Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd
[2020] NNTTA 56
•18 September 2020
NATIONAL NATIVE TITLE TRIBUNAL
Ngarlawangga Aboriginal Corporation and FMG Pilbara Pty Ltd [2020] NNTTA 56 (18 September 2020)
| Application No: | WO2018/0953 |
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 Ngarlawangga Aboriginal Corporation (WCD2016/007)
(native title party)
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FMG Pilbara Pty Ltd (grantee party)
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State of Western Australia (Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
| Tribunal: | The Hon J.A. Dowsett, AM, QC |
| Place: | Brisbane |
| Date of decision: | 18 September 2020 |
| Date of reasons: | 1 September 2020 |
| 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 – the meaning of interference – expedited procedure – the act is an act attracting the expedited procedure |
| Legislation: | Aboriginal Heritage Act 1972 (WA) ss 5, 15, 16, 17, 18 Mining Act 1978 (WA) ss 63, 66 Mining Regulations 1981 (WA) reg 20 Native Title Act 1993 (Cth) ss 25, 29, 30A, 31, 32, 169, 237, 225 Rights in Water and Irrigation Act 1914 (WA) ss 5C, 6, 17 Rights in Water and Irrigation Regulations 2000 (WA) reg 5, 7, 23 |
Cases: | FMG Pilbara Pty Ltd v Yinjibarndi Aboriginal Corporation (2014) 227 FCR 182; FCA 1335 Little v Western Australia [2001] FCA 1706 Re Nyungah People (1996) 132 FLR 54; [1996] NNTTA 18 Ronald Crowe and Others v Western Australia [2008] NNTTA 71 Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 Tullock v Western Australia [2011] NNTTA 22 Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 Western Australia v Ward (1996) 70 FCR 265; [1996] FCA 993 Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara and Another [2014] NNTTA 8 |
| Representative of the native title party: | Jeremy Brown, Yamatji Marlpa Aboriginal Corporation |
| Representative of the grantee party: | Stuart Cameron, Fortescue Metals Group Nerolie Nikolic, Fortescue Metals Group |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitor’s Office |
REASONS FOR DETERMINATION
INTRODUCTION
Pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”), Ngarlawangga Aboriginal Corporation RNTBC (the “Native Title Party”) holds native title rights and interests in land and waters on trust for the Ngarlawangga People. The land and waters in question lie west-south-west of Newman and south-east of Tom Price in Western Australia. In these reasons I refer to the traditional owners as the “Ngarlawangga People”. In more general references to one or more Ngarlawangga persons, I use the lower case “p”.
On 5 February 2018 FMG Pilbara Pty Ltd (the “Proposed Grantee”) applied to the Department of Mines, Industry Regulation and Safety of the Government of Western Australia (the “State”) for the grant of an exploration licence pursuant to the Mining Act 1978 (WA) (the “Mining Act”). On 22 August 2018 the State gave notice (the “notice”), pursuant to s 29(1) of the Native Title Act, of its intention to grant (the “proposed grant”) exploration licence E52/3615 (the “proposed tenement”) to the Proposed Grantee. The proposed grant is a “future act” of the kind described in s 25 of the Native Title Act.
The area over which the Native Title Party holds native title (the “determination area”) comprises 6,098.322 kms2. The proposed tenement overlaps the determination area to the extent of 255.53 kms2. The boundary of the determination area passes through the eastern part of the proposed tenement. To the east and north-east of that boundary is an adjoining determination area held by the Karlka Nyiyaparli Aboriginal Corporation. The proposed tenement overlaps that determination area to the extent of 8.744 kms2. The proposed tenement is divided by Spearhole Creek, which passes from its extreme western boundary to its south-eastern boundary.
EXPEDITED PROCEDURE STATEMENT
The notice contains a statement pursuant to s 29(7) of the Native Title Act (the “statement”). That subsection provides as follows:
Acts attracting the expedited procedure
(7) The notices under this section may include a statement that the Government party
considers the act is an act attracting the expedited procedure.
Section 237 provides:
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.
For present purposes, only ss 237(a) and 237(b) are relevant.
Section 32 of the Native Title Act provides:
Expedited procedure
(1)This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).
Act may be done if no objection
(2)If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.
Kinds of objection
(3)A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.
Objections against inclusion of statement
(4)If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
Act not attracting expedited procedure
(5)If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.
Withdrawal of objection
(6)At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.
Withdrawal of statement about expedited procedure
(7)At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.
I am presently performing the function described in s 32(4).
PROPOSED TENEMENT
Five previous exploration licences have covered part or all of the proposed tenement. Two of them overlapped the proposed tenement to the extent of more than 20%. At one stage, two tenements, together, covered the whole of the proposed tenement. There are no Aboriginal communities within the proposed tenement. Nor is there any Registered Aboriginal Site (“RAS”) or Other Heritage Place (“OHP”) registered under the Aboriginal Heritage Act 1972 (WA) (the “AH Act”).
PROPOSED GRANT
The State has provided notice of its intention to impose various endorsements and conditions upon the proposed grant, as set out in a document headed “Draft Tenement Endorsement and Conditions Extract”. At a later stage I shall discuss those endorsements and conditions. The State has also indicated that it will impose the following condition on the proposed grant:
In respect of the area covered by the licence, the [Proposed Grantee] if so requested in writing by the [Native Title Party], such request being sent by pre-paid post to reach the [Proposed Grantee’s] or agent’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 [Native Title Party]
any Regional Standard Heritage Agreement (“RSHA”) nominated by the [Native Title Party], the RSHA being any of the agreements described as the Yamatji Marlpa Aboriginal Corporation (Geraldton and Pilbara) Agreement, the Goldfields Land and Sea Council Agreement, and the South-West Land and Sea Council Agreement on the website of the Department administering the Mining Act 1978 (WA) under the heading “Regional Standard Heritage Agreement.”
I shall discuss the Regional Standard Heritage Agreements (the “RSHAs”) at a later stage.
The proposed grant will be for a period of five years. The rights conferred by the exploration licence appear at s 66 of the Mining Act as follows:
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 be subject –
(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.
In the first year of the 5 year term, the Proposed Grantee intends to perform the
following work:
literature search and analysis of publicly available historical data;
direct, or public domain acquisition of aerial photography, satellite imagery, aeromagnetic or geophysical data sets to be ortho-rectified and imported into data management system;
geological mapping and rock chip sampling;
interpretation of historical, geophysical and geochemical data sets and target selection; administration, management and supervision; and
gridding, access and Aboriginal heritage clearance.
These activities are estimated to cost, in total, $88,000. In the second year it is said that the work may include:
reverse circulation and/or diamond drilling;
interpretation, resource estimation and technical reporting; and metallurgical testing.
I understand that the term “reverse circulation” describes a particular form of drilling.
There is no evidence as to the work which may be performed in the subsequent years of the proposed grant. However s 63 of the Mining Act prohibits the use of “ground disturbing equipment”, unless the licensee has lodged an appropriate programme of works, which programme has been approved by the Minister. Proposed condition 3 contains a similar limitation upon the use of such equipment.
I note that s 66(c) of the Mining Act, and reg 20 of the Mining Regulations 1981 (the “regulations”) authorize the taking of up to 1000 tonnes of earth, soil, rock, stone, fluid or mineral-bearing substances. Such extraction would, I infer, probably involve ground-breaking equipment. Hence the Proposed Grantee could only take that material if it had received approval to use such equipment.
NOTICE AND NEGOTIATION
It is common ground that by virtue of s 25 of the Native Title Act, the proposed grant is a future act to which Subdivision P of Division 3 of Part 2 of that Act applies. If a s 29 notice does not include a statement pursuant to s 29(7), s 31 requires that “all negotiation
parties” negotiate in good faith with a view to obtaining the agreement of interested native title parties to the doing of “the act”, in this case, the grant of the proposed tenement. Pursuant to s 30A, the negotiation parties, for present purposes, are the State, the Native Title Party and the Proposed Grantee. If a s 29(7) statement is included in the notice, and if the relevant Native Title Party does not file an objection pursuant to s 32(3) of the Native Title Act, the State may do the future act (that is, grant the proposed tenement) without negotiation. If, as in this case, such an objection is lodged, s 32(4) requires that the National Native Title Tribunal (the “Tribunal”) determine whether the proposed future act attracts the expedited procedure. On 21 November 2018 the Native Title Party lodged with the Tribunal, an objection (the “objection”) against the inclusion of the statement in the notice. I must now determine that objection, as required by s 32(4).
NATIVE TITLE RIGHTS AND INTERESTS
The presently relevant native title rights and interests held by the Ngarlawangga People are described in the relevant determination (the “determination”) as:
…
The nature and extent of native title rights and interests and exclusiveness of native title (s 225(b) and (e) Native Title Act)
(4)Subject to paras 2, 5, 6 and 9, the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following non-exclusive rights on the Ngarlawangga People, including the right to conduct activities necessary to give effect to them:
a)the right to enter and remain on the land, camp, erect temporary shelters and travel over and visit any part of the land and waters of the Determination Area;
b)the right to hunt, fish, gather, take and use the traditional resources of the land;
c)the right to take and use water;
d)the right to engage in cultural activities on the Determination Area, including:
i. visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and
ii. conducting ceremony and ritual and the transmission of cultural knowledge; and
e)the right to be accompanied on to the Determination Area by those people who, though not Ngarlawangga People and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are:
i.the non-Ngarlawangga spouses, parents or children of the Ngarlawangga People; or
ii.people entering in connection with, and subject to, traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area.
