Paul Cox, Laurie Cox, Matthew Cox, Carmel Charles, May Charles and Maude Ninjana/Western Australia/Stirling Resources NL; Basin Oil NL; First Australian Resources NL; Austin Oil International NL; Moondance Energy...
[1997] NNTTA 166
•27 October 1997
NATIONAL NATIVE TITLE TRIBUNAL
Paul Cox, Laurie Cox, Matthew Cox, Carmel Charles, May Charles and Maude Ninjana/Western Australia/Stirling Resources NL; Basin Oil NL; First Australian Resources NL; Austin Oil International NL; Moondance Energy Pty Ltd; Indigo Oil International Ltd, Pelsoil NL; Gulliver Productions Pty Ltd, [1997] NNTTA 166 (27 October 1997)
Application No.: WO97/97 and WO97/99 heard together
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an Inquiry into an objection to inclusion in an expedited procedure
WO97/97
Paul Cox, Laurie Cox, Matthew Cox, Carmel Charles, May Charles and Maude Ninjana (Native title party)
- and -
The State of Western Australia (Government party)
- and -
Stirling Resources NL, Basin Oil NL, First Australian Resources NL, Austin Oil International NL, Moondance Energy Pty Ltd, Indigo Oil International Ltd, Pelsoil NL, Gulliver Productions Pty Ltd (Grantee party)
WO97/99
Darby Nangarin, John Dodo, Peter Clancy and John Watson (Native title party)
- and -
The State of Western Australia (Government party)
- and -
Austin Oil NL (Grantee party)
REASONS FOR DETERMINATION
Tribunal: The Hon C J Sumner, Member
Place: Perth
Date: 27 October 1997
Catchwords: Native title - objection to inclusion in an expedited procedure - proposed grant of petroleum exploration permit - summary of the new test of whether act directly interferes with community life, whether act interferes with area or sites of particular significance or whether act involves major disturbance to land or waters - Tribunal to consider the nature of rights conferred by the grant of petroleum exploration permit - the test is what is made possible by the grant - the nature of the rights conferred by the grant of a petroleum exploration permit considered - relevance/importance of legislation, ministerial directions and administrative practices to control environmental damage considered - the existence and use of ministerial and administrative directions cannot be taken into account - findings of what activities may be involved in petroleum exploration - evidence of spiritual connection and responsibility for land - protective provisions of Aboriginal Heritage Act 1972 (WA) inadequate - grants of petroleum exploration permit does involve direct interference with community life and interference with sites of particular significance - not acts attracting the expedited procedure.
Legislation:Native Title Act 1993 (Cth), ss 237 (a), 237(b), 237(b)
Petroleum Act 1967 (WA), ss 5(1), 15, 16, 38, 43, 95, 99
Environmental Protection Act 1986 (WA), ss 38, 40, 44, 45
Aboriginal Affairs Planning Act 1972 (WA), s 31, reg 8(3)
Cases: Dann v Western Australia, (1997) 144 ALR 1
Dann (Unggumi Ngarinyin)/State of Western Australia/GPA Distributors Pty Ltd, NNTT WO95/19 (No. 2), Hon CJ Sumner, 10 June 1997
Nyungah People/State of Western Australia/Empire Oil Company (WA) NL and Amity Oil NL, GeoPetro Co, Ensign Operating Co & Seven Seas Petroleum Inc, NNTT WO95/29, WO95/32, WO95/36 and WO95/37, Hon Paul Seaman, QC, 30 April 1996
Irruntyju-Papulankutja/State of Western Australia/Broadmeadows Pty Ltd, NNTT WO95/7, Hon Paul Seaman QC, 6 October 1995
REASONS FOR DETERMINATION
INTRODUCTION
The Native Title Act 1993 (Cth) ('the Act') provides that where the Commonwealth, a State or Territory (the 'Government party') proposes to do certain permissible future acts (such as the creation of a right to mine), the 'right to negotiate' provisions in Subdivision B, of Division 3, of Part 2 (ss 26-44) of the Act apply, and the acts may only validly be done if the procedures in Subdivision B are followed.
In summary, unless the act is an act attracting the expedited procedure, the Government party must negotiate in good faith with the native title parties (who include any person who becomes a registered native title claimant within two months of the Government party giving notice of its intention to do the act (s 30(a)) and the grantee parties (who are the persons who have made application to do the act (s 29(3)(d)).
The Government party must give notice of its intention to do the act (s 29(1)). It may also include a statement that it considers the act is an act attracting the expedited procedure, i.e. that the act can be done without the necessity to negotiate (s 29(4)). Where a native title party objects to inclusion of the expedited procedure statement, the Tribunal must, after inquiry, determine whether the expedited procedure is or is not attracted (ss 32(4), 75 and 139(b)) If the Tribunal determines that the act attracts the expedited procedure, the act may be validly done (ss 28(1)(c) and 32 (4)). If the Tribunal determines that the act does not attract the expedited procedure it must request the Government party and the grantee parties to negotiate in good faith with the native title parties with a view to obtaining their agreement to the doing of the act (s 32(5)).
Section 237 of the Act provides that a future act is an act attracting the expedited procedure if:
'(a) the act does not directly interfere with the community life 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 does not 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 does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned.'
