Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group/Western Australia/Garry Evan Same

[2002] NNTTA 157

NATIONAL NATIVE TITLE TRIBUNAL

Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group/Western Australia/Garry Evan Same, [2002] NNTTA 157
(2 August 2002)

Application No:        WO01/461

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

Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Title Claimant Group (native title party)

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The State of Western Australia (Government party)

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Garry Evan Same (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  2 August 2002

Catchwords:     Native title – future act – proposed grant of exploration licence – expedited procedure objection application – act likely to interfere directly with the carrying on of community or social activities and interfere with sites of particular significance – act does not attract the expedited procedure.

Legislation:Aboriginal Affairs Planning Authority Act 1972 (WA) s 31, Regulation 8

Mining Act 1978 (WA) s 24(7)

Native Title Act 1993 (Cth) s 237

Cases:Irruntyju-Papulankutja Community/Western Australia/
Broadmeadow Pty Ltd, NNTT WO95/7, Paul Seaman QC, 6 October 1995

Dolores Cheinmora & Ors (Gwini, Walmbi and Wunnubal Peoples)/Western Australia/Striker Resources NL & Ors, NNTT WO95/16, C J Sumner, 19 January 1996

Dolores Cheinmora & Ors (Gwini, Walmbi and Wunnubal Peoples)/Western Australia/Striker Resources NL, NNTT WO96/41, Pamela O’Neil, 28 August 1996

Palmer Gordon Ngalpil/Western Australia/Glengarry Mining NL, NNTT WO96/49, C J Sumner, 2 October 1996

Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002

Representative of the

native title party:                 Mr David Saylor, Kimberley Land Council

Representative of the

Government party:             Mr Phil Boyland, Department of Mineral and Petroleum Resources

Representative of the

grantee party:  Mr Godfrey Taylor, Taylor Smart, Barristers & Solicitors

REASONS FOR DETERMINATION

Background

1. On 27 June 2001, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the Government party’) advised its intention to do a future act, namely to grant exploration licence 04/1195 (‘the exploration licence’) to Garry Evan Same (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 36.85 square kilometres located 168 kilometres north of Fitzroy Crossing, in the Shire of Derby-West Kimberley (centroid - latitude 16^o 41 minutes, longitude 125^o 55 minutes). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. On 15 October 2001, Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Willinggin Native Tile Claimant Group (‘the native title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure.  The native title party’s Application for Determination of Native Title (WC99/11) was registered by the Tribunal on 9 July 1999.  The area of the exploration licence is situated on this claim area.

3. The Tribunal accepted the objection application on 9 November 2001.

4. In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted.  At the request of the native title party, and with the consent of the grantee and Government parties, further directions were made on 12 June 2002 providing for the filing of additional contentions.  The parties were content for a determination to be made on the papers and I have decided that I can adequately deal with the matter in that way (s 151 NTA).

5. Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

Legal principles

The nature of an exploration licence and activities permitted by it

1. In Western Australia/Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002, I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[37]).  I adopt those findings for the purposes of this inquiry.

The evidence

1. The Government party’s evidence establishes that the underlying land tenure of the proposed tenement is:

   ·Pastoral Lease 3114/980 (vested in the Kupungarri Aboriginal Corporation Inc.);

   ·Reserve 40092 (vested in the Aboriginal Lands Trust for the use and benefit of Aboriginal inhabitants);

   ·Reserve 17421 (stock route);

   ·Road; and

   ·Unallocated Crown Land

2. There is an Aboriginal community within the tenement boundary, namely the Kupangarri (Mt Barnett) Aboriginal community (Reserve 40092).

3. The Aboriginal Sites Register reveals that there are five sites registered under the provisions of the Aboriginal Heritage Act 1972 (WA) which variously are mythological and contain artefacts, paintings and engravings.