Qualifications on the native title rights and interests
(5)The native title rights and interests set out in para 4:
a)are subject to and exercisable in accordance with:
i.the laws of the State and the Commonwealth, including the common law; and
ii.the traditional laws and customs of the Ngarlawangga People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and
b)do not confer any rights in relation to:
i.minerals as defined in the Mining Act 1904 (WA) (repealed) and in the
Mining Act 1978 (WA);
ii.petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the
Petroleum and Geothermal Energy Resources Act 1967 (WA);
iii.geothermal energy resources and geothermal energy as defined in the
Petroleum and Geothermal Energy Resources Act 1967 (WA); or
iv.water captured by the holders of the Other Interests pursuant to those Other Interests.
(6)The native title rights and interests set out in para 4 do not confer:
a)possession, occupation, use and enjoyment on the Ngarlawangga People to the exclusion of all others; or
b)a right to control the access to, or use of, the land and waters of the Determination Area or its resources.
TERMS OF THE OBJECTION
In its objection, the Native Title Party asserts that:
The [Native Title Party’s] ability to complete this statement has been limited because the s 29 notice does not clearly identify the area of the proposed act. The maps provided with the notice include illegible markings, do not contain a key and lack sufficient topographic details to enable the [Native Title Party] to ascertain with precision the nature of the area in question, other than its general location. However, this comment is made by way of explanation and clarification only and is not intended to form part of the objection.
The [Native Title Party] [has] connections to all the country identified on the map which includes E52/3615. These connections include those maintained through hunting game,
collecting bush tucker and medicines, as well as visiting and looking after sites. Exploration activity will scare away bush animals especially when people are drilling and using bulldozers. Drilling activity and costeaning will also destroy plants the [Native Title Party’s] use for bush tucker and medicines and may also destroy sites. The grant of E52/3615 will significantly impact on the [Native Title Party’s] community conduct and enjoyment of these activities.
Under the [Native Title Party’s] customary law and beliefs people who are not traditional owners need to ask permission to go out on the country affected by E52/3615. Permission and information about this country is held by elders many of whom cannot read, write or interpret maps. The elders can only properly provide permission or further information when they know the intentions of the party and the exact area that will be affected. The grant of E52/3615 without speaking to elders is against the customary law and beliefs of the [Native Title Party].
There are artefact scatters in the area of E52/3615 left by the [Native Title Party’s] ancestors. These artefacts are not recorded sites and can only be found by close examination of the area in question. These sites are particularly significant because they record the historic activities and movements of the [Native Title Party’s] ancestors. The sites are not easily identifiable and require specialist expertise to identify them. The action of driving across country to get to the area of proposed exploration activity as well as the exploration activity itself is likely to destroy these artefact scatters unless they are properly identified, recorded and protected.
The [Native Title Party] believe[s] that the grant of E52/3615 over the area of ground applied for will create rights, the exercise of which will involve major disturbance to the land. This includes the right to drill holes and excavate 1000 tonnes of material and other rights as defined in the Mining Act 1978 (WA). The [Native Title Party] believe[s] the extraction of 1000 tonnes of material anywhere within E52/3615 will create a major disturbance to the land. Specifically the land in question is as delineated in the map provided from the State in its original notice.
[Original emphasis removed]
The term “costeaning” refers to a process by which a pit is sunk through surface soil to underlying rock, in order to determine the direction or width of a lode or seam. See the New Shorter Oxford English Dictionary. The reference to “major disturbance” suggests reliance on s 237(c) of the Native Title Act. However, the Native Title Party no longer relies on that provision. As to the asserted requirement that non-traditional owners not enter country within the determination area without consent, I note that, pursuant to the determination, the Ngarlawangga People hold native title over the determination area. However, the Federal Court held that they do not hold the right to exclusive possession
of that area, or the right to exclude others from that area. The parties have made no submissions concerning this limitation upon the Native Title Party’s rights and interests. However I shall delay consideration of the relevance of such limitation until later in these reasons.
PROPOSED TENEMENT E52/3615 AND APPLICATION E52/3620
The proposed tenement is identified by the State as “E52/3615”. The Proposed Grantee had applied for a second, discrete tenement, lying about 2 kms to the south of the proposed tenement. The State gave notice of its intention to grant that tenement (“application E52/3620”), and the Native Title Party filed an objection. The Proposed Grantee has withdrawn application E52/3620. However the Native Title Party’s evidence and submissions frequently refer to the “tenements”. I take that term to include the proposed tenement and application E52/3620.
MR HUBERT’S EVIDENCE
Mr Damien Hubert, a Ngarlawangga man, has provided evidence as to the nature of the Native Title Party’s concerns. Some of his evidence is gender-sensitive. In his open statement, Mr Hubert gives evidence of his upbringing. His family related to him information concerning places, songs and lore. Many places, which are important to Ngarlawangga people, are also important to Martu people, another Aboriginal group in the area. Their stories and songs are connected.
In May 2019, Mr Hubert, with other men, went on a field trip, visiting and recording various sites and places, including Giles Point, an area just to the north of the proposed tenement. They also visited sites to the south of Giles Point. They went “very close” to the “tenements”. It is said that, “our stories go through and around the tenements”. Such stories are connected to sites and significant places, “throughout the landscape”. Spearhole Creek is an important story place for men. It is a place where women and children must be careful. Spearhole Creek runs from beyond the western boundary of the proposed tenement, east-south-east to the south-eastern boundary, and beyond.
About 10 years ago Mr Hubert identified a “Yinda” (a permanent pool of water) along Spearhole Creek. The rest of the county was then dry. There was a rock python in the vicinity. The waterhole would have been about 5 m deep. There were artefacts, “all
round the place”. There is no further evidence concerning such artefacts. Mr Hubert expects that there are other Yindas along Spearhole Creek.
Mr Hubert believes that the Thurru, (or water snake) lives in the Yindas. That spirit makes sure that the water never runs dry. Water is most important to the Ngarlawangga people. If Spearhole Creek is disturbed “in any way”, the snake will go somewhere else and take the water with him. This is true of other sites in Ngarlawangga country. If they are disturbed or damaged, it affects the Ngarlawangga’s ability to go to those places and get food and “things”. Without food and water, Ngarlawangga people cannot go on country to hunt, camp or collect bush medicines. The country is dry for much of the year, and so the Yindas are especially sacred. The Ngarlawangga people must care for them. There is, however, no evidence of regular visits by Ngarlawangga people to these sites, or to the proposed tenement generally. As I understand this evidence, it reflects a spiritual belief. However, the consequence of interference is loss of access to water from Spearhole Creek. There is no evidence as to the frequency with which Ngarlawangga people visit this particular area.
At about the same time as Mr Hubert identified the Yinda, he took part in a heritage survey by helicopter. On that survey he saw a white ochre quarry near Spearhole Creek, and within the proposed tenement. On another heritage survey in the area of the proposed tenement, he found some yellow ochre. He took the ochre home and still has it. Ochre is important to Ngarlawangga people as it is used for lore business and corroborees.
On that survey, Mr Hubert also discovered a quandong tree. The quandong berries are an important source of food for emus. It is not clear whether that tree was within the proposed tenement. Mr Hubert also refers to quandong trees in the area described as “Giles Mini”, to the north of the proposed tenement and within Giles Point. He asserts that there are other trees within the proposed tenement. The quandong tree is a, “really special tree and hard to find”. He considers that the Ngarlawangga must protect them.
At paras 21 to 28, Mr Hubert asserts that:
·the Ngarlawangga people are responsible for protecting a storyline “in Spearhole Creek”;
·if the storyline were cut by a mine, it would affect the Ngarlawangga; they might die, fall ill, or be crippled;
·the Yindas “and sites” are sacred; there cannot be “exploration” near them;
·nobody may go to “these areas” without having knowledgeable Ngarlawangga people with them to tell them where they can and cannot go; if they go without such persons, they could get sick;
·a member of another Aboriginal group has recently sought permission to go to Prairie Downs to cut timber, it being important that people show respect to Ngarlawangga people before going on to their country.
·he (Mr Hubert) is offended when people go on to Ngarlawangga country without any permission; mining companies must ask permission before building roads; this requirement is about respect and safety; visitors may get sick; the Ngarlawangga would fear that they might be blamed, and that people might not continue to go to Ngarlawangga country;
·if people go to Spearhole Creek without permission, they can get sick; it is a powerful place, with spirits and other important things; any disturbance would be really bad;
·he (Mr Hubert) does not want exploration in the area around Spearhole Creek, “in tenement E52/3615”; a songline through there is very important to Ngarlawangga people and their neighbours; they want to protect the song; if it is not protected, many people could lose their lives or become spiritually sick; elders from other groups who share the song would get angry;
·Mr Hubert has “not seen it” but feels that if they do not look after country, senior elders from around the Pilbara would question their responsibility for doing so and say that they could no longer speak for that country; and
·If the storyline is damaged, neighbouring Aboriginal groups, as well as the Ngarlawangga people will be damaged.
To assert “sacredness” is to assert a conclusion without reference to beliefs underlying
it. It may not always be easy to describe those beliefs. Mr Hubert has made a reasonable effort in describing the “sacredness” of the Yindas and the Thurru. However his attempts to attach sacred status to other unidentified sites without any such explanation cannot be accepted at face value. See, in particular, para 22 of his open Statement. It is also important to note that the word “sacred” is not used in s 237.