Following earlier decisions of the Tribunal and the Federal Court, s 237 is interpreted and applied in the following manner (see esp. Dann v Western Australia, (1997) 144 ALR 1, Dann (Unggumi Ngarinyin)/State of Western Australia/GPA Distributors Pty Ltd, NNTT WO95/19, Hon CJ Sumner, 10 June 1997, pp 16-17. Also Yeeda & Ors/State of Western Australia/Glen Money & Robert Anderson, NNTT WO97/23, K Wilson, 15 September 1997, pp 7-8):
'In conducting an inquiry into whether a future act such as the grant of an exploration licence is an act attracting the expedited procedure the Tribunal will receive evidence of the community life of the native title parties, or sites of particular significance to them in accordance with their traditions, or major disturbance to any land or waters concerned. This evidence will usually be within the knowledge of the native title parties and in general will be produced by them.
Once evidence relating to any of these matters is produced, the Tribunal's task is to examine the nature of the act proposed to be done by looking at the rights and obligations conferred on the grantee party by the Mining Act and Regulations and other relevant legislation, including any terms and conditions to be imposed. If these rights and obligations permit the grantee party to carry out activities which make it possible for the interference or disturbance in s.237 to result from them, or expressed another way, which on a worst case scenario have the potential to result in the interference or disturbance referred to in s.237, then the expedited procedure is not attracted. In making its determination the Tribunal does not have regard to the actual intentions or proposals of the grantee party or to the manner in which Ministerial or departmental discretions are exercised or to the administrative practices of Government which are not contained in legislation.
Section 237(a) requires that the interference with community life be direct interference with community life which includes both its physical and spiritual aspects. Community life is not confined to people living in a particular locality but includes a community of native title holders who have customs, traditions and spiritual beliefs in common.
In s 237(b) the word 'particular' means special or more than ordinary.
Section 237(c) requires the Tribunal to make a value judgment about whether the activities permitted by the exploration licence make it possible for there to be major disturbance to land or waters concerned. The major disturbance is to be judged from the point of view of the general community but in doing so the Tribunal is obliged to have regard to evidence relating to the customs, traditions and culture of the native title party.
Prior to the decisions in Dann, s 237 of the Act was interpreted to mean that the Tribunal must make a predictive assessment of whether the future act including the exercise of any rights created, would or would not be likely to result in the interference or disturbance referred to. In WO95/19 (Dann at p 12) the Tribunal said that the critical difference between the original approach and the new test formulated by the Federal Court is that the Tribunal will no longer look at what is likely to, or will probably, happen as a result of the activities which the grantee party is empowered to carry out, but will look at what consequences are made possible. In Wilcox J's words (Dann v Western Australia, (1997) 144 ALR 1 at 4) 'The question will be determined, in effect, on a "worst case" scenario.' The Tribunal concluded (WO95/19 Dann at p 12):
'the majority view [of the Federal Court] does permit the Tribunal to have regard to legislation other than the Mining Act which regulates the manner in which the rights under an exploration licence may be exercised, but this does not extend to examining administrative practices (which can readily be changed) or the use of departmental or ministerial discretion (which by their very nature could be exercised so as to permit the interference or disturbance referred to in s.237).'
The Tribunal's determination in WO95/19 (Dann) considered the effect of the new test on exploration licences under the Mining Act 1978 (WA). These matters, for the first time since the new test, deal with the grant of permits for petroleum exploration.
THE NATURE OF A PETROLEUM EXPLORATION PERMIT
A permissible future act includes a non legislative act that might affect native title, which takes place on or after 1 January 1994 and which could be done if the native title holder instead held ordinary (usually freehold) title to the land concerned (ss 233 and 235). The grant of a permit for petroleum exploration under the Petroleum Act 1967 (WA) is the creation of a right to mine and therefore a permissible future act covered by the right to negotiate provision of the Act (s 26(2)(b) and definition of 'mine' in s 253).
General
The Petroleum Act sets out the rights and obligations conferred on the holder of a petroleum exploration permit and is the principle statutory enactment which determines its nature. Of potential relevance are the following:
'Rights conferred by permit
38. A permit, while it remains in force, authorizes the permittee, subject to this Act and the regulations and in accordance with the conditions to which the permit is subject, to explore for petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area.'
There are no regulations relevant to consideration of this issue.
Section 39 provides that a permit remains in force initially for a period of six years and in the case of renewal over a reduced area for a further period of five years.
'Conditions of permit
43.(1)A permit may be granted subject to such conditions as the Minister thinks fit and specifies in the permit.
(2)The conditions referred to in subsection (1) may include conditions with respect to work to be carried out by the permittee in or in relation to the permit area during the term of the permit, or amounts to be expended by the permittee in the carrying out of such work, or conditions with respect to both of those matters, including conditions requiring the permittee to comply with directions given in accordance with the permit concerning those matters.'
The following conditions and endorsements will be imposed:
'1. (2)The permittee shall not commence any works of petroleum exploration operations in the permit area except with, and in accordance with the approval in writing of the Minister for Mines or of a person authorised by the Minister for Mines to give that approval.
...