4. The Kupungarri Aboriginal community is located on Reserve No 40092 which is vested in the Aboriginal Lands Trust for the use and benefit of Aboriginal inhabitants. The Government party contends that this means that the exploration licence is unlikely to interfere directly with the carrying on of the native title party’s community or social activities. This contention is based on previous Tribunal findings that the regulatory regime applicable to Aboriginal Reserve land is such that an exploration licence is unlikely to cause the interference or disturbance referred to in s 237 (Irruntyju-Papulankutja Community/Western Australia/Broadmeadow Pty Ltd, NNTT WO95/7, Paul Seaman QC, 6 October 1995; Dolores Cheinmora & Ors (Gwini, Walmbi and Wunnubal Peoples)/Western Australia/Striker Resources NL & Ors, NNTT WO95/16, C J Sumner, 19 January 1996; Dolores Cheinmora & Ors (Gwini, Walmbi and Wunnubal Peoples)/Western Australia/Striker Resources NL, NNTT WO96/41, Pamela O’Neil, 28 August 1996; and Palmer Gordon Ngalpil/Western Australia/Glengarry Mining NL, NNTT WO96/49, C J Sumner, 2 October 1996).

5. This is because under s 24(7) of the Mining Act 1978:

• the written consent of the Minister for State Development is necessary before exploration can commence over Reserve land covered by Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA) (the exploration licence will contain a condition to this effect); and

• before consent is given the Minister for State Development must consult with and obtain a recommendation from the Minister for Indigenous Affairs.

1. The Minister for Indigenous Affairs will consult with the local Aboriginal community and the Aboriginal Lands Trust.  Under the Aboriginal Affairs Planning Authority Act 1972 (s 31 and Regulation 8) the grantee party cannot gain access to Aboriginal Reserve land without authorisation from the Minister for Indigenous Affairs. In practice, the Minister will require the grantee party to negotiate an agreement with the relevant Aboriginal community in respect of access to the land for exploration activities. This will usually include conditions for the protection of Aboriginal sites.

2. The Kupungarri Aboriginal community comprises at least some of the members of the native title party and I find it likely that exploration on the Aboriginal Reserve will be permitted only if an appropriate agreement with them is in place. Given the native title party’s objection to exploration based on the s 237 factors, I accept that permission to enter the Reserve will not be granted by them unless the issues of concern have been satisfactorily dealt with and appropriate conditions imposed. The Minister for State Development is unlikely to consent to mining until the Minister for Indigenous Affairs has authorised access to the exploration licence area.

3. Had the whole of the exploration licence area been Aboriginal Reserve land I would have found that the expedited procedure was attracted.  However, the tengraph map, provided by the Government party, only shows the Reserve to cover a relatively small part of the exploration licence area.  None of the registered sites under the Aboriginal Heritage Act appear to be located within it.  The evidence of Ms Nulgit and Mr Wilson suggests that there are sites near the Kupungarri Aboriginal community but it is impossible on the evidence to accurately locate them on the Reserve.  For these reasons I find the protective regime for Aboriginal Reserves to be little significance in this case.

4. The grantee party provided no contentions or evidence but indicated that he would rely on those lodged by the Government party.  As there is no evidence of the grantee party’s intentions in relation to exploration I have dealt with this matter on the basis that the grantee party will exercise the rights available to him under the grant to the full extent permissible by law.

5. The native title party lodged affidavits of Pansy Nulgit and Eric Wilson.  This evidence was not contested and I accept it for the purpose of this determination

6. Affidavit of Pansy Nulgit

   ‘I, Pansy NULGIT, pensioner, of Kupangarri Aboriginal Community (Kupangarri) via Derby, Western Australia affirm as follows:

   1.     I am a named claimant in the registered Wanjina Wunggurr Wilinggin native title claim.  The judge in our claim came to our country last year, I told him and the lawyers that I would tell the truth about my country.  I told the judge many stories about my country and my people.

   2.     A lawyer from the Kimberley Land Council told me, and I believe that a person by the name of Gary Evan Same wants to explore for minerals on our country.  I have seen a map where the company wants to explore and work.  I am aware that the company has made an application for an exploration license (E04/11950).  Annexed to this Affidavit and marked with the letter “A” is a copy of the map that was shown to me.

   3.     The area of land where Gary Evan Same has applied for the exploration license includes the community of Kupangarri where I live.  It also includes some of the Mount Barnett Pastoral Lease, which the community owns.  It might also include the roadhouse and camping ground, which the community also owns.

   4.     I am currently living in Kupangarri with my immediate and extended family.  I know about the country and places around this area.  The old people taught me from this area and now I am telling the young ones here.  I am helping out the Traditional Owners for this Kupangarri area.

   5.     I am a member of the Ngarinyin group of people who live in and around Mt Barnett station and Kupangarri.  I speak Ngarinyin and teach this language to my children and grandchildren.  All the Aboriginal people in Kupangarri can speak Ngarinyin.