Mr Hubert’s reference to the “Yindas and sites” equates the sacredness of the Yindas with that of other, unidentified sites. It is difficult to accept that unidentified sites can be of particular significance for the purposes of s 237(b). Hence one must question the status of the Yindas as being of special significance, even if they are sacred. Further, an assertion that a particular area or site is “sacred” does not necessarily mean that it cannot be visited, or that permission is needed in order to access such area or site. It must be shown that it is, according to relevant traditions, inconsistent with the asserted sacredness that there be such visits or access without permission. Finally, assertions that exploration cannot occur do not address the tests prescribed in ss 237(a) and 237(b).
There may be cases in which mere entrance upon a site will constitute interference for the purposes of s 237, but one would expect some explanation in support of such an assertion. The assertion that such sites are, “connected to one another and to the registered sites nearby, like Giles Mini”, is somewhat obscure, saying nothing about the meaning of the word “connected”. In some places in the evidence, it seems to be suggested that damage, or interference, at one location might result in damage, or interference at some other location, the locations being on the same songline or storyline. However there is no attempt to identify the routes taken by such storylines or songlines, or other evidence to explain this phenomenon.
Indeed, at no point does the evidence demonstrate the actual location of any songline or storyline, either within the proposed tenement or elsewhere in the determination area. I shall discuss this matter in more detail at a later stage.
It is worth observing that the maps show numerous RASs and OHPs lying outside of the proposed tenement, to the north, south, east and west of it. The sites nearest to the proposed tenement are in Giles Point and in a cluster to the west of it. No similar sites or places have been identified within the proposed tenement or within application E52/3620.
Concerning s 237(a), Mr Hubert lists the following kinds of bush tucker, bush medicines and other important things that the Ngarlawangga derive from the proposed tenement and application E52/3620. They are:
· ochre, used to paint bodies at lore time;
· fish which live in the Yindas, “really precious” because they live there year- round, even when most of the country is dry;
· hill kangaroo, the best type of kangaroo for eating, better than the big boomer kangaroo which is too tough to eat;
· emu, which is one of [Mr Hubert’s] favourite foods;
· goanna, called “bungarra”;
· quandong, which people can eat, but which the Ngarlawangga usually leave to the emu; and
· bush turkey, eaten by many.
Save for the ochre and the fish, Mr Hubert does not suggest that the proposed tenement is a particularly important source of any of these items. Mr Hubert asserts that both the proposed tenement and application E52/3620 are used for hunting and collecting, and that those activities are important parts of Ngarlawangga life. The places are important for that reason. Again, Mr Hubert does not distinguish between the two tenements. Mr Hubert asserts that it is important to him that the “tenements” be protected so that the Ngarlawangga, “can show young people how to hunt and cook in our own country”. He says that:
Cooking is the main one for us. How to cook the kangaroo, the emu and the bush turkey. It’s also really good to be able to show young people the different plants and things on our country because they are different to what you get where we live.
I infer that the Native Title Party asserts that the collection of these items, the cooking of them and teaching young people about the collection and cooking of them are community or social activities for the purposes of s 237(a).
Mr Hubert observes that, “[so] many Ngarlawangga people live away from country now that it is really important that we can go back to these areas and do those things on our country”. He observes that, “[w]e have lost a lot of our old men and women,” and says that the responsibility to protect Ngarlawangga country has fallen on himself and others.
He says that it is important that the “tenements” be protected. There are stories and songs associated with them, which stories and songs are part of “our culture and our lore”. He says that if they are lost, it would be hard to teach the next generation of Ngarlawangga men about lore and country. Two stories are clearly identified, only one of which seems to relate to the proposed tenement. Again, Mr Hubert gives little information concerning the frequency with which the Ngarlawangga people visit the proposed tenement to perform such functions.
In Annexure A to these reasons, I deal with Mr Hubert’s gender-restricted evidence. I should say that as far as is practicable, I shall refrain from referring in detail to gender- restricted evidence. I shall, however, take such evidence into account in reaching my decision. I take this approach in the hope that it will avoid any inadvertent offence to Ngarlawangga people.
MR HERRMANN’S EVIDENCE
Mr Herrmann is an anthropologist who has, since 2019, been “assigned” to the “Ngarlawangga claim”. He has provided two statements and a report dated November 2019. One of his statements is gender-restricted. Much of his evidence repeats that of Mr Hubert. He says that he has worked closely with Ngarlawangga people and with the Martu People. The two groups have shared cultural practices and mythologies.
Mr Hubert is regarded as a senior spokesperson for the Ngarlawangga “claim” and has a traditional connection to Ngarlawangga country. Through cultural mapping, site visits and field trips Mr Herrmann has developed an understanding of the cultural landscape of Ngarlawangga country, and the people’s relationship to it. His opinions are based upon interviews with Mr Hubert and one Bruce Booth, a Martu knowledge-holder who is familiar with the area. Mr Herrmann has also had regard to anthropological and ethno- historical research. He says that much of the information, which he has gathered and reviewed, is of a gender-restricted nature.
Mr Herrmann notes that Spearhole Creek is a significant Aboriginal site. It runs through the entirety of the proposed tenement. He asserts that in the State’s Aboriginal Heritage Enquiries System, Spearhole Creek is shown as an OHP under the AH Act. It is identified as “DPLH ID 11812”. Available maps show that this area is located outside of both the determination area and the proposed tenement. At its nearest point, it is
about 12 kms east-south-east of that tenement. Mr Herrmann asserts, apparently on the basis of information from Mr Hubert and Mr Booth, that regional senior elders consider that the entirety of the creek should be a registered site. He suggests that the location of DPLH ID 11812 may be inaccurate. I shall return to this assertion.
Mr Herrmann repeats much of the evidence given by Mr Hubert in connection with the Yindas and the mythical water snake or Thurru. He says that Mr Hubert informed him that disturbance of a Yinda may cause the Thurru to move away, and the water to “dry up”. Mr Herrmann considers that the Yindas are almost spiritual in nature because of the importance of permanent water sources. They are often thought to be the homes of spiritual entities and/or the souls of people not yet born.
Mr Herrmann identifies two RASs “in and around” Giles Point: “Giles Mini” and “Giles Mini 15”, both being significant ceremonial sites. Giles Mini 15 and Giles Mini are, respectively, about 3 kms and 7 kms north of the northern boundary of the proposed tenement. Giles Point is, itself, an RAS.
Mr Herrmann understands that in May 2019, a field trip was conducted in the area of the “tenements”, the result of which was, “development of a proposed heritage exclusion zone which intersects [the proposed tenement]”. According to Mr Hubert, the development of the proposed zone was based on the cultural significance of the landscape, and the number of highly significant sites in the area. However the only sites within the proposed tenement, apart from Spearhole Creek, the Yindas, and the Thurru are the ochre sources, the quandong trees and, perhaps, unlocated songlines. Mr Herrmann understands that Ngarlawangga people visit the area around the “tenements” to learn about the sites and their importance to Ngarlawangga law and culture, and to access natural resources. As I have said, there is little or no direct evidence of such activity or its frequency.
Mr Herrmann opines that the conduct of exploration activities in the “tenements” is likely to interfere significantly with the Ngarlawangga people’s native title rights and interests. However he does not identify the nature of the interference. Such a generalized statement is of little assistance.
Mr Herrmann says that the Ngarlawangga people assert that it is their right and responsibility to protect sites and significant places on Ngarlawangga country. He also
says that Ngarlawangga people assert that under traditional laws and customs, “outsiders” must seek permission before entering Ngarlawangga country. One reason for such requirement is to ensure that people do not go to dangerous places or disturb significant sites. However, as I have observed, the Ngarlawangga do not have the right of exclusive possession of the determination area, or the right to exclude others from that area.
Mr Herrmann repeats Mr Hubert’s assertion that Ngarlawangga people fear being punished with sickness or death if there is damage or disturbance to significant sites and mythologies in the area. He says that this fear is a constant cause of social and communal anxiety, particularly amongst older Ngarlawangga people who have special responsibility for caring for the area. It is said that they have the responsibility to protect, “the integrity of the area”, and associated sites, not only for themselves, but because they form an important part of the law and religion of other Pilbara Aboriginal people. Failure to protect the songs and sites in the area around the “tenements” is likely to lead to regional sanctions, which sanctions could result in social violence, spiritual sickness and/or loss of cultural standing within the wider Pilbara region.
Mr Herrmann says that according to Ngarlawangga people, water is particularly important to their law and custom, and is often referred to as “life” and as “the basis of all life on Ngarlawangga country”. I accept that evidence. Ngarlawangga people exhibit deep anxiety about threats to Yindas and Thurru spirits which could lead to the departure of the Thurru and the water which they provide. There is also concern that exploration activities are likely to affect the Ngarlawangga people’s access to the area for traditional purposes, such as resource-gathering and on-country learning. Given the absence of any right to exclusive possession, or to exclude others from entering the area, it is difficult to see how interaction with others can be avoided.
I summarize Mr Herrmann’s gender-restricted statement at Annexure B. It adds little to Mr Hubert’s evidence.
MR HERRMANN’S REPORT
Appendix 1 to Mr Herrmann’s report is gender-restricted. The report is not otherwise gender-restricted. I include a summary of Appendix 1 as Annexure C to these reasons.
In the report, dated November 2019, Mr Herrmann asserts, at para 9, “that there are a number of significant sites in and around [the tenements], [which sites] are likely to be impacted by the granting of these tenements.” He asserts that the proposed grant is likely to interfere with the social and community activities of Ngarlawangga people, “in line with their legally recognized rights and interests in the area.” These broad assertions are of little value for present purposes. Again, no distinction is drawn between application E52/3620 and the proposed tenement. Mr Herrmann says nothing about the way in which the Ngarlawangga people’s, “legally recognised rights and interests” are limited by the absence of any right to exclusive possession. Nor does he identify the nature of any apprehended interference.