2.The permittee shall not recover any petroleum from the permit area except as a result of production testing of a well.
...
4.The permittee shall not construct any installation or install any equipment in the permit area except with and in accordance with the approval in writing of the Minister for Mines or a person authorised in writing by the Minister for Mines to give that approval.
5.The permittee shall not abandon, suspend or complete any well except with and in accordance with the approval of the Minister for Mines or of a person authorised by the Minister for Mines to give that approval.
6.The permittee shall at all times comply with
(a)the provisions of the Act and of any regulations for the time being in force under the Act; and
(c)all directions given to him under the Act or the regulations for the time being in force under the Act.
7.In carrying out its operations in the permit area the permittee shall take adequate measures for the protection of the environment and shall comply with all Directions of the Minister for Mines in relation thereto.
Endorsements
1.In addition to any specific conditions that are endorsed on this instrument, the holder in exercising the rights granted herein must first ensure that all necessary consents and permissions have been obtained and applicable compensation has been agreed to or determined and that consultation has occurred where the lawful rights of other land users and occupiers are concerned so that the activities of those other land users and occupiers are not interfered with to a greater extent than is necessary for the reasonable exercise of the rights and performance of the duties of the holder of this exploration permit.
2.The permittee's attention is drawn to the provisions of the Aboriginal Heritage Act 1972.'
Section 99 provides that the Minister may cancel the permit (or part of it) where the permittee has not complied with a condition. Breach of an endorsement does not lead to liability for cancellation but may lead to enforcement action under other legislation.
The Petroleum Act does not contain an equivalent to s 66 of the Mining Act which specifies in detail what rights are conferred by an exploration licence for minerals. Accordingly, it is necessary to consider what is permitted to be done as a matter of practice. This does not involve an assessment of what is likely to happen in a particular case, but what 'operations' and 'works' may be necessary generally for the purpose of exploring for petroleum.
Evidence of what may be involved in petroleum exploration was before me. It begins with the acquisition and review of existing data and may be followed by the use of aircraft for an aeromagnetic or gravity survey. Operations on the ground involve seismic surveys and test drillings. The Report by the Department of Minerals and Energy, Western Australia ('the DME') on Administration of Petroleum Titles in Western Australia and Offshore Areas gave examples of work programs for petroleum exploration over five years. One example involved data review in the first year; seismic reprocessing and reinterpretation and a 4,000 km Aeromagnetic and Airborne Gravity Survey in the second year; a 200 km Seismic Survey in the third year; and one exploration well in each of the fourth and fifth years. The Report estimated the approximate duration of the ground only component of the field work at 12-13 weeks, i.e. 5% of the five year permit term.
The proposed work programme for petroleum exploration permit 1/97-7 (WO97/97) is data acquisition and technical review in the first year; 70 kms of seismic reprocessing and seismic interpretation in the second year; technical evaluation and prospect definition in the third year; 50 kms of seismic acquisition and seismic interpretation in each of the fourth and fifth years; and technical evaluation and prospect definition in the sixth year.
The proposed work programme for petroleum exploration permit 2/96-7 (WO97/99) over six years also involved an acquisition and review of data, separate seismic surveys of 50 kms and two of 100 kms and the drilling of three exploration wells.
It is important to emphasise that what is actually proposed by the grantee parties is not what is to be examined by the Tribunal to determine whether the petroleum exploration permit causes the interference or disturbance referred to in s 237 of the Act in this case (this follows from the Federal Court decision in Dann). What is actually proposed can only be relevant as an example of what is authorised to be done by s 38 of the Petroleum Act. This means that the Tribunal cannot have regard, for instance, to the fact that the grantee party in WO97/97 does not presently intend to drill any exploration wells. The petroleum exploration permit authorises such activity and it is what is made possible according to the nature of the permit which must be considered.
The Tribunal has previously given consideration to what activities may be involved in petroleum exploration. Pursuant to s 146 of the Act I adopt the findings of the Tribunal in Nyungah People/State of Western Australia/Empire Oil Company (WA) NL and Amity Oil NL, GeoPetro Co, Ensign Operating Co & Seven Seas Petroleum Inc, NNTT WO95/29, WO95/32, WO95/36 and WO95/37, Hon Paul Seaman, QC, 30 April 1996 at pp 25-27 in relation to what is involved in seismic surveys and test drilling.
'A set of trucks with vibrator pads are used to generate a seismic signal which sends sound energy into the earth which is reflected off different layers of rock back to the surface, the returning energy being received by small geophones planted in the ground which are connected by cables to a recording truck containing a computer system which records the information. The vibrations last between 7 and 20 seconds and involve a low volume whirr or hum, and are not felt on the surface beyond about 10 metres from the source.
In addition a small truck-mounted rig is used to drill holes about 12 centimetres in diameter and usually between 20 and 200 metres deep to collect information about surface layers. A geophone is put down the hole to record a seismic signal generated by dropping a small weight off the back of a vehicle. Then the holes are filled in.
The exploration is likely to occur along lines of several kilometres in length laid out parallel to each other or in the form of a grid with spacing between them of between 2 and 5 kilometres. On uncleared land a single track may be used to provide access down the line for the trucks and this is created either by using a roller dragged from behind a tractor or by using a dozer blade to clear away the vegetation from above the surface. In the latter case the top soil is not removed and plant and root stalk are left in the ground.