   6.     Kupangarri is just off the Gibb River Rd and at the moment about 60 Ngarinyin people live in the community.  There are other times when there are about 200 people in the community, especially during the dry season.  A lot of people come to the community at law or ceremony time.  There are 22 houses in Kupangarri.  About eight of these houses are empty at the moment but people will come back and live in them over the dry season.

   7.     I have seen the map and the license covers part of Kupangarri.  We have had many ceremonies in the license area and we also hunt for our food and find our bush tucker in this area.  Because I live on this land and we find our tucker and go to ceremony I must look after this country.  Looking after this country means that I must see what people are doing on that country.

   8.     The river is about 200 metres from the community.  We always go somewhere along the river, fishing.

   9.     On the map where the Gibb River Road crosses the river it appears to be in the middle of the exploration application area.  This is an area we use a lot for fishing, swimming and picnics.  If this application is granted without talking to us first, we are very worried that all our community and social activities will be affected.

   10.  People should come and ask other old people and me before they go into that country and do things.  We have to make sure that no one mess the place up.  If anyone has to go on our country they should ask us first because they might go on to a man or woman law ground.

   11.  It appears to me from the map that there are a number of places in the area where the exploration license is which are very special.

   12.  This includes three different law grounds.  The first one is a men’s law ground and it is not used anymore.  It is about 10 minutes walk from the community.  Even though we do not use it anymore we do not want any one to go there and it is a very special place for the young boys and men.  No woman is allowed to go to this place.

   13.  Our second law ground is another men’s law ground and it is not used anymore.  It is about a 1 hour walk from the community.  Even though we do not use it anymore we do not want any one to go there and it is a very special place of the young boys and men.  No woman is allowed to go to this place.

   14.  The third is our new law ground.  This is the men’s law ground that is now used for young men ceremony.  It is close to the community.  It is walking distance from the community.  This is a very special place and we do not want any one to go there.  It is a very special place for the young boys and men.  No woman is allowed to go to this place.

   15.  There is a cave with a number of Wanjina and other paintings.  Wanjina paintings are Aboriginal spirit paintings and they live in the rocks.  This area is about 30 minutes walk from the community.  These paintings have been here a long time and we still visit them and fix them when we have to.  We have to protect these paintings.

   16.  Manning Gorge.  We call this place Kardbulwaningnarri.  This means water and waterfall.  It is wunggurr water.  This means living water.  This area has Wanjina and other paintings.  The Wanjina paintings live in the rocks forever.

   17.  The Manning Gorge area is also a type of burial ground.  Back in the old days a white man, Jack Carey, and his Aboriginal wife killed a lot of Aboriginal people.  His wife would call out for the Aboriginal people and they would come out of the bush.  The white man would then shoot or stab the Aboriginal people and leave them to die.  The dead people would then be thrown into Manning Gorge.  People are allowed to swim there but it is a very special place and no one is allowed to disturb the area.

   18.  Many of our old people are buried all through the hills around Kupangarri.

   19.  There are also two billabongs in the application area, which have lots of bush tucker like turtles, fish, eels and water lilies.  We still go to these billabongs for a feed.

   20.  Also in the application area is a woman’s special ground.  It has plenty of white ochre, which the women use at ceremony time.  It is the only place where we can find white ochre.  If any men go to that place they will always be dreaming of a woman following them.

   21.  There are two other places in the application area with Wanjina paintings.  The Sites Department has recorded some of these places.

   22.  We use red, white and yellow ochre to fix up the paintings when we have to.  We get all these different colored ochre from around Kupangarri.

   23.  There are also two places that I know where my old people sharpened stone axes and stone tools.  The Sites Department has recorded some of these places.

   24.  All of these areas are very important to us and if anyone disturbs them a lot of Ngarinyin people will be very upset.  We still like to go to all of these areas because we have been doing this for a very long time.  It is very important that I teach my grandchildren about all these places and tell them the stories so they can tell their children.  If anyone upsets these areas then I will not be able to tell my grandchildren the stories of our people.

   25.  If this application is granted without the Company having to talk to us, it will interfere with our burial sites and damage our special areas.

   26.  All of these special places in the tenement area are very special to Ngarinyin people especially our children who learn all the stories.

   27.  It is very important that the government and other people talk to Njarinyin people before they go on to that country because they might dig up our special places and a lot of people would then be very sad.