Mr Herrmann observes that a total of four separate surveys and consultations have been recorded over the proposed tenement. There has been no survey of application E52/3620. There are records of 22 surveys which have occurred within a ten kilometre radius of the “two tenements”. It is not clear whether the 22 surveys include the four surveys of the proposed tenement. The report provides a summary of information concerning RASs and OHPs which intersect with, or are near to the proposed tenement and/or application E52/3620. It is said that the sites were, “selected because of the accessible nature of information relating to them”, and that they should not be taken as, “the only places of extreme significance throughout and around the tenements.” This qualification is a little difficult to understand and probably adds nothing to the case. Further, save for Spearhole Creek, no basis is advanced for the assertion that these sites are of “extreme significance”.
The sites appear in tables on pages 7-11 of the report. In Table 1 Mr Herrmann includes DPLH ID 11812 as a place of significance within the proposed tenement. As I have said, the maps show it lying about 12 kms to the south-east of the proposed tenement. Mr Herrmann suggests that the location of this site is, “recorded as unreliable”, and that although it appears to be outside of the proposed tenement, it is “directly related to [the] same site Hubert describes in his statements”. It is difficult to understand this assertion. Whatever it means, I see no basis for inferring that DPLH ID 11812 should be treated as being within the proposed tenement or vice versa. It may be that Mr Herrmann means only that the sites are, in some way, related. However any such relationship is not explained.
As to the sites listed in Table 2 of the report, I infer that none of them is located within the proposed tenement, or application E52/3620. The heading refers to, “Sites directly surrounding tenements E52/3615 and E52/3620.” A further heading indicates that the places of significance listed in Table 2 are within 10 kms of the proposed tenement and application E52/3620. In effect the tables show little more than that there is a spread of sites, some of which are within the Giles Point area, and others which are more widely dispersed.
Under the heading “Cultural Significance of the Country Where Tenements E52/3615 and E52/3620 are Located”, there is a discussion which generally does not distinguish between the two “tenements”. There is further discussion concerning Spearhole Creek and associated sites and the Dreamings, but little else.
Mr Herrmann notes that the north of the determination area is characterised by “extensive creek systems that act as tributaries to the upper Fortescue River and the hill country of the Opthalmia Range”. This includes “the extremely significant Spearhole Creek, Giles Point and Giles Point Mini cultural heritage areas”, and there are also, “various other small water sources and stone arrangements in the area which are of importance to the Ngarlawangga [people].” The following passage at para 19, describing “Dreaming tracks”, is useful. It asserts that:
The great mythic beings of the Dreaming established the foundations of human socio- cultural existence. They also attended to that environment, and in many cases were responsible for forming it. They created human and other natural species and set them down, as it were, in specific stretches of country. They are associated with territories and with mythic tracks, and in many cases were themselves transformed into sites where their spirits remain; or they left sites which commemorated their wanderings – in which case, part of their spiritual substance remains there.1
Paragraphs 20 and 22 refer to the “Tjukurrpa” and the “Dreaming”, stating:
20 Tjukurrpa often refers generally to the Aboriginal concept of ‘The Dreaming’, but also refers to a specific body of lore that imparts cultural knowledge (Tonkinson 1991 & 1974).
…
1 R Berndt and C Berndt, The World of the First Australians: Aboriginal Traditional Life: Past and Present
(Aboriginal Studies Press, 5th Ed, 1991).
22 Hubert (2019a, para 12) highlights this concept when he states:
A lot of the important places on Ngarlawangga country are important to those Martu people too. Our stories and our songs are connected.
… Our stories go through and around the tenements. Those stories are connected to sites and significant places throughout the landscape. It’s all connected (Hubert 2019a, para 13).
The terms “Tjukurrpa”, “Dreaming”, “song”, “story”, “songline” and “storyline” are associated and seem sometimes to be used interchangeably.
At para 27, Mr Herrmann claims to have identified from satellite imagery, along the length of Spearhole Creek, and within the proposed tenement, at least three waterholes matching Mr Hubert’s description of the Yinda. At paras 29 and 30 Mr Herrmann asserts:
29The existence of these spiritual beings and places known as Yinda are a universal concept in the Pilbara and in all cases are governed by significant laws and customs related to protecting them and ensuring no disturbance occurs to the entities that dwell within them (Goodes 2009; Mark & Turk 2003; Yu 2000). Hubert (2019a, para 22) adds a further point in relation to the significance of Yinda and the potential impacts from exploration on the cultural landscape:
Exploration can’t happen near the Yintas (sic) and sites, because they’re sacred areas. These sites are registered in our mind, even if they’re not registered under the [AH Act]. It is important to us that they’re protected, because they are all connected to one another and to the registered sites nearby, like Giles Mini.
30Barber and Jackson (2011:33) and Jackson (2005) note the centrality of water in the Aboriginal conceptualisation, interconnecting places associated with material and economic notions of sociality, sacredness, identity and life.
The existence of waterholes, other than that visited by Mr Hubert, is not entirely helpful from the Native Title Party’s point of view. If there were any regular visits by Ngarlawangga people to the proposed tenement, one might have expected the waterholes to be well known, given their asserted importance. Further, in the absence of evidence concerning visits to the sites, it is difficult to accept that such waterholes are even known to the Ngarlawangga people, let alone treated as being of great spiritual importance. Even Mr Hubert’s location of one such Yinda was apparently accidental, and not related to any teaching about country or spiritual significance.
Under the heading “Cultural Landscape Approaches”, Mr Herrmann refers to an approach to anthropological study which involves addressing the “cultural landscape” rather than individual sites. Mr Herrmann quotes the following passage:
A cultural landscape may incorporate a larger area than a local place, for example the area of a cultural landscape often extends beyond the visual field (or beyond the horizon line). Cultural landscapes may consist of one large-scale place, or on the other hand they may consist of a hierarchy of place types (multiple places or complexes of places) … 2
Interesting as this may be, it seems not to be particularly relevant. For present purposes, the term “landscape” probably means, “(a) tract or region of land with its characteristic topographical features, especially as shaped or modified by (usually natural) processes and agents”. See The New Shorter Oxford English Dictionary. Section 237(a) focusses upon community or social activities, not landscape. Section 237(b) focusses on areas and sites of particular significance, not any wider landscape, of which such areas and sites may form part. It is possible to imagine that in rare cases, an entire “landscape” might be described as an “area or a site”. However the evidence in this case does not support such an approach. It rather addresses areas or sites within a larger landscape.
I note Mr Herrmann’s conclusion that:
These anthropological and heritage concepts [relating to the cultural landscape] illustrate that for Ngarlawangga People country is not just places populated by discrete physical sites and things but is laden with interconnecting meanings and spiritual and religious essence. To understand the significance of Aboriginal land and the impact of disturbances to it, the primacy should lie with the understanding of the traditional people who are intrinsically and since ‘time immemorial’ connected to it.
These propositions may well be valid, and it may be that Mr Hubert was trying to explain the composition of, “interconnecting meanings and spiritual and religious essence”. Nonetheless, their application to the present case must be demonstrated, not simply asserted or implied. Section 237 focuses on community or social activities, and areas or sites of particular significance according to the native title holders traditions. It is not possible to depart from the requirements of those provisions.
Under the heading, “Community and Social Activities within Tenements E52/3615 and
2 P Memmott and S Long, ‘Place Theory and Place Maintenance in Indigenous Australia’ (2002) 20(1) Urban Police and Research 39, 44.
E52/3620”, Mr Herrmann discusses the gathering of resources, learning about country, maintenance of culture, ritual activity and obligations to care for country and “outsiders”. With regard to those matters, Mr Herrmann reiterates much of Mr Hubert’s evidence. I have considered those matters and need not add anything to my previous comments.
APPENDIX 1
As I have said, this document forms part of Mr Herrmann’s report. Its contents are gender-restricted. It describes, in some detail, two Dreamings. The evidence suggests that one Dreaming (the “Southern Dreaming”) relates primarily to two sites which are within 10 kms of application E52/3620. It has no apparent relationship to the proposed tenement. The Southern Dreaming is also discussed in some detail in Mr Hubert’s gender-restricted statement. The second Dreaming (the “Spearhole Creek Dreaming”) concerns Spearhole Creek. It has the songline referred to at [32] above. It is also discussed in detail in Mr Hubert’s gender-restricted evidence. I have renamed the Dreamings so as not to disclose more than is necessary concerning the gender-restricted information.
PROPOSED GRANTEE’S EVIDENCE
The Proposed Grantee relies upon an affidavit by Nerolie Nikolic who is employed by Fortescue Metals Group Ltd, of which company the Proposed Grantee is a subsidiary. Ms Nikolic deposes to the withdrawal of application E52/3620 on 21 January this year. Her affidavit relates only to the proposed tenement. Ms Nikolic states that any ground- disturbing work will occur only if activities in Year 1 identify significant “targets”, warranting further investigation.
Ms Nikolic describes the way in which the Proposed Grantee manages its responsibilities under the AH Act and its guidelines for management of Aboriginal cultural heritage. Within Western Australia over 2,400,000 hectares have been the subject of ethnographic Aboriginal heritage surveys commissioned by the Proposed Grantee. It has also commissioned over 236,000 hectares of archaeological Aboriginal heritage surveys. Over 5,900 Aboriginal places are currently recorded in its geographic information system as being located on its mining tenements. In those areas, the
Proposed Grantee has been granted in excess of 100 consents pursuant to s 18 of the
AH Act.