The trucks and personnel involved progress slowly along the line of exploration commonly recording between 7 and 10 kilometres a day.
Petroleum wells are drilled using a rotary drilling system sometimes penetrating several kilometres below the surface. During drilling mud is pumped down the drill hole to keep the bit cool and circulate the rock cuttings to the surface. A drilling operation generally consists of a rig with its drill floor derrick generators, pump control centres and pipework, together with a pit for the drilling mud and a hut for the geologists who are assessing the drilling, storage areas, accommodation and access roads. Access suitable for a heavy vehicle is required and to reach a drill site a new road may be constructed.
The drilling site facilities generally cover an area of between 60 x 60 metres and 100 x 60 metres, involving a campsite for the crew. The area is usually cleared of surface vegetation and the topsoil is removed and retained and the ground is levelled. A crushed rock pad is prepared for the derrick to stand on and a 10 x 20 x 3 metres sump is prepared to contain waste fluids from the well. The mud is water-based with natural clays added together with chemicals to increase the gel factor. A well is commonly drilled in 20 to 60 days and once it has been completed the area is rehabilitated. However in the south-west of the State road verges are regularly used as seismic lines as are forest firebreaks and existing forest roads. This is considerably cheaper than using machinery to clear a line. In a forested area it might be cheaper to explore by drilling a well.'
Once a well is completed and not to be used for production, the site and any road used for the drilling rig or any special purpose access road is rehabilitated if not otherwise required. All buildings and equipment are removed, as is any rubbish. The gravel used to prepare the rig pad is removed, the area is ripped and the top-soil is returned to allow re-vegetation. The drill hole is sealed and marked, drill cuttings removed and the sump left to evaporate, after which it is re-vegetated. A fence is usually erected to prevent access to the sump by stock or wildlife during the dry out process.
In addition it is possible that the seismic testing will be carried out by the use of explosives. Although on the evidence this is unlikely, it is contemplated as a possibility by the Guidelines for Onshore Petroleum Geophysical Surveying which the explorer is directed to comply with by the Minister (see below). For instance, minimum distances from fixed improvements to the explosive source are suggested.
Exploration activity may also involve obtaining water from existing water sources such as rivers or in some locations from drilling bores.
Section 95 of the Petroleum Act provides that the Minister may by instrument in writing served on the registered holder of a permit ('the permittee') give a direction as to any matter with respect to which regulations may be made. The Minister has delegated his powers under this section to the holder of the office of Director, Petroleum Operations Division in the DME. On granting the petroleum exploration permit the permittee is directed to comply with the requirements set out in the Schedule to the Directions entitled Schedule of Onshore Petroleum Exploration and Production Requirements - 1991. Part VII of the Schedule (para 702) requires the permittee to carry out all geophysical and geological surveys in accordance with the Guidelines for Onshore Petroleum Geophysical Surveying which are attached as Appendix I. By virtue of Condition 6 to be imposed on the permit (see above) the permittee is obliged to comply with these directions. Section 99 provides that the permit may be cancelled for a failure to comply with a condition or a direction of the Minister given under s 95. Further, s 95(6) makes it an offence to fail to comply with the directions.
For this reason, I consider that the directions are part of the regulatory regime which can be taken into account in making a decision about the nature of a petroleum exploration permit and whether what is authorised to be done under it creates the possibility that the interference and disturbance referred to in s 237 of the Act will occur.
The Schedule contains detailed directions about the manner in which exploration is to be carried out and covers safety, the operation of electrical installations, the use of explosives, requirements for drilling and geophysical and geological surveying and reporting requirements for exploration titles.
The Government party relied particularly on paras 114 of the Schedule:
(a)clause 114(1) provides that an operator shall ensure that operations are carried out in a manner that avoids or, where not practicable, minimises any adverse impact on the environment.
(b)clause 114(2) provides that, unless alternative arrangements are established to the satisfaction of the Director of the Petroleum Division of the Department of Minerals and Energy, the operator must, at least 3 months (6 months in an environmentally sensitive area) before the commencement of a drilling program, submit to the Director a proposal document to initiate the environmental impact assessment process in accordance with the Environmental Protection Act 1986 (WA).
(c)clauses 114(3) provides that before an operation is commenced the operator must have an approved code of environmental practice relevant to the area of operations containing an outline of the procedures that are proposed to:
(i)minimise hazards to the health and well-being of persons working in the operation, and the public generally;
(ii)protect wildlife, livestock, flora and sites of natural historical or cultural significance.
(iii)Minimise disturbance of the land surface; and
(iv)clean up any areas disturbed by the operation and, if there is no proposal for the subsequent development of the land, to leave the land in a state that will facilitate its restoration;
(d)clause 114(4) provides that the grantee party must ensure that all of its employees and contracts comply with an approved code of environmental practice, in the absence of specific directions the operations shall be carried out in accordance with the APEA code of Environmental Practice; and
(e)clause 534 provides that insofar as is possible or necessary a well site area shall be restored to its former condition and if any part of a wellhead if left above ground level, it shall be adequately fenced. Mousehole and rathole shall be plugged at surface.
