 largely relate to another tenement (E69/2884), and I take that evidence into account only to the extent it provides context for the evidence in relation to the proposed licence in this matter (E69/2676).
Community or Social Activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith v WA’)). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith v WA at 451 [26]). The assessment is also contextual, taking account of other factors which may already have had an impact on the native title party’s community or social activities (such as mining or pastoral activity), (Smith v WA at 451 [27])).
In relation to s 237(a), the native title party makes the following submissions:
The ‘activities associated with the native title holders’ obligation to ‘look after country’ are not ‘mere assertions about spiritual connection’ (at 3.5);
There is a community of native title holders in the area who have been determined to hold exclusive native title rights and interests over the tenement area;
While ‘evidence of the mere existence of songlines is not enough to support a decision that the expedited procedure does not apply’, further evidence regarding community or social activities which follow the songlines can be persuasive (see Banjo Wurrunmurra and others (Bunuba)/Western Australia/Francis Robert Salmon and another [2012] NNTTA 27 at [42]). Relevant traditional owners sing the songs associated with the jukurrpa which travels through the proposed tenement;
The song for the warlu [crow] jukurrpa is associated with the initiation process of young men;
Grantee party activities over the tenement will interfere with the dreaming track formed by the jukurrpa, or sites left by the jukurrpa, which is likely to interfere with the community activity of signing the songline;
Members of the native title party have a responsibility to other native title claimants and holders into whose country the jukurrpa/songlines travel; and
Meaningful consultation and negotiations between the native title party and the grantee party need to occur to ensure that community and social activities are not likely to be interfered with.
The affidavit of Ms Long states that Well Number 6 overlaps the proposed tenement and that this ‘was our old people’s ngurra [home, home country]’ and was also used as a law ground (at 9). Ms Long also states that the [Canning] Stock Route has a lot of dream time stories that go through Well Number 6 (at 11). Ms Long states that it was the jukurrpa that made the water at Well Number 6, and made those places important (at 12), and that when the native title party travel down on law trips they sing the songs for that story (at 13).
Mr Wongawol states that the crow, emu and turkey jukurrpa all go through the proposed tenement. He states that when the native title party go through the proposed tenement and take the boys through, they sing the song for the warlu (at 12).
The Government party contentions outline the matter of Silver and Ors v Northern Territory of Australia and Ors (2002) 169 FLR 1; [2002] NNTTA 18, which establishes that spiritual activities fall into consideration of s 237(a) when they are ‘rooted in physical activities’ (at [36]). There must be evidence of carrying on of activities and they must relate to claimed native title rights and interests, and are necessarily carried on by more than just a native title party individual (at [39]-[41]). This is consistent with the legal principles relating to s 237(a) in paragraph [14] of this determination.
The Government party contentions accept that the native title party conduct community and social activities, such as singing songs associated with the jukurrpa (at 44). However the Government party contends that there is not likely to be direct interference with those activities because:
The area has been subject to prior exploration and possibly mining activity [I do note the DMP materials show previous exploration tenements granted, but no mining tenements];
There are no Aboriginal communities situated within the proposed licence;
Mineral exploration would not cause substantial interference with native title party’s access to the area;
Mineral exploration can coexist with the community and social activities outlined by the native title party; and
The Government party will place endorsements and conditions on the proposed licence.
For the most part the grantee’s submissions support those contentions made by the Government party. The grantee party contentions do state that the Tribunal must take into account other activities that may have had an impact ‘on the native title party’s community or social activities’ in the relevant area ‘such as mining or pastoral activity’, (at 6-8). Further, the grantee party contends that the native title party’s evidence in relation to community and social activities ‘is vague’ (at 9) and the act ‘is not likely to interfere directly with the carrying on of the community or social activities of the Native Title Party’ (at 14-15).