The Proposed Grantee has a comprehensive geographical information system which it uses to ensure that its heritage obligations are discharged. It routinely forwards signed RSHAs to Native Title Parties in relation to new exploration and prospecting licence applications, in order to comply with government policy. Such an agreement was signed by the Proposed Grantee and forwarded to the Native Title Party on 18 July 2018. The Proposed Grantee endorses the principles set out in guidelines published by the State, concerning consultation with Aboriginal people. The Proposed Grantee’s policy is not to undertake ground disturbing activities unless a heritage survey has been undertaken. I note that a heritage survey might discover a place or site to which s 5 of the AH Act applies, triggering the operation of ss 15 to 18 and other provisions of that Act.
HISTORY OF SECTION 237(a)
Before considering the Native Title Party’s contentions, I should say something concerning the history of s 237(a).
Prior to the Native Title Amendment Act 1998 (Cth) (the “1998 amendments”) s 237(a) provided that a future act would attract the expedited procedure if the act did not directly interfere with the community life of the native title holders of the relevant land or waters. Section 237(b) was in its present form. Prior to the amendment, Deputy President Seaman QC held, in Re Nyungah People (1996) 132 FLR 54 at 65, that:
… direct interference with community life in s 237(a) means ‘interference to a native title party’s community’s presence or activity on the land concerned by virtue of their native title rights and interests caused by some physical activity in the exercise of rights given by the grant of the right to mine.
However, a few days later, in Ward v Western Australia (1996) 69 FCR 208 at 223, Carr J said:
However, in my respectful opinion, there is no justification for requiring a direct interference with community life also to be a physical interference. Section 237(a), in stating the first requirement of an act attracting the expedited procedure, requires that the act does not directly interfere with the community life of the native title holders. It does not say that such direct interference has to be of a physical type. "Community life" might
include all sorts of spiritual and the like activities which might be directly interfered with without any physical interference. For example, the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds 10 kms away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed by the thought of such activities. The spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by "community life".
Following the 1998 amendments, in Silver v Northern Territory (2002) 169 FLR 1 at [58] Member Sosso concluded that notwithstanding the fact that Carr J had rejected the proposition that interference necessarily involved physical activity in the exercise of the rights to be conferred by the grant, his Honour had not rejected Deputy President Seaman’s conclusion, that such activities must occur in the exercise of rights given by such grant. Hence Member Sosso concluded that:
In short, the Tribunal's inquiry is not directed at ascertaining the likely interference with activities per se, but, rather, those activities which are a manifestation of claimed native title rights and interests.
In the present case, I am concerned with native title rights and interests which have been recognized by the Federal Court, not with “claimed” rights and interests. However Member Sosso’s proposition applies equally to rights and interests “as found” and “as claimed”. The question is whether the community or social activities in question must be “manifestations of (claimed or found) native title rights and interests”. Section 237(a) does not expressly require that the relevant activities be such “manifestations”. However the relevant activities must be those of the native title holders as a group.
Since the 1998 amendments, the Tribunal has proceeded on the basis that “… in a practical sense, the community or social activities encompassed by s 237(a) are essentially physical activities, even if they are carried out because of the spiritual relationship that a native title party has to the relevant land”. See Tullock v Western Australia [2011] NNTTA 22 at [75] per Deputy President Sumner. The Deputy President explains his view by reference to the history of the 1998 amendments at [64] to [77]. That view has been adopted by Deputy President Franklyn (a highly regarded former Judge of the Supreme Court of Western Australia) and by Member O’Dea, a highly regarded former Member of the Tribunal. I should say that Deputy President
Sumner, during his time on the Tribunal, added substantially to its accumulated understanding of the Native Title Act. I adopt Deputy President Sumner’s conclusion at
[75] that s 273(a) is concerned with, and limited to interference with the physical aspects of the carrying on of community and social activities of the native title holder. I note Deputy President Sumner’s apparent adoption of remarks by Senator Minchen in the Senate to the effect that, “mere assertions about spiritual connection”, should not limit the operation of the expedited procedure regime. I am content to adopt the above construction of s 237(a) as amended by the 1998 amendments.
INTERFERENCE
There are significant differences between the ways in which ss 237(a) and 237(b) operate. In s 237(a) the object of the relevant “direct” interference is the “community or social activities” of native title holders. Such an activity will have a discernible physical aspect. The community or society will be seen, or known to act in a particular way upon the basis of a shared understanding or belief. Such understanding or belief, by itself, would not be a community or social activity. However actions performed pursuant to such undertaking or belief may constitute community or social activities.
The approach to be taken by the Tribunal in considering s 237(a) has generally been guided by the observations of French J in Smith v Western Australia (2001) 108 FCR 442 at [26] and [27]. His Honour was there considering an appeal on a question of law pursuant to s 169 of the Native Title Act. It was submitted that the Tribunal had erred in law in its construction of the word “directly” in s 237(a), by accepting the submission that there would be direct interference only if, in the event that both parties chose to exercise their respective rights to the full, there would be direct interference with the activities of the native title party. At [26] and [27], his Honour held that the “criterion of direct interference … may be thought of more fruitfully as functional than as definitional”, meaning that such criterion was rather a direction to the Tribunal as to its approach, “to an essentially evaluative judgement”, rather than a “definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure”. The required process is not a “simple causal analysis” but rather an “evaluative judgement” as to whether the act is likely to be a proximate cause of the apprehended interference. Such interference must be substantial in its impact upon community or social activities. Not included are trivial social activities which are not
relevant to the carrying on of such activities. The evaluative exercise must be conducted in the relevant context, having regard to, “other factors which so affect community or social activities that the impact of the proposed future act is insubstantial”.
The most helpful authority concerning s 237(b) is the decision of McKerracher J in FMG Pilbara Pty Ltd v Yindjibarndi (2014) 227 FCR 182. At [75]-[76] his Honour said:
[75]Dealing with the more substantive point, in my view, the nature of interference referred to under s 237(a) of the NTA is not the same as the nature of interference referred to under s 237(b) of the NTA. The risks addressed in the two subsections are quite different. The range of community and social activities referred to in s 237(a) of the NTA is very broad, whereas s 237(b) of the NTA is directed only at areas or sites of ‘particular significance’. It follows that interference that may be trivial in the context of a social activity may be substantial in the context of a site of ‘particular significance’. That is why the focus in s 237(b) is to interference with ‘areas or sites of particular significance’ in accordance with the native title party’s traditions. It follows, of course, that interference that may appear trivial to a person not a member of a native title party for the purpose of s 237(b) of the NTA, may be substantial having regard to the native title party’s traditions. This … may require an evaluation of the extent of particular significance of the site.
[76]As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word ‘interference’ is qualified by the expression ‘… in accordance with [the native title party’s] traditions’. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
[Original emphasis]
Clearly, any interference must be with an area or site of particular significance, such significance being “in accordance with” the traditions of the native title holders. It is reasonable to infer that conduct will amount to interference with such areas or sites if the native title holders’ traditions so require. Such requirement may be express or implied. For example there may not be an express traditional prohibition upon disturbing or destroying a particular area or site, or a particular feature of such area or site, but it may be clear that physical disturbance or destruction would be inconsistent with the particular significance attaching to it, by virtue of relevant traditions.
The word “interfere” has its ordinary meaning, subject to the statutory context. One appropriate definition, given by the New Shorter Oxford Dictionary is, “of a person or persons: enter into something without right or invitation, or intending to hinder or obstruct.” Another appropriate definition appears in the Oxford English Dictionary (Online), namely, “of things, actions, etc: to come into collision or opposition, so as to affect the course of”. The Macquarie Dictionary (Online) suggests, “to strike against each other, or one against another, so as to hamper or hinder action; come into physical collision”.
In general usage, the word “interfere” has pejorative overtones, including absence of authority or invitation, adverse effect, or intention to harm or disadvantage. For present purposes, the conduct in question will be authorized by law but may, nonetheless, interfere with areas or sites of particular significance in accordance with the native title holders’ traditions.
NATIVE TITLE PARTY’S CONTENTIONS
In the course of identifying the Native Title Party’s contentions, I may make tentative observations as to whether I accept or reject particular aspects of such contentions. Those observations should be understood as being subject to my consideration of the contentions of other parties, and the Native Title Party’s reply to such contentions.
Section 237(a)
Concerning s 237(a) of the Native Title Act, the Native Title Party submits that the Tribunal is required to make a predictive assessment as to whether the grant of the proposed tenement (and activities undertaken in relation to that grant) are likely to interfere with the community or social activities of the traditional owners (in the sense of there being a real risk of interference). The future act must be the proximate cause of any such interference and must be substantial, not trivial in its likely impact on community or social activities. The intentions of the Proposed Grantee as to future conduct are relevant in assessing whether the activities are likely to interfere directly with the conduct of community or social activities. In its submissions, as in the evidence, the Native Title Party frequently refers collectively to the proposed tenement and application E52/3620 as the “tenements”.
The expression, “activities undertaken in relation to that grant”, may be misleading. The test prescribed by s 237(a) is whether the proposed grant is not likely to interfere. The expression, “in relation to” is frequently given a wide meaning. However, for present purposes, the focus is upon the “act” (in this case, the proposed grant), not conduct which is capable of being described as being “in relation to” such grant.