The Government party also referred to the Guidelines for Onshore Petroleum Geophysical Surveying. It argued that these guidelines are designed to assist grantee parties maintain suitable standards that minimise environmental damage and that adherence to the guidelines ensures compliance with all relevant legislative requirements. The Guidelines are divided into five sections:
(i)legislative requirements – outlines the regulatory context in which a petroleum title is issued and lists the legislation which could impact on petroleum operations;
(ii)operational planning and management – refers to the possibility of requiring expert environmental advice and how exploration programmes should incorporate methods that minimise adverse effects to the environment and ensure no long-lasting evidence of activities. This includes the avoidance of sites of Aboriginal, historical and heritage significance.
(iii)management of impacts – outlines the appropriate practices and standards for line orientation, line construction, rehabilitation, access tracks, fire control, disease and weed control and general environmental considerations;
(iv)shortholes and energy source – covers the use of vibrators and explosives;
(v)campsites – deals with the location of campsites and disposal of waste products including kitchen and ablution waters, litter and rubbish.
The Government party contended that every phase of the exploration activity must receive environmental approval. Petroleum exploration is subject to the general environmental legislation and regulation applicable in Western Australia and in particular the Environmental Protection Act and the Conservation and Land Management Act 1984 (WA). A document entitled Environmental Information for Petroleum Operations in Western Australia is widely circulated throughout the industry by the Petroleum Division of the DME. This document outlines the desired environmental practice for petroleum operations.
The Environmental Protection Act requires that a proposal that appears likely to have a significant effect on the environment be referred to the Environmental Protection Authority ('the EPA') (s 38(1)). If it appears that there is public concern about the likely effect of a proposal on the environment, the Minister may refer the proposal to the authority (s 38(2)). When a proposal is referred, the EPA must decide whether it should or should not be assessed (s 40(1)). If it decides that it should not be assessed, it may still give advice and recommendations to any decision making authority on the environmental aspects of the proposal (s 40(1)(a)). If a decision is taken formally to assess the proposal the EPA can require information to be provided, require a proponent to undertake an environmental review and report to the EPA, or, with the approval of the Minister, conduct a public inquiry (s 40(2)).
After completing its assessment, the EPA must prepare a report for the Minister on environmental factors and any conditions to which the proposal should be subject (s 44(1)) and the report is published (s 44(2)). After publication the Minister consults with other interested Ministers or authorities with a view to reaching agreement about the implementation of the proposal and the conditions to which it should be subject (s 45(1)). The Governor is empowered to make a final decision in the event of disagreement between Ministers (s.45 (2)). In the event of disagreement between the Minister and other authorities an appeal committee process is provided for (s 45(3)). Enforceable conditions may be imposed on the implementation of the proposal (s 45(5)). Permission for the proposal may be refused (s 45(8)).
Condition 1(2) to be imposed on the permit requires that before any works are commenced on the permit area, the Minister or his delegate must give approval to them. Clause 114(2) of the Schedule requires a permittee who wishes to commence drilling to submit to the Director of the Petroleum Division of the DME a proposal document to initiate the environmental impact process in accordance with the Environmental Protection Act, such proposal to be provided at least three months before commencement or at least six months before commencement in environmentally sensitive areas.
A Memorandum of Understanding between the EPA and the DME on the Petroleum Proposals Referral Policy sets out the arrangements between them with regard to seismic surveys and exploration drilling in national parks, nature reserves or proposed conservation reserves. In these cases the proposal will be formally referred to the EPA on the basis that the proposal is likely to have a significant effect on the environment. In most other cases the proposals are not formally referred to the EPA but are notified to them by the DME. The EPA may make comment on the proposal and suggest conditions to be imposed and if it considers it necessary has the power to request formal referral of the proposal to it pursuant to s 38(3) of the Environmental Protection Act.
The Government party provided an example where the Department of Environment Protection had, after notification, commented to the DME and the permittee about amendments to the permittee's environmental management plan (which was submitted in conformity with Clause 114(3) of the Schedule). The permittee amended its plan to take account of these comments and approval was then given by the DME to the application.
Whether or not a proposal is formally referred to it, it appears that the practice of the EPA when considered necessary is to give advice and make recommendations to the DME about conditions to be imposed. The process of formal assessment is not usually regarded as necessary for petroleum exploration.
There are special standard conditions which are imposed for petroleum exploration in conservation lands managed by the Department of Conservation and Land Management ('CALM') which include, for instance, national parks, conservation parks and nature reserves. They impose a joint management regime between DME and CALM and are designed to minimise environmental damage and ensure rehabilitation to acceptable standards.
In summary, in the case of petroleum exploration environmental issues are dealt with on a cooperative basis between the DME and EPA and where relevant CALM. As a matter of general practice, the environmental approvals required by the Conditions imposed on the permit and the Directions under s 95 are given by the Director, Petroleum Operations in DME after following the procedures outlined above.