   28.  If those mining people come into our country we need to talk with them and tell them about our special places so they do not break them or touch them.  We also need to know what they are going to do to country and make sure that they do the right thing.

   29.  I know that mining mob are allowed to look for minerals but they must talk to Njarinyin people before they go into our country.  We must make sure that they do not go somewhere, which is special, or dig in a special place to us.  I still remember what happened at Noonkanbah and I do not want that to happen to my country.

   30.  All of the tenement area and places around it is called Djuardi country.  This means dead people country.  We call it this because this is where the white man and his Aboriginal wife killed a lot of Aboriginal people   If the mining mob comes in they might find some old bones or an old burial place.’

7. Affidavit of Eric Wilson

   ‘I, Eric WILSON, unemployed, of Kupangarri Aboriginal Community (Kupangarri) via Derby, Western Australia affirm as follows:

   1.     I have been told by a lawyer from the Kimberley Land Council (KLC) that a person by the name of Gary Evan Same (Same) want to explore for minerals on some ground which is on my traditional country from my father.

   2.     I have seen a map where Same wants to explore and work.  Annexed to this Affidavit and marked with the letter “A” is a copy of the map that was shown to me.

   3.     I am aware that Same has made an application for an exploration licence (E04/11950) and this area is on Ngarinyin traditional land.

   4.     All of the area within the application is on my traditional land.  I am a Ngarinyin man and have lived at Kupangarri most of my life.  Kupangarri community is located within the tenement area.

   5.     Pansy Nulgit has for as long as I can remember told me and other members of my family many Ngarinyin stories.  She has also told us of the many places that are special to Ngarinyin people.  She is responsible for telling me these stories and she always tells me that I must tell these stories to my children and their children so we do not lose our Ngarinyin culture and ways.

   6.     I have been to the three different men’s law grounds near Kupangarri.  I have been to these grounds for men’s ceremony.

   7.     There are two billabongs in the licence application area.  I have many times caught turtles and fish at those places.  I also know that the women take water lilies from those billabongs for us to eat.

   8.     My old people have also told me about the Wanjina paintings.  I have been to these places many times since I was a boy.

   9.     All of these areas are very important to us and if anyone disturbs them a lot of Ngarinyin people will be very upset.  I still like to go to all of these areas with my family because I have been doing this for a very long time.  It is very important that I learn about the Ngarinyin stories and tell them to my children.  If anyone mines in these areas then I will not be able to tell my children the stories of our people and will not be able to look for bush tucker.  It is very important to keep all these places safe so we can go back to our country and teach our kids how to find bush tucker and tell those Ngarinyin stories.

   10.  There are many special places in the licence area.  Some are places we still go to for law, ceremonies and bush tucker.

   11.  All of these special places in the tenement area are very special to Ngarinyin people.  We have to learn all the stories and why certain areas are special.

   12.  It is very important that the government and other people talk to Njarinyin people before they go on to that country because they might explore and mine on our special places.

   13.  If those mining people come into our country we need to talk to them and tell them about our special places so they do not destroy them.  We also need to know what they are going to do to our country and make sure that they do the right thing.

   14.  I know that mining mob are allowed to take minerals but they should talk to Ngarinyin people before they go into our country.  We must make sure that they do not go to explore in our special places.

   15.  My old people have told me that all of the licence area and places around it is called Djuardi country.  This means dead people country.  It is called this because a white man and his Aboriginal wife killed a lot of Aboriginal people.  If the mining people come in they might find some old bones or an old burial place.  It will make us very sorry and upset if they are dug up.

   16.  Kupangari is close to the Hann River.  This river has always got water in it and we use it for drinking, cooking and washing.  We also swim in the river a lot especially on hot days.  We want to make sure that the company does not make that water no good for us to use.

   17.  The Gibb River Road is not far from our community and if that mining mob drive close to our community all the time with trucks it will make a lot of noise and make a lot of dust.

   18.  Our hunting grounds are all over the tenement area and that mining mob if they dig up the area might make it no good to hunt for our food.

   19.  We own the roadhouse and children and other community members walk between the community and the roadhouse everyday.  I am concerned about the community’s safety in crossing Gibb River Road if there are big trucks travelling on the main road all the time and throughout our country.