The native title party’s Response states, in relation to the grantee party contentions, that:
‘where information provided by a grantee party is in the form of sworn evidence, then the Tribunal may lend it greater weight’ (see Butcher Cherel and others (Gooniyandi)/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (1 March 2007) at [91], and given that the information provided by the grantee party ‘lacks detail and is unsworn’ the Tribunal ‘should place no weight, or less weight’ upon that information (at 2.2-2.3 and 3.15);
It appears that the grantee party intends to conduct ‘RAB drilling’ and intends to use ‘existing tracks’, with the native title party rejecting that presumption on the basis that it is likely no such tracks exist or if they had been created previously, they should have been rehabilitated (at 2.4-2.6);
The grantee party is prepared to sign a RSHA, but this does ‘not require the grantee party to enter into broader discussions with the Native Title party about their exploration program’ (at 2.7 and 2.12), nor do the intended activities of soil sampling and rock chipping trigger a heritage survey under the RSHA (at 2.8), nor does an RSHA ‘address community and social activities’ (at 3.10);
The grantee party asserts that mining tenements have existed over the proposed licence but ‘the Grantee Party has made a mere assertion of the grant of tenure...[and] has not provided any actual evidence of what activities occurred in the area as a result of those previous grants’ (at 2.9);
The grantee party contentions assert that the proposed tenement area remains the subject of a pastoral lease. The native title party assume this to be an error as the subject tenement is covered by Unallocated Crown Land (at 2.10) – [I note there is in fact no pastoral lease on this tenement, see further information as outlined in paragraph [35] and [45] below];
The AHA and RSHA are not sufficient to protect the proposed licence area from interference of the kind contemplated by s 237 of the Act (at 2.14-2.16).
The native title party’s Response states, in relation to the Government party contentions, that:
The Government party stated the area had previously been subject to granted exploration licences, but no evidence was provided of the use to which those areas were put (at 3.2);
There may be an issue with the effectiveness or legal status of the Government Party’s proposed condition which ‘prevents exploration activities’ being carried out on the Canning Stock Route Reserve (at 3.3). That condition reads:
Consent to explore on Canning Stock Route Reserve granted subject:
No exploration activities being carried out on the Canning Stock Route Reserve which restrict the use of the reserve.[I note that Tribunal mapping supports the native title party’s contention that this area is in fact Unallocated Crown Land and there is no reserve for this condition to apply to. As such, I give little weight to the submission by the Government party as to this proposed condition in my decision];
The RSHA will only cover activities that are defined as ‘ground disturbing’, yet some activities can disturb the ground without being so defined (at 3.4). Further, the RSHA does not address community or social activities and confines itself to a narrow concept of ‘heritage’ (at 3.10);
The native title party state that Mr Wongawol’s affidavit (at paragraphs 16 and 18) does outline specific ‘concerns with activities which could be carried out by the Grantee Party – and which according to the GP July Contentions are likely to be carried out – and which are likely to cause interference with sites and areas of particular significance’. They state this is contrary to the Government party’s July contention (at paragraph 23) that the statements of Mr Wongawol are general concerns, not sufficient to overcome the assumption that the grantee party will comply with the regulatory regime (at 3.5) – for example, he is concerned about explorers taking soil and walking around in the eastern part of the proposed licence;
The Government party contentions state that the affidavits of Mr Long and Mr Wongawol ‘contain little factual information and are, in part, repetitive’. The native title party states, to the contrary, they have provided evidence that male members of the native title party take boys through the proposed tenement and sing the song of the warlu jukurrpa, and that the Well Number 6 was created by the jukurrpa and was used as a law ground (at 3.6-3.7).
Conclusion regarding s 237(a)
There is little precise evidence regarding community and social activities, apart from the singing of the warlu jukurrpa by male members of the native title party when they travel through the proposed licence. There is also passing reference to Well Number 6 being used as a law ground, but this is made in the past tense and no details of it currently being used for law business were provided.