I have outlined the legislation, ministerial directions and environmental controls applicable to petroleum exploration for the purpose of deciding what rights and obligations are conferred on a permit holder. The essential nature of a petroleum exploration permit is determined by s 38 of the Petroleum Act which authorises the activities which I have described. The Conditions and Ministerial directions given pursuant to s 95 undoubtedly control the manner in which those activities are carried out and amongst other things attempt to minimise environmental damage. However, the system of controls relies on administrative approvals from the Minister and Departmental officers which will vary from case to case. The circumstances in which petroleum exploration is prohibited would be rare. Despite the controls imposed by virtue of the conditions imposed and directions given, the permittee is authorised to carry out such operations and execute such works as are necessary for the purposes of petroleum exploration. Even if the permittee complies with all the legal obligations imposed, the permit still authorises such activities as the use of trucks and small drills, rollers or bulldozers to clear lines, larger drilling rigs for exploration wells, a campsite and the construction of an access road. The factors in s 237 of the Act must be judged by reference to these activities.
Land tenure
The nature of a petroleum exploration permit can change depending on the land tenure involved.
Section 16 of the Petroleum Act prohibits carrying out exploration at certain places:
'16.(1)A permittee, holder of a drilling reservation, lessee or licensee shall not explore for, or carry out operations for the recovery of, petroleum or enter upon, for that purpose, any land that is comprised in the permit, drilling reservation, lease or licence of which he is the holder and that is —
(a) private land not exceeding 2 000 square metres in extent;
(b) used as a cemetery or burial place;
or
(c) at a less distance than 150 metres laterally from any cemetery or burial place, reservoir or any substantial improvement,
unless the consent in writing of the owner of the land, or the relevant cemetery board or local government authority, as the case requires, has been first obtained.
(2)For the purposes of this section —
(a) “reservoir” includes any natural or artificial storage or accumulation of water, spring, dam, bore, and artesian well;
and
(b) the Minister is the sole judge of whether any improvement is substantial.'
It is obvious that this section was not designed with the protection of native title in mind. In my view it will be of little relevance in assessing whether a petroleum exploration permit authorises activities offending s 237.
'Private land' in s 5(1) is defined as freehold or leasehold land except a pastoral lease within the meaning of the Land Act 1933 (WA) or a lease for grazing purposes only or a timber lease or a lease for the use and benefit of Aboriginal inhabitants. Land under native title claim, or even land in relation to which native title has been determined to exist, is not private land within this definition. The limited protection available to private land holders by s 16(1)(a) is not available to native title parties.
The section seems to presuppose the existence of a controlling body for a cemetery or burial place, thus suggesting that the section is not designed to cover Aboriginal burial places. Because it is problematical whether Aboriginal burial sites are covered by the section, I do not intend to have regard to this aspect of s 16 in assessing the nature of the petroleum exploration permit. Even if it were clear that exploration on Aboriginal burial sites was prohibited, this is only one category of potential sites of significance referred to in s 237(b) which are covered.
The protection provided by s 16(1)(c) with respect to reservoirs may in some cases incidentally assist native title parties in ensuring that the interference or disturbance in s 237 does not occur, but is not likely to be of great practical effect. The prohibition on exploration within 150 metres of any substantial improvement may be taken into account in deciding whether there is interference with the community life of the native title party (s 237(a)) in the case of exploration near established communities with substantial improvements on the land. The section is unlikely to cover Aboriginal communities living in bough houses and its effect is weakened by s 16(2) which makes the Minister the sole judge of whether an improvement is substantial.
Further, any incidental protection afforded to native title parties by this section is weakened by the fact that consent to exploration can be given by the owner of the land who, except in the case of established Aboriginal communities, is not likely to be the native title party.
Given the nature of the petroleum exploration described above which occurs over relatively large areas of land of different types, I am of the view that the protection afforded by s 16 will not generally be relevant or of any importance to a determination.
Land tenure in WO97/97
The permit area in WO97/97 is comprised of:
(a)pastoral lease;
(b)special lease;
(c)reserve land for the following purposes:
(i)water;
(ii)water and stopping place;
(iii)sand and shingle for government requirements;
(iv)common for travellers and stock;
(v)stopping place for travellers and stock;
(vi)water plus parklands and recreation;
(vii)watering place;
(viii)use and benefit of Aborigines
(ix)Kimberley De Grey Stock Route;
(x)stock route Fitzroy Crossing to Nobbys Well;
(xi)resting place for travellers and stock;
(xii)recreation;
(xiii)quarry Main Roads Department;
(xiv)gravel; and
(xv)repeater station site;
(d)freehold;
(e)vacant Crown land; and
(f)a license to occupy pastoral land.
By s 15(1) of the Petroleum Act, the authority conferred by s 38 on a petroleum exploration permit holder is exercisable on the permit area whether it is Crown land or private land. The definition of 'Crown land' in s 5(1) includes all land which has not been dedicated to any public purpose or reserved; land which is not held under lease for any purpose except a pastoral lease within the meaning of the Land Act or a lease for grazing purposes only, or a timber lease or a lease for the use and benefit of Aboriginal inhabitants. 'Crown land' includes any land which has been reserved under the Land Act for public utility or for commons for the use of the inhabitants or any town or settlement, State forests and timber reserves within the meaning of the Conservation and Land Management Act and any reserve declared under s 15(2) to be Crown land for the purposes of the Petroleum Act.