   20.  Within this application area is our community, our pastoral lease where we run our cattle business, our roadhouse and our camping ground.  I have worries about this application affecting our business.  Tourists will not want to stay in our camping area if there is a mining company working there.’

1. Ms Nulgit is a registered native title claimant over the exploration licence area despite describing herself as a member of the Ngarinyin group.  The exploration licence area is on her country.  She knows about places around it.  Although she doesn’t explicitly say so, I can infer that she is authorised to speak on the matters contained in her affidavit.  The evidence of Mr Wilson is less satisfactory in this respect.  He is not a registered native title claimant over the area and does not explicitly say that he is a member of the broad claim group.  He says he is a Ngarinyin man but there is nothing on the Register of Native Title Claims or anywhere else that explains the relationship between Ngarinyin people and the Wanjina Wunggurr Willinggin Native Title Claimant Group.  If this were all the evidence, there would be some doubt about Mr Wilson’s status and the weight to be given to his evidence.  However, as Ms Nulgit is part of the Ngarinyin group and also a registered claimant on the Wanjina Wunggurr Willinggin claim, I infer from this that Mr Wilson is also a member of the claim group.  The exploration licence area is on Mr Wilson’s traditional land and he has lived at Kupungarri community most of his life.  On this basis I have accepted that he can speak about community and social activities and sites relevant to the claim group.  His evidence is consistent with that of Ms Nulgit.

Community or social activities (s 237(a))

1. The Tribunal must consider whether there is a real risk of substantial interference with the community or social activities of the native title party.

2. My finding is that the range of activities permitted by an exploration licence is likely directly to interfere with the community or social activities of the native title party.  That is, there is a real risk of substantial interference with them.  The following findings of fact support this conclusion.

1. The Kupangarri community, which is located on the tenement comprises members of the native title party claimant group including Ms Nulgit, her immediate and extended family and Mr Wilson.  There are 22 homes and depending on the season 60 to 200 people from the claim group live there.  Others come at law and ceremony time.  Other members of the claim group live in and around Mt Barnett Station which is located near the northern edge of the exploration licence area.

2. Members of the native title party claim group hunt for food and bush tucker in the area.  Traditional ceremonies are also conducted.

3. The tenement area covers the Barnett River which, near the Gibb River Road Crossing, is used by the claim group for fishing, swimming and picnics.

4. Ms Nulgit teaches the Ngarinyin language to her children and grandchildren, and also teaches others in the claim group about the country and places in the area.

5. There are two billabongs in the tenement area with turtles, fish, eels and water lilies which the native title claim group access for bush tucker.

1. This evidence establishes that members of the Wanjina Wunggurr Willinggin claim group live within the tenement area and frequently use the area of the tenement for traditional activities associated with their claimed native title rights.  These constitute community and social activities and given the frequency and nature of their occurrence mean that there is a likelihood that they will be interfered with in more than a trivial way.  In coming to this conclusion I have not had regard to evidence relating to possible interference with activities related to the use of the pastoral lease, the roadhouse or camping grounds as these do not arise from the claimed native title rights and interests.

Sites of particular significance (s 237(b))

1. The principal evidence under this heading is contained in the affidavits of Pansy Nulgit and Eric Wilson and the extract from the Register of Aboriginal Sites provided by the Government party.  My finding is that there are sites of particular significance to the native title party in accordance with their traditions on the exploration licence area.

2. The factual basis for my finding is that there are three different men’s law grounds which I accept are special places to the native title party.  There is a cave with Wanjina (Aboriginal spirit paintings) and other paintings 30 minutes walk from the community.  Also in the area is Manning Gorge (Kardbulwaningnarri) which also has Wanjina and other paintings.  There is also a women’s special ground in the area, which has white ochre used for women’s ceremony.  There are other places with Wanjina paintings and sites where Ms Nulgit’s ancestors sharpened stone axes and tools.  Many people from the claimant group are buried through the hills around the Kupangarri community.  Ms Nulgit says that all the places are important to the native title party.

3. The extract from the Register of Aboriginal Sites lists five registered sites within the area of the tenement:

• Warrang/Manning Gorge (Site ID 13523) is on the Interim Register, has closed access, no gender restrictions and is a mythological, painting and artefact site.  The Register extract notes that the information was provided on 15 July 1972 and the informant contact details have been suppressed.  Suppression of the informant’s identity and its closed status suggests that it is a special place for the claimant group.