I accept that, given the size of the tenement (145.71 square kilometres) relative to the determined area which overlaps it (66,709.81 square kilometres), and the likely nature of exploration activities, that these activities can co-exist with community and social activities given the evidence as provided in this matter. As such, I do not believe there is likely to be direct interference with these activities for the purposes of s 237(a). In relation to the existence of the jukurrpa, I refer to them below in the analysis of s 237(b), as they relate more to the nature of sites as the evidence has been presented in this matter.
Sites of Significance (s 237(b))
The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted, it is established in DIA documentation that there are two Registered Sites within the overlap between the determination area and the proposed licence area. However, this does not mean that there may not be other sites or areas of significance to the native title party over the area of the proposed licence or in the vicinity, nor is it definitive as to whether these areas are of particular significance to the native title party. 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 each matter, and whether they are of particular significance.
In relation to s 237(b) of the Act, the native title party indicates that:
The RSHA is not ‘an adequate means of dealing with issues under s 237 of the NTA’ (for example, at 4.18-4.23, 4.28, 5.2(c)), nor is the AHA (at 4.1-4.13), and in support of that contention, the native title party refers to, among other things, Tarlpa [51]. However, the grantee party takes issue with the reference to that determination because Hon C J Sumner in that matter found the expedited procedure ‘did, in fact, apply’. The implied point appears to be that, despite an objection to an RSHA on the grounds that it does not provide sufficient protection, in Tarlpa, an RSHA must have provided sufficient protection because Hon C J Sumner did not uphold the objection in that case. In Tarlpa, Hon C J Sumner’s view of the RSHA was (at [50], emphasis added):
My finding in relation to the considerable number of contentions and the evidence devoted to this topic is that the RSHA is of minor relevance to my determination because the issue to be decided, following the native title party‘s amendment of its contention, is confined to s 237(a) and whether the grant is likely to interfere directly with carrying on of the community activities associated with ‘looking after country’ as identified in the evidence in this case.
The expedited procedure was determined not to apply in that matter, however, it did not relate to s 237(b), and the RSHA issue was of minor relevance. As such, I do not dwell on this part of the grantee party’s contention further;
The proposed tenement:
ocontains Jukurrpa (or Tjukurrpa) tracks ‘made by mythic beings of great importance to the native title holders’ and the proposed licence ‘is traversed by the Warlu [crow], Karlaya [emu] and bush turkey jukurrpa’ (at 4.25)
ocontains a water source, located at Well 6 that ‘was created by the jukurrpa’ (at 4.25)
ocontains some rock art which is a site restricted to men only (at 4.25) ;
Interference with the jukurrpa ‘is likely to result where entry to parts of the Tenement have not been agreed with the Native Title Party’ (at 4.26) because:
othe jukurrpa tracks are not readily identifiable (see Les Tullock & Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 (28 June 2011) (at [40]); Les Tullock & Others on behalf of Tarlpa/Western Australia/Duketon Consolidated Pty Ltd, [2011] NNTTA 124 (1 July 2011) at (36))
ointerference with one part of the jukurr ‘may cause interference to sites and/or country located at other points along the jukurr’
omembers of the native title party ‘have a responsibility to traditional owners in other areas where the same jukurrpa lines travel’;
endorsements and conditions may not be sufficient to avoid interference with the areas of particular significance (at 4.27-4.28);
‘Meaningful consultation and negotiation between the Native Title Party and the Grantee Party is necessary to ensure that sites or areas of particular significance are not likely to be interfered with’ (at 4.29).
The affidavits of Mr Wongawol and Ms Long state that Well Number 6 is within the proposed tenement. Mr Wongawol states that there is rock art at the Well but that he cannot talk further about that or he will get into trouble (at 13).
Mr Wongawol also states that there is a soak north-west of Well Number 6 and that it is important but he says that it is outside of the proposed tenement (at 14).
The Government party contentions in relation to s 237(b) state that ‘both the existence of the AHA regime and the availability to the Native Title Party of the RSHA give rise to a presumption that sites will be protected’ (at 55).