By s 15(2), the Governor by proclamation may declare that any Crown land reserved for or dedicated to any public purpose that is not Crown land within the meaning of that expression in s 5, is Crown land for the purposes of the Petroleum Act, so long as the proclamation remains in force. A proclamation made under s 15 (2) does not otherwise affect the purpose for which the land was reserved or dedicated and may at any time be revoked or varied.
Proclamations pursuant to s 15(2) of the Act have been made in respect of Reserves numbered 1834 (use and benefit of Aborigines), 9697 (Kimberley De Grey Stock Route) and 23226 (Stock Route Fitzroy Crossing to Nobby Well), making them Crown land for the purposes of the Petroleum Act and therefore part of the permit area.
Although exploration is permitted over Reserve numbered 1834 for the use and benefit of Aborigines, the Petroleum Act in s 7(2) specifically preserves the application of s 31 of the Aboriginal Affairs Planning Authority Act 1972 (WA). This section limits access to Aboriginal reserve land to certain specified persons or to a person authorised under the Regulations. Regulation 8 provides for permission to enter the reserve to be granted by the Minister of Aboriginal Affairs subject to conditions and with a power of revocation. Evidence of the administrative practice of the Government party in granting permission to enter has been before the Tribunal in previous matters (see e.g. Irruntyju-Papulankutja/State of Western Australia/Broadmeadows Pty Ltd, NNTT WO95/7, Hon Paul Seaman QC, 6 October 1995). The Tribunal found that the Minister for Aboriginal Affairs is not likely to give mineral explorers permission to enter an Aboriginal reserve without consulting the Aboriginal Land Trust, who in turn will consult with the Aboriginal community on the reserve. As a matter of general practice the Minister does not grant permission to enter until agreement has been reached between the explorer and the Aboriginal community on the conditions of access. The agreement may include, for instance, provision to ensure the protection of Aboriginal sites.
I find that the same general practice would apply in the case of petroleum exploration and that the Minister will probably not grant permission to enter under Reg 8 until appropriate agreements are in place between the explorers and Aboriginal community.
The previous determinations of the Tribunal were that the expedited procedure was attracted in these circumstances because the native title party (where it was the same group as the local Aboriginal community) would be able to ensure by agreement, before a permit was granted by the Minister, that none of the interference or disturbance referred to in s 237 would occur. As a result of the Federal Court decision in Dann this conclusion is no longer justified. The Tribunal must now look at what the regulatory regime makes possible. In doing this it is entitled to examine other relevant legislation in addition to the Petroleum Act, which assist in defining the rights and obligations conferred on the grantee party. However, it can only ascertain the nature of the act and what is permitted by the legal regime in place, which can include relevant Acts and regulations, proclamations in some circumstances, but which cannot include an examination of administrative practices which involve the exercise of Ministerial or departmental discretions. The regulations under the Aboriginal Affairs Planning Act give the clear authority to the Minister for Aboriginal Affairs to grant permission for entry on Aboriginal reserve land. The only legal constraint is an obligation (Reg 8(3)) to consult the Aboriginal Land Trust and to report to Parliament in the event of a material difference between the decision of the Minister and the views expressed by the Aboriginal Land Trust. Apart from this the discretion is unfettered.
The administrative practices adopted by the Western Australian Government are no longer sufficient to ensure that the grant of a prospecting or exploration licence for minerals or of a petroleum exploration permit over land reserved for the use and benefit of Aboriginals under the Land Act does not cause the interference or disturbance referred to in s 237. To achieve this objective it seems that the Act or regulations would need to be amended to require an agreement before a permit was granted.
Of the remaining reserved land, in relation to which there have been no proclamations pursuant to s 15(2) of the Act, the following reserves do not come within the definition of 'Crown land' or 'private land' and hence the grantee party is not permitted to carry out any activity in relation thereto:
Reserve numbered 37014 (recreation)
Reserve numbered 40277 (use and benefit of Aborigines)
Reserve numbered 39165 and 40778 (repeater station site)
In general, proclamations made by the Governor can be revoked. In this matter it would be possible for a further proclamation to be made to include the land currently excluded as Crown land.
The extent to which proclamations can be taken into account in determining what is made possible by the grant of a mining or petroleum tenement has not been considered by the Tribunal. Can they be considered in the same way as an Act of Parliament or regulation in defining the rights given, or are they more akin to an administrative discretion, which can be altered at will by the Governor? Unlike regulations, there is not usually any Parliamentary supervision of them. It is not necessary to pursue this matter on the facts of this case. Revoking the proclamation would only reduce the permit area. While a proclamation could be used to add areas to the permit, the Government party has given an undertaking that if it proposed to add the currently excluded area, it would utilise the right to negotiate provisions of the Act.
It is clear that exploration will be permitted on most of the land within the permit area.
Land tenure in WO97/99
In WO97/99 the permit area only comprises land which is held under a pastoral lease or is vacant Crown land and the exploration activity can therefore occur over the whole area.