• Manning Creek 1 (Site ID 14591) is on the Interim Register, has closed access, no gender restrictions and is a mythological and painting site.

• Manning Creek 2 (Site ID 14592) is on the Interim Register, has closed access, no gender restrictions and is a mythological and painting site.

• Gubalwarringardi (Site ID 14605) is on the Interim Register, has closed access, no gender restrictions and is a mythological, painting and engraving site.

• Mt Barnett Ranges (Site ID 14606) is on the Interim Register, has open access, no gender restrictions and is an engraving site.

1. On the tengraph map submitted by the Government party, site 14605 is shown at the extreme north western corner of the tenement area; sites 14591, 14592 and 14606 are just outside the north eastern corner; and 13523 just inside the south eastern corner.  This latter site is the only one close to the Kupungarri community being approximately 1 km from the edge of the Aboriginal Reserve.  On the other hand the Site Search map shows most of the tenement area covered by what appears to be sites 14605, 14591, 14592 and 14606 all located somewhere within a 10 square kilometre area. The location of site 13523 is shown to an accuracy of 1 square kilometre half of which intersects the tenement area.  The Register of Aboriginal Sites extract says that the coordinates are indicative locations and may not necessarily represent the true centre of a site, especially where it is shown as ‘closed’ or ‘vulnerable’.  It also says that the location of each site is unreliable.

2. It is difficult to match up the sites on the Register with those referred to in the affidavits of Ms Nulgit and Mr Wilson.  The only direct match is Manning Gorge (Site 13523).  Otherwise Ms Nulgit refers to two other places with Wanjina paintings and two places where old people sharpened stone axes and tools some of which the Sites Department has recorded (paras 21 and 23 of her affidavit).  It is not possible directly to match these sites with the Sites Register.  However, her evidence does indicate that these sites are in addition to the law and ceremony grounds and burial grounds in the hills around Kupungarri referred to elsewhere in her affidavit.

3. The fact that a site is on the Register does not mean that it is necessarily a site of particular significance to the native title party in accordance with their traditions.  In this case, though, I can safely draw that inference in relation to all but ID 14606 (Mt Barnett Ranges).  They are all on the claim group area, they are the type of site which suggest they are special (mythological and painting in particular) and have closed access.  The reference to sites containing Wanjina paintings referred to in Ms Nulgit’s affidavit supports this finding.  The information on the Register of Sites combined with that of Ms Nulgit confirms a finding that these are sites of particular significance to the native title party.  The exception is the Mt Barnett Ranges site, which on the basis of the evidence provided is only one engraving site and falls short of establishing it as a site of particular significance.

4. I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act 1972 (WA) are sufficient to ensure that it is unlikely (there is no real risk) of the area or sites being interfered with. The Tribunal has often but not necessarily held this to be the case. Where an area is rich in sites or the whole area is of particular significance, the Tribunal has found that the Aboriginal Heritage Act is inadequate to provide the necessary protection without negotiations with the native title party.  (See cases cited in Walley (WO01/179 and WO01/180) at [51].)

5. The grantee party has provided no evidence of what it intends to do to protect the areas or sites identified by the evidence. A number of options are discussed in the Government party’s Guidelines for Aboriginal Consultation by Mineral and Petroleum Exploration, which is sent to each licensee but there is no evidence that the grantee party has considered these in the circumstances of the grant of this tenement. Even though I accept that the grantee party will obey the law this is a case where the number and nature of sites of particular significance is such that there is a real risk of interference with them unless the normal negotiations under s 31(1)(b) of the Act take place. The location of some of the Registered Sites is unreliable and only located by reference to a 10 square kilometre area and the location of other sites is only known to the native title party, suggesting that their close involvement with the grantee will be needed if interference with sites is to be avoided.

6. Finally, I comment that it would in future be of assistance to the Tribunal if the native title party commented on the particular significance or otherwise of sites on the Register.  The registered sites information is provided to the native title party before they are required to submit their contentions and documents thus providing them with the opportunity to give primary evidence about them.

Major disturbance (s 237(c))

1. In view of my findings under s 237(a) and s 237(b), it is not necessary to consider this issue.

Determination

1. The determination of the Tribunal is that the grant of exploration licence 04/1195 to Garry Evan Same is not an act attracting the expedited procedure.

Hon C J Sumner

Deputy President
2 August 2002