At paras 13 to 29, the Native Title Party identifies the relevant community and social activities by reference to rights and interests established by the Federal Court’s determination as follows:
·A right to hunt (including fish) and use resources within the “tenements”;
·A right “physically” to occupy the area of the “tenements”;
·A right to speak authoritatively about the “area” among other Aboriginal people in accordance with traditional laws and customs;
·A right to camp upon, or within the “area”;
·A right to visit, care for and maintain places of importance within the proposed tenement, and to protect them from physical harm; and
·A right to transmit cultural heritage of the native title claim group related to the “area” of the “Proposed Tenements”, including knowledge of significant sites and places.
Those “rights” have, to some extent, been derived from para 4 of the determination. However the native title rights and interests recognized in that paragraph are subject to paras 2, 5, 6 and 9. Paragraphs 4, 5 and 6 appear at [19] above. Paragraph 9 describes the relationship between the recognized native title rights and interests and “other interests”. Paragraph 2 provides that the Native Title Party holds the native title interests for the native title holders. I have previously referred to the limitations conferred by paras 5 and 6. The Native Title Party’s description of the Ngarlawangga People’s rights and interests pursuant to the determination makes no reference to such limitations and, in some cases, describes the “rights” in ways which go beyond the determination. An example is the claimed right to “physically occupy” the determination area, which claim seems to be based on para 4(a) of the determination. See paras 16 and 17 of the Native
Title Party’s contentions. The right conferred by para 4(a) of the determination is to enter and remain on the land, camp, erect temporary shelters, travel over, and visit any part of the determination area subject, of course, to paras 5, 6 and 9. There is no mention of occupation, which term, at common law may have a more expansive meaning.
As to paras 18 and 19 of the submissions, the determination says nothing about the right to speak for country, although there is, in this case, no reason to doubt the Ngarlawangga People’s right in that regard. However, under this heading, it is also asserted that the Ngarlawangga People have the right to require “outsiders” to seek their permission before accessing the area. This “right” seems to be inconsistent with the limitations imposed by the determination, concerning the right to exclude others from the determination area.
In paras 21 to 25, the Native Title Party discusses the right to care for, and maintain “places of importance” and “special places”. At paras 22 to 24, this right is said to extend to the exclusion of unauthorized entry. Again, such a right appears to be inconsistent with the limitation imposed by paras 6(a) and 6(b) of the determination.
It is curious that the Native Title Party should have identified its community or social activities by reference to the rights and interests as found by the Federal Court, without reference to the limitations imposed upon such rights and interests.
Paragraphs 10 to 29 of the Native Title Party’s submissions, on their face, concern s 237(a), not s 237(b). However, at paras 21 to 29, the Native Title Party seems to conflate cultural rights and obligations with community or social activities. I have no difficulty with the proposition that a right may be exercised, or an obligation met in ways which constitute community or social activities. However a right or obligation is not, per se, the carrying out of community or social activities. In the present case, there has been little attempt to identify the incidents of any exercise of asserted rights, or discharge of asserted obligations, which incidents might comprise or demonstrate community or social activities. In the absence of evidence as to such incidents, it is difficult, if not impossible to determine whether the proposed grant will interfere with such activities.
The Native Title Party seems to assert that prevention of access by others to the determination area, or the proposed tenement may, itself, be a community or social
activity. I accept that a system for preventing unauthorized access may be an activity for the purposes of s 237(a). However, there may be a preliminary question as to whether protection pursuant to s 237(a) extends to community or social activities which involve conduct which the native title holders cannot lawfully perform. I also observe that the Native Title Party has not identified the activities in which it engages in seeking to control such access, so that it is difficult, if not impossible, to determine whether there may be any interference with such activities.
I should say something about Mr Hubert’s feelings of concern and offence, dealt with in paras 21 and 25 of his open affidavit. Such feelings are not, of themselves, community or social activities, although they may demonstrate the effect, upon him, of interference with such activities.
At paras 26 to 29, the Native Title Party submits that the transmission of cultural heritage and obligations connected with such transmission may be a community or social activity. That may be so. However, in the present case, the Native Title Party has said nothing about the incidents of such activity, so that it is, again, impossible to identify any way in which the proposed exploration activity may interfere with it.
At para 32, concerning interference for the purposes of s 237(a), the Native Title Party asserts that:
(i)the carrying out of exploration activities without the permission of traditional owners will cause concern to the members of Ngarlawangga;
(ii)the carrying out of exploration activities is likely to impact Ngarlawangga’s ability to enjoy the area and visit the area;
(iii)the carrying out of the proposed exploration activities will directly interfere with Ngarlawangga’s right to care for the area and protect it from physical harm.
As I have said, causing concern does not, of itself, constitute interference with a community or social activity, although such concern may be evidence of interference. Further, if such concern leads to the modification or abandonment of the relevant activity, it might be said that the relevant conduct has caused interference. There may, however, be questions as to whether such interference is “direct”. That question does not arise in this case, as there is no suggestion of any such modification or abandonment. Nor is there evidence that any concern is the result of possible interference with an
activity, rather than a view about the proposed conduct.
As to impact on the native title holders’ ability to enjoy or visit the proposed tenement, there is no demonstrated reason for concluding that the exploration activities would have any such effect.
As to the question of caring for country, protecting it from harm and speaking for it, there is no evidence as to the conduct involved in those functions, and so it is impossible to determine whether the proposed exploration activity would interfere with them. Similar comments apply to the transmission of cultural heritage. At a later stage, I should say a little more about protection of country.
Section 237(b)
As concerns s 237(b) the Native Title Party submits that in order to determine that the expedited procedure is not attracted, I must be satisfied that:
(i)there are areas or sites having particular significance in accordance with the Ngarlawangga people’s traditions; and
(ii)there is a real risk or chance of interference with such areas or sites.
To be clear, I should point out that the relevant interference must be “not unlikely” to occur.
The Native Title Party acknowledges that it must:
·identify sites of particular significance with some degree of specificity; and
·demonstrate the bases upon which such sites are said to be of particular significance.
These propositions are of some importance, given the very general nature of much of the Native Title Party’s evidence and contentions.
Although the case is not entirely clear, the Native Title Party seems to identify some, or all of the following areas or sites as being of particular significance:
·the proposed tenement as a whole;
·Spearhole Creek, including the Yindas, the Thurru and other spirits;
·Giles Point, including Giles Mini and Giles Mini 15;
·the Spearhole Creek Dreaming;
·the track taken by the Spearhole Creek Dreaming and its songline;
·application E52/3620, and two features located within 10 kms of that area, which features are associated with the Southern Dreaming;
·the Southern Dreaming;
·DPLH ID 11812 and;
·other, unidentified songlines (and/or storylines).
I shall say a little about each of them.
Spearhole Creek
Spearhole Creek lies at the heart of the Ngarlawangga People’s case. The Native Title Party submits that Spearhole Creek is of particular significance to the traditional owners because:
·it is associated with important storylines and songlines, including those associated with the Spearhole Creek Dreaming;
·it contains a number of permanent waterholes called Yindas;
·the Yindas are home to a water serpent spirit called the “Thurru”; and
·there are other spirits associated with Spearhole Creek, which spirits are of a particularly sensitive nature.
DPLH 11812
At para 40 of its contentions, the Native Title Party seems to associate Spearhole Creek (within the proposed tenement) with DPLH ID 11812 (which lies outside of the proposed tenement). As far as I can see, DPLH ID 11812, as mapped, has no relevant
connection with Spearhole Creek within the proposed tenement, save for the fact that DPLH ID 11812 is recorded on the register as having the name “Spearhole Creek”. There is no specific evidence of songlines connecting the proposed tenement with DPLH ID 11812 as mapped, although the Native Title Party’s generalized evidence may be wide enough to involve all kinds of connection in that regard. The Native Title Party asserts that DPLH ID 11812 has been inaccurately mapped. However I see no basis for simply re-locating it. I also see no point in speculating about how, or why any such erroneous mapping may have occurred.
Giles Point, Giles Mini and Giles Mini 15
The Native Title Party submits that Giles Point, Giles Mini and Giles Mini 15 are of deep cultural significance because of their roles in traditional ceremonies and connection to stories and songlines. However no part of Giles Point is within the proposed tenement. Concerns about this area seem to be based on geographical proximity, and the possibility that harm to Spearhole Creek, and/or storylines or songlines within the proposed tenement, may cause harm to Giles Point, particularly Giles Mini. See the Native Title Party’s contentions at paras 41 to 43.
Application E52/3620
As concerns application E52/3620, two nearby features are said to be of a particularly sensitive nature due to their connection to male law lines. They are part of the Southern Dreaming. These features seem to be the “site” referred to in the Native Title Party’s contentions at para 48. The features are of spiritual, ceremonial and ritual significance to the Ngarlawangga People, and to the broader Aboriginal community. However they are not within the proposed tenement. Hence they can only be presently relevant if it be shown that it is unlikely that actions within the proposed tenement will interfere with them. Although there are generalized assertions of songlines throughout the determination area and beyond, there is no specific identification or location of any songline linking the Southern Dreaming, or the two associated features to the proposed tenement. As far as I can see, the Southern Dreaming is not related to the proposed tenement in any way.
Spearhole Creek Dreaming
Application E52/3620 is related to the proposed tenement only to the extent that the Spearhole Creek Dreaming songline is said to touch or traverse it. I have already noted the absence of any evidence concerning the location of any songline, within or outside of the proposed tenement, or of application E52/3620. Hence there is no evidence as to where relevant interference with such songlines may occur within the proposed tenement, its nature or extent, or as to any damage which may occur within application E52/3620. The Native Title Party relies on little more than broad assertions from which I cannot identify any risk that the proposed grant will cause harm to the Southern Dreaming, the two Southern Dreaming features or application E52/3620. It is unlikely that exploration pursuant to the proposed grant will interfere with those features.