The Government party also submits:
‘Weight must be given to the evidence provided in relation to the proposed activities of each particular grantee party, including their intention to adhere to the regulatory framework and conditions imposed by the Government party’ (at 56);
There is no suggestion the grantee party in this matter has ever, or would ever, breach the regulatory regime (at 57-58);
In relation to the rock art site located within the proposed tenement and referred to in the native title party’s evidence, it is unclear to the Government party whether this is one of the registered sites or not, but regardless the Government party accepts that there may be sufficient evidence to demonstrate this is a site of particular significance (at 59);
The Tribunal should take the same approach to jukurrpa as used in WF (Deceased) & Ors (Wiluna)/Emergent Resources Ltd [2012] NNTTA 17 (‘Emergent’) [at 34-46] (at 63);
The Government party does not believe the evidence supports the native title party’s contention that Well 6 was created by the jukurrpa (at 64);
The Government party does not accept the contention that ‘mere presence in an area may cause direct interference with that area’ (at 65).
Finally, the Government party contends (at 66), that to the extent that there are sites of particular significance on the proposed tenement, interference with them is not likely because (among other things): the grantee party is aware of the existence of the rock art site, and the AHA protects sites not on the Register.
In relation to s 237(b), the grantee party’s contentions state:
The tenement is covered by a pastoral lease [I note this is not sustained by DMP evidence, and may be a reference to another tenement also referred to in the submissions. If a combined submission such as this is provided in future, it would assist the Tribunal if the relevant party separated out the respective elements of each tenement];
The tenement has previously been subject to mining tenements [again, the commentary in the dot point above applies to this point also, given there is no evidence of the grant of mining leases having been made in the area of this proposed licence];
The initial exploration program will be conducted from old access ways (for example, existing tracks);
The native title party has ‘identified one or two areas or sites of particular significance or asserted the existence of same’ (at 19);
These are not likely to be interfered with because the grantee party:
1.will sign a RSHA
2.will abide by the AHA, and
3.‘has over 55,000 hectares to explore on E69/2676 alone’;
Grantee party intentions are relevant ‘to whether the interference and disturbance is likely to occur’ (at 21);
They are aware of the ‘protection given to Aboriginal sites, whether registered or not’, under the AHA, will act ‘lawfully and in accordance with the AHA’ (at 22-23); and are ‘willing to enter into a standard regional heritage agreement in the form approved by the Government party’ (at 24).
In relation to this evidence, I note that:
· it is asserted the Marford Group directors ‘look after the country’ but there is no detail on where or how that is done;
there are four tracks on the tenement according to the quick appraisal (plus the Canning Stock Route);
the grantee party may do activities such as RAB drilling;
the grantee party is prepared to enter into a RSHA;
there is evidence of previous exploration in the area, but not mining activity; and
the grantee party suggests the native title party should monitor and discuss their concerns but it is not clear who or how they would do this (for example, is it with the grantee party, or the relevant regulatory body?)
The native title party’s Response states:
The grantee party’s stated intention to act in accordance with the AHA ‘does not address interference that may occur under section 237(b) of the NTA which is not prohibited by section 17 of the AHA’ (at 2.13);
Statements of intention ‘do not necessarily result in actual adherence’ (at 3.16);
While the jukurrpa never ‘sat down’ in the tenement area, the jukurrpa created the water source at Well 6, as affirmed in the affidavit of Ms Long (at 3.17);
Whether interference is caused ‘is a matter for evidence’, citing Andy Campbell and Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd, [2012] NNTTA 48 (‘Andy Campbell’) in support of the fact that, for Western Desert law and culture, ‘there may be sites to which interference will be caused by mere access by the inappropriate person’ (at 3.19);
The native title party rejects the Government party’s contention that interference with sites is not likely due to the grantee party now being aware of the existence of the sites and reiterates that interference will occur if the site is accessed by a person of the wrong gender and there is ‘nothing in the RSHA or the AHA which require the Grantee Party to act in such a way as to prevent this interference from occurring’ (at 3.20).