Other contentions
In paras 44-48 of the Native Title Party’s contentions, there are further generalized references to areas and sites. At para 44 it is said that there are several significant stories associated with the area of the proposed “tenements”. However only two stories have been identified and one, the Southern Dreaming, has no apparent connection to the proposed tenement, or to application E52/3620. At para 45, it is said that the Ngarlawangga people have a responsibility to protect areas according to their traditional laws and customs, “because they are connected to [songlines]”. Although the locations of such connections and songlines are said to be known, they have not been disclosed, and so I cannot assess the likelihood of interference. Precise location may not be necessary. Nonetheless, I find generalized references to discrete sites, without any description of the locations of connecting songlines, to be less than informative.
At para 46, there is a bare assertion that the proposed tenement is an area of spiritual, ceremonial and ritual significance to the Ngarlawangga People and the broader Aboriginal community. At para 47, there is a further reference to Giles Point. I shall discuss Giles Point in detail at a later stage. Paragraph 48 deals with the area or areas lying near to application E52/3620. I have discussed them.
Concerning risk of interference, the Native Title Party submits that relevant considerations include:
·the nature of the site;
·the nature of the potential interference;
·whether interference with, or around the site has already occurred;
·the applicable native title laws and customs;
·the intentions of the Proposed Grantee; and
·the protective regulatory regime of the AH Act.
At paras 53-57 of its submissions, the Native Title Party largely repeats its submissions concerning Spearhole Creek, Giles Point and application E52/3620. In particular, it submits that damage to either Spearhole Creek or Giles Point would cause harm to the other, due to the songlines, “which run between them”. Paragraph 53 may create a misleading impression. The reference to, “a number of connected waterways”, may suggest an area beyond the “tenements”, which area has no identified boundaries. The maps suggest that there are other waterways in the general area. However Spearhole Creek is the only waterway which has been identified in the evidence, as being of particular significance to the traditional owners.
At para 55 the Native Title Party submits that there is a site near to application E52/3620, which is of significance due to its connection to the mythology of the Ngarlawangga People and others. This reference is to the Southern Dreaming and the two associated sites previously discussed. As I have said, there is no apparent connection between the proposed tenement and the Southern Dreaming, or the site (or sites) identified at para
55. At para 56, the Native Title Party asserts that there is direct evidence that harm done to either Spearhole Creek or Giles Point, “would likely cause spiritual harm to the other site, due to the songlines which run between them”. There will be no relevant conduct on Giles Point pursuant to the proposed grant. Only conduct on the proposed tenement will be pursuant to such grant. Whilst I accept that Giles Mini is associated with the Spearhole Creek Dreaming, I do not accept that conduct on the proposed tenement will have an effect on Giles Point, including Giles Mini. This conclusion is based on two considerations. The first is the uncertainty concerning the track taken by the Spearhole Creek Dreaming, which Dreaming apparently provides the connection between Giles
Southern Dreaming and Associated Sites
I have previously observed that the Southern Dreaming has no demonstrated connection to the proposed tenement. Whilst the Native Title Party asserts that the network of songlines and storylines is virtually ubiquitous, there is no evidence identifying the locations of those which link events in the proposed tenement to either of the sites associated with the Southern Dreaming, or to the Southern Dreaming itself. Further, for reasons which appear below, I am satisfied that it is unlikely that any action pursuant to the proposed grant within the proposed tenement will cause any interference in that tenement. For those reasons, it is unlikely that the proposed grant will interfere with the Southern Dreaming, or either of the associated sites.
DPLH ID 11812
The area in question is located more than 10 kms south-east of the proposed tenement. Save for the alleged network of songlines (which may, perhaps, extend so far), the site is connected to the proposed tenement only by the name “Spearhole Creek” which name appears on one of the maps. No relevant songlines are identified. I see no basis for anticipating interference with this area. I am satisfied that the proposed grant is unlikely to interfere with it.
Other Unidentified Songlines (and/or Storylines)
I include this paragraph only for completeness. I have already explained my reluctance to draw any inference from unparticularized assertions concerning the connection of sites by the alleged network of songlines and/or storylines. The absence of such evidence leads me to conclude that it is unlikely that the proposed grant will cause any interference to songlines, storylines or associated areas.
Spearhole Creek, the Yindas and the Spearhole Creek Dreaming
I accept that, according to the Spearhole Creek Dreaming, (text removed). For that reason alone, I would accept that the whole of the creek is a site of particular significance, according to the native title holders’ traditions. Within the boundaries of the proposed tenement, the presence of the Yindas, the Thurru, and other spirits add to that significance. I accept, too, that pursuant to Ngarlawangga tradition, the Spearhole Creek Dreaming and an associated songline pass through the proposed tenement. However the path taken is undisclosed. In his gender-restricted statement, Mr Hubert says that the songline, “runs all the way down to Kunderong Range, then turns west before heading south”. Mr Hubert also says that the relevant ancestral being “owns” the area around the “tenements”, and that the songline is long and connects “us” to other groups.
In Appendix 1, at para 65, according to information provided by Mr Hubert and Mr Booth, it is said that the Spearhole Creek Dreaming enters the determination area from the north and passes through the “tenements” and Ngarlawangga country to the Kunderong Range to the south-west. Mr Herrmann, in his gender-restricted statement, says that, “one songline flows directly through [the proposed tenement].” He also says that it, “runs through the entirety of [the proposed tenement]”, and that Spearhole Creek is closely associated with the Spearhole Creek Dreaming.
Although Spearhole Creek flows through the proposed tenement from west to east, it seems unlikely that the Spearhole Creek Dreaming and its songline follow the creek for the whole of its length within the proposed tenement. The evidence suggests that the Dreaming passes through Giles Mini and application E52/3620, both of which are located outside of the proposed tenement and about halfway between its eastern and western extremities. If the Dreaming and its songline enter the determination area in the north, they may flow south through Giles Mini, then through the proposed tenement,
from north to south, then through application E52/3620 and then westerly to the Kunderong Range. Another possibility is that the Dreaming enters the proposed tenement from the north or north-west, travels east, then through application E52/3620 and thence to the Kunderong Range. There may, at some stage, be a detour through Giles Mini. It is also possible that the ancestral being entered the proposed tenement in the north-west, near the point at which Spearhole Creek enters the proposed tenement. I suggest this possibility because the ancestral being is said to have created the creek at that point. See Mr Hubert’s gender-restricted evidence at para 4. In that case, the Dreaming may have travelled eastward to Giles Mini, and then south or south-east, before passing through application E52/3620.
All of this is speculation. There is simply insufficient evidence to identify the path taken by the Dreaming and its songline, through Giles Point, the proposed tenement, application E52/3620 and thereafter. Although Ngarlawangga people assert knowledge of the location of the songline track, they have provided no clear evidence of it. In the absence of such evidence, I am unable to identify any basis for anticipating interference with the Spearhole Creek Dreaming, or the associated songline, as a result of the proposed grant. I am satisfied that it is unlikely that there will be such interference.
As to Spearhole Creek, itself, at paras 16 and 17 of his open statement, Mr Hubert speaks about disturbance or damage to the creek. However he does not identify the nature of such disturbance or damage. The words “disturb” and “damage” are not used in s 237(b). The word used is “interfere”. I have already said something about the meaning of that word. Paragraph 16 provides no information as to activities which might constitute disturbance or damage, sufficient to cause the Thurru to leave the waterholes. If the word “interfere”, in s 237(b), includes mere entry, then such interference would not necessarily result in disturbance or damage sufficient to cause the Thurru to depart.
At para 17 of his open statement, Mr Hubert seems to fear loss of water as the result of spiritual disturbance. He asserts that loss of access to water from Spearhole Creek, including the waterholes, will limit Ngarlawangga people in hunting and gathering. Such consequences are more relevant to s 237(a) than s 237(b). Later in his open statement, Mr Hubert seems to treat the loss of water as the spiritual consequence of the proposed grant. For the purposes of s 237(b), the significance of any loss of water is that it may result from the departure of the Thurru because of damage or disturbance to the creek. Other anticipated consequences of such damage or disturbance, include the
activity of other spirits living in the creek. However, for reasons which appear below, it is unlikely that the proposed grant will damage or disturb Spearhole Creek.
At para 21, Mr Hubert addresses possible damage to storylines in the Spearhole Creek area, with consequences which include illness or death. However, as I have previously pointed out, although the Native Title Party claims that it must care for the storylines, and therefore must be able to locate them, no evidence has been given as to such locations. Hence it is difficult for me to accept this aspect of the evidence at face value in assessing the risk of damage as a result of the proposed grant. Further, the Native Title Party seem not to distinguish between the storylines concerned with the Spearhole Creek and Southern Dreamings (which are clearly of particular significance) and other storylines which are probably not of particular significance.
As to the possibility of a mine in or near Spearhole Creek pursuant to the Proposed Grant, although there may only be exploration activities. Further, as discussed below, the terms of the proposed grant protect the bed, banks and water of the creek. Whilst it is possible that persons may enter in the vicinity of the creek, it does not follow that such persons would cause damage of the kind contemplated by Mr Hubert in para 21 of his open statement.
At para 22 Mr Hubert asserts that there can be no exploration near Yindas “and sites” because they are “sacred areas”, and that it is important to the Ngarlawangga that they be protected, “because they are all connected to one another and the registered sites nearby, like Giles Mini”. The words “and sites” significantly detract from the force of Mr Hubert’s evidence concerning the Yindas. In effect, he equates the Yindas to other, unidentified places, all of which are said to be “sacred”. I have no basis for inferring that these unidentified sites are of particular significance. Further, the reference to their all being, “connected to one another and to the registered sites nearby like Giles Mini,” is a little too promiscuous a mixture of unidentified sites and connections to be expected. I have previously pointed out that the quality of sacredness is not necessarily synonymous with particular significance according to the native title holders’ traditions.