Conclusion regarding s 237(b)
In Daisy Lungunan and Ors on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (14 March 2012), Member O’Dea noted that dreaming tracks may be regarded as sites of particular significance but that will depend on the evidence presented in each case. In Andy Campbell, Member O’Dea found, that for a gender restricted site which had been identified: ‘Compliance with relevant laws and regulations may not be sufficient to prevent interference to that site. It will be difficult for the grantee party to avoid interference with the site without consulting the native title party’. In that matter, the grantee party provided no evidence.
In the current matter, the grantee party has provided some evidence and indicates it is willing to enter into discussions with the native title party and I note the RSHA encourages such discussions around heritage issues.
The Government party indicated that general evidence of a jukurrpa is not determinative of whether or not the site is of particular significance. The Government party contends that jukurrpa tracks are common and evidence must show that specific places stand out in some way from these generic categories. In addition, to the extent that these sites are found to be of particular significance, the Government party state there is no evidence the grantee party won’t follow the regulatory regime. The Government party suggested the Tribunal should follow the reasoning in Emergent.
I note that in Emergent:
Member O’Dea determined that the act was an act attracting the expedited procedure. In that matter, the native title party objection was in relation only to s 237(b) of the Act. The affidavits of members of the native title party in that matter, including Mr Frankie Wongawol, were not reproduced in full due to cultural sensitivities so I do not have the benefit of the information specified in those affidavits, save to say that comments by Member O’Dea indicate that it lacked a quality of detail and it appears that the maps referred to in the affidavit evidence were not annexed to the affidavits;
The grantee party filed three separate sets of contentions and undertook to ‘conduct heritage surveys of the tenement area prior to conducting ground disturbing works’ and also acknowledged ‘that ground disturbing activities could interfere with sites or other areas significant to the native title party, but confirms its intention to consult with the native title party in order to avoid any breach of the AHA or interference with areas or sites of significance’; and
The native title party’s evidence indicated there were four jukurrpa across the proposed licence, however, the native title party did ‘not provide any details about the stories associated with each jukurrpa or give any indications of the paths they take through the tenement area’.
In this matter, the native title party also identifies four jukurrpa, specifying that they travel through the proposed tenement, and briefly noting the connection with Well 6. However, I find there generally to be an absence of detail in the native title party’s evidence concerning the jukurrpa. For example, the location or path of the four different jukurrpa is not clear, nor is the nature of their significance.
In relation to the Well 6 site specifically, I find the evidence more compelling. The evidence from both Mr Wongawol and Ms Long states that there is rock art located at Well 6 which is restricted to men only, and Ms Long attests to the water at Well 6 being made by the jukurrpa. As such, I am satisfied that this is a site of particular significance to the native title party.
However, I do not believe that the evidence produced by the native title party is sufficient to support a finding that the regulatory regime would be insufficient to prevent interference with that site. I am satisfied that the grantee party is cognisant of its obligations under the AHA and will undertake appropriate steps to avoid interference with sites.
The grantee party’s willingness to execute an RSHA in favour of the native title party (which is a condition of the proposed licence) reinforces my conclusion that the grant of the proposed licence is not likely to cause interfere of the kind described by s 237(b).
Further, the grantee party is on notice of both of the sites currently on the DIA Register (which are outlined at [21] of this determination, namely site 2118 and 2119), and of any other sites within the tenement area that are also protected under the AHA, including the rock art site on or near Well 6, if that site is not the painting site already identified by the DIA as site 2119. The grantee party is also on notice that the rock art site identified in the affidavit evidence as being on or near Well 6 is a gender specific site. The Government party has given assurances that the grantee party is aware of the existence of the rock art site, and the AHA protects sites, even if they are not on the Register.
Therefore, on the evidence, I am satisfied that the regulatory regime will be sufficient to prevent interference with the sites of particular significance to the native title party in this matter.
Determination
The determination of the Tribunal is that the grant of exploration licence E69/2676 to Marford Group Pty Ltd is an act attracting the expedited procedure.
Helen Shurven
Member
15 November 2012
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