To the extent that the Native Title Party asserts that exploration may cause disturbance or damage to the waters, banks and bed of Spearhole creek, I again refer to endorsements 11 to 14 of the proposed grant. They deal with such matters by reference to the Rights in Waters and Irrigation Act 1914 (WA) (The “RIWI Act”). The proposed tenement
lies within the Pilbara Surface Water Area, having been proclaimed as such pursuant to s 6 of the RIWI Act. Licences are dealt with in s 5C and Schedule 1 of the RIWI Act. Permits are dealt with in s 17 of that Act. This legislation is administered by the Department of Water and Environmental Regulation (the ‘DWER”), not by the Department of Mines, Industry Regulation and Safety.
By virtue of the endorsements and conditions, the proposed grant will not, of itself, authorize the taking of water from Spearhole Creek, or interference with its water, bed or banks, in the absence of an appropriate licence or permit. It seems that the State has long regulated and protected water resources. As in most other parts of Australia, water is precious.
In the Rights in Water and Irrigation Regulations 2000, (the “RIWI regulations”), reg 23 requires public notification of any application for a licence under the RIWI Act. In the case of an application for a permit, the Minister may require public notification pursuant to reg 5. In connection with a licence application, para 7 of Sch 1 to the RIWI Act lists numerous matters of public interest which the Minister must take into account in determining an application for a licence. There is no express reference to the interests of Aboriginal people, but such interests would fall within a number of the relevant considerations. Examples are the public interest, current and future needs for water and detrimental effects on other persons. Regulation 7 sets out a similar list of matters to be considered in determining an application for a permit. Whilst there may be no certainty that the Ngarlawangga will be heard in opposition to any application for a licence or permit, it seems that their interests may be taken into account in the decision-making process. However the point is that the bed, banks and water of the creek are protected.
There may be access to the creek, without disturbance or damage. However much of the difficulty in this case arises out of the Native Title Party’s assertion that any entry upon an area or site will constitute interference for the purposes of s 237(b). In Yindjibandi, McKerracher J accepted that in some cases, mere entry may constitute interference for the purposes of s 237(b), a view which I respectfully adopt. However it does not follow that, in every case, mere entry is interference. Much of Mr Hubert’s evidence concerns the consequences of damage to songlines, storylines or sites, not to mere entry. It is reasonable to infer that in some cases, any actual disturbance or damage would be inconsistent with Ngarlawangga traditions concerning such matters. However Mr Hubert’s evidence concerning access without consent, seems to be based on his
views rather than specific Ngarlawangga traditions as contemplated by McKerracher J. As I have said, one would expect some reference to stories, lore or oral history to demonstrate that such assertion has a basis in the traditions of the Ngarlawangga People, and that any particular prohibition relates to an area or site of particular significance.
Mr Herrmann’s evidence is to similar effect. Thus, in his open statement at paras 21 and 22 he addresses damage and disturbance in connection with sites and mythologies. At para 20, Mr Herrmann speaks of the need for permission to enter Ngarlawangga country, but there is no reference to any traditional basis for such a requirement, or for treating entry, of itself, as interference in the sense used by McKerracher J. It is true that in his report, Mr Herrmann, at paras 47 and 48, refers to ancestral obligations to protect and care for Ngarlawangga country and decide who might visit it. However, this view seems to be largely based upon Mr Hubert’s views. I have already identified the difficulties in his evidence.
Accepting that Spearhole Creek, the Yindas, the Thurru and the other spirits within the boundaries of the proposed tenement, are areas or sites of particular significance in accordance with the traditions of the Ngarlawangga People, the question is whether the proposed grant is likely to interfere with them. For present purposes, the endorsements in the proposed grant offer specific protection to the water, bed and banks of the creek. Whilst such protection may, in the future, be limited by the grant of a licence or a permit, there is no reason to believe that such a grant is likely, given the clear statutory and regulatory commitment to the protection of such waterways. Further, the Native Title Party has failed to identify, with any degree of specificity, the nature of any risk of interference to Spearhole Creek, the location at which it may occur or the consequences.
There remains for consideration only the possible effects upon the Thurru and the other spirits. It is said that disturbance or damage to the creek may result in the Thurru departing, taking the water with it. Such disturbance or damage may also anger the other spirits, leading to people being injured badly. As the proposed grant will not authorize obstruction or interference with water, bed or banks of the creek, there is no reason to believe that there will be any such disturbance or damage. These feared consequences are unlikely to occur.
The Native Title Party accepts that for the purposes of s 237(b), it must identify each site of significance, with some degree of specificity, and that there must be an
evidentiary basis for the assertion of particular significance. Neither criterion has been met in connection with the concerns identified in the Native Title Party’s contentions or in its reply.
I conclude that it is unlikely that the proposed grant will cause any interference to either Dreaming, the Dreaming songlines, or other songlines or storylines. Nor is it likely that there will be any interference with Spearhole Creek or Giles Mini.
CONCLUSION
I conclude that the proposed grant is an act attracting the expedited procedure.
GENDER-RESTRICTED ANNEXURE A
MR HUBERT’S GENDER-RESTRICTED STATEMENT
In his gender-restricted statement, Mr Hubert identifies two Dreamings, one associated with Spearhole Creek (the “Spearhole Creek Dreaming”), and one associated with two features near to application E52/3620 (the “Southern Dreaming”). I have adopted these names in the hope that it will minimize the extent to which gender-restricted evidence may be exposed in these reasons. As far as the evidence goes, the Southern Dreaming has no relationship to the proposed tenement.
Although the matter is not entirely clear, some of the evidence suggests that the Spearhole Creek Dreaming flows through both the proposed tenement and application E52/3620, then runs west to the Kunderong Range, and then south. However, as I have demonstrated, other evidence suggests alternative routes. This Dreaming is an important part of Ngarlawangga culture and lore. The Ngarlawangga People must be careful to protect country, “where we know important Dreaming tracks flow”. As well as its association with the proposed tenement and application E52/3620, the Dreaming is also associated with Giles Mini. The Ngarlawangga must look after a song associated with the Dreaming by singing and protecting places associated with it. Acquiring the knowledge concerning such places is an important part of Ngarlawangga culture. By knowing the Dreaming songlines, the initiated men get to know and understand their country.
There is a further aspect to Mr Hubert’s gender-restricted statement. It concerns spirits which live along Spearhole Creek. It is said to be important that Spearhole Creek not be disturbed. If the country is not properly treated, the spirits may, “really hurt you”. In his gender-restricted statement, Mr Hubert does not refer to the features associated with the Yindas, the Thurru, the ochre sources or the quandong trees, those matters not involving gender-restricted information.
GENDER-RESTRICTED ANNEXURE B
MR HERMANN’S GENDER-RESTRICTED STATEMENT
Mr Hermann’s gender-restricted evidence is quite limited. Mr Hubert has told him that there are songlines in and round the “tenements”, that they flow, “through the area”, and are associated with, and connected to sites in, and around the “tenements”. He refers particularly to the Spearhole Creek Dreaming, saying that it is part of the religion of both the Ngarlawangga people, and the broader Pilbara regional Aboriginal community.
Mr Herrmann says that one songline, in particular, flows directly through the proposed tenement. It is associated with the Spearhole Creek Dreaming, and is known only to Ngarlawangga men and, generally, only to initiated men. Mr Herrmann understands that Mr Hubert and Mr Booth consider that Spearhole Creek should be a, “registered site”, due to its association with the Dreaming. They have also informed him that Giles Point and Giles Mini are connected with activities in the Dreaming and are part of the same songline as that Dreaming.
I should say that Giles Mini appears to be more closely related to the Dreaming than Giles Point or Giles Mini 15, Giles Mini having been visited by the relevant ancestral being.
GENDER-RESTRICTED ANNEXURE C
SUMMARY OF APPENDIX I
To the extent that it deals with the Southern Dreaming, Appendix I is not presently relevant.
As to the Spearhole Creek Dreaming, it is said to enter the determination area from the north and pass through the “tenements” and Ngarlawangga country, to the Kunderong Range. The evidence suggests other possible routes. This Dreaming is said to be of particular significant to the Ngarlawangga People. It describes the journeys, activities and essence of the relevant ancestral being. It is an important part of Ngarlawangga lore and culture. The Ngarlawangga people must be careful to protect country where important Dreaming tracks flow. The Spearhole Creek Dreaming is a long songline, connecting the Ngarlawangga to other groups. The Dreaming song has a name, which name can only be heard by initiated men. The relevant ancestral being stopped in the north of the proposed tenement, and there, by its actions, created Spearhole Creek, which creek runs to the east.
It is said that ancestral beings were present at the “beginning of things”, and continue to exist. They, and all that is associated with them are still alive today, and will be for the indefinite future.
The spiritual and cultural “proactive elements” of the Dreaming require the Ngarlawangga to ensure that sacred story places are not damaged, so that they can be used in law ceremonies and taught to successive generations.
It is said that the Dreaming is of immense cultural and religious importance to the Ngarlawangga and Martu people. Any impact upon it, or associated physical places is likely to cause, “incredible social and spiritual harm to Ngarlawangga people and significantly impact [upon their] social and cultural standing”.
Appendix I also refers to certain statements by Mr Hubert, to which statements I have already referred.
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