WO97/97 - PAUL COX & OTHERS/STIRLING RESOURCES NL, BASIN OIL NL, FIRST AUSTRALIAN RESOURCES NL, AUSTIN OIL INTERNATIONAL NL, MOONDANCE ENERGY PTY LTD, INDIGO OIL INTERNATIONAL LTD, PELSOIL NL and GULLIVER PRODUCTIONS PTY LTD - PEP 1/96-7
(a) The facts
General
The State of Western Australia (the 'Government party') proposes to grant exploration permit for petroleum 1/96-7 to Stirling Resources NL, Basin Oil NL, First Australian Resources NL, Austin Oil International NL, Moondance Energy Pty Ltd, Indigo Oil International Ltd, Pelsoil NL and Gulliver Productions Pty Ltd (the 'grantee party') over 4000 square kilometres from approximately 40 kms NW of Derby (King Sound), extending south easterly for approximately 150 kms to the Erksine Range in the Shires of Broome, Derby and West Kimberley. It is possible that some of this area is not in fact onshore, i.e. within the limits of the State and therefore not subject to the right to negotiate provisions of the Act. Given my overall findings and conclusions, this is of no importance in this case.
The Government party gave notice in accordance with s 29 of the Act of its intention to grant the petroleum exploration permit and included in the notice a statement that it considered that the grant is an act attracting the expedited procedure.
Paul Cox, Laurie Cox, Matthew Cox, Carmel Charles, May Charles and Maude Ninjana are registered native title claimants and, together with others connected to the claim area in accordance with their acknowledged laws and customs and who describe themselves as Nimanburr or Nyigina, claim to hold native title in relation to all of the land and waters the subject of the proposed petroleum exploration permit pursuant to registered native title determination application WC97/36 lodged and registered within two months of the Government party giving notice of its intention to grant the petroleum exploration permit and are therefore 'a native title party'.
Within two months of the Government party giving the notice under s 29, the native title party made an application to the Tribunal objecting against the inclusion of a statement that the grant of the exploration permit is an act attracting the expedited procedure.
The petroleum exploration permit is to be granted subject to the standard conditions and endorsements referred to above.
Native Title Party
The native title party produced affidavit evidence from George Reilly and Daisy Lungunan. Both are elders of the Nyikina (Nyigina) people who have the right to speak for the members of the native title claimant group in relation to Nyikina country, a large part of which is covered by the proposed petroleum exploration permit. They are not opposed to mining or petroleum exploration and have worked with companies previously. They believe that the explorers and miners should talk to them first about what is proposed and to ensure that exploration avoids places of importance to them.
In Ms Lungunan's words:
'We want the mining company to come and talk to us so they don't go in the wrong place ... We respect their culture, they should respect ours.'
There are a number of places along the river which runs through Yeeda Station and other creeks where it is possible to get fresh water all year round and which the claimants do not want mucked up by the mining company.
On the question of the importance of certain places I accept what Ms Lungunan said:
'There are other places that go along the creeks, around the swamp areas and the yungu soaks where our people used to get water from when they were walking around - Wilarn creek, Lirrban, Kulura, Mariyan, Nabi's well, Mankijarra, Mangkuwila, Milmila. Our old people were born and lived in all this country. Our rayi - spirits come from here. Where people are born are important places. For all these places we've got plenty of stories. At Murrumurru there's a story for wunyanburr - a sacred bird.
Some of these places are maliji places - you call 'em sacred places. They are danger places .. sometimes with ngari - dangerous spirits there, and you shouldn't go there or disturb them.
Near Dambarlkurtany, there's a corner there where nobody is allowed to go. Even the musterers from the station - they used to go around and shoo the cattle the other way. In the old days the stockmen and the managers would follow that law. It is dangerous and we're frightened that people who go there will get sick, and we'll get sick.
You shouldn't go to Mankajarra swamp without knowing where to go, especially if you're hunting. There are parts where you can't even touch the leaf, or break the branches, or hit the trees. You have to be very careful.
Some of these yungu (soaks) are where people make rain. There are other places where they have ochre. We don't want the mining mob to take away those rocks.
We have to look after these places, not destroy them, so that we can teach our young people the proper way.'
I accept the evidence of Mr Reilly:
'If a stranger comes into our country we would welcome them. No. They can't just walk in, they would have to come and see the head man first, to sort out who they were, to see if he was family. Then they would show him where to go, and keep him away from where he couldn't go.
In the early days the miners used to do this. Like those gold miners in Halls Creek. They used to ask where they could go. Blackfella would say don't go there or you'll get killed, don't touch that stone. Its that serious and its still like that now. That's in the Law. He's not supposed to put his foot there, that's the Law. He's got to come to the right place, to the camp. And then, might be the next day, we might take them out.'
Another affidavit was produced from Paul Cox. He is a Nimanburr person, who has a right, on behalf of the elders, to speak for Nimanburr country, part of which will be covered by the petroleum exploration permit. Their country includes the Walunjur outstation, the Fraser River and parts of King Sound sea area, which is covered by the petroleum exploration permit. There are many small community outstations in the area. The Nimanburr people rely heavily on seafood and bush tucker and regularly go hunting and fishing through their country. Members of the community are taken there and told stories about the country and history. They are not opposed to mining exploration but wish to be consulted about it. They have a traditional right to look after the country and make sure that their sites of significance, cultural areas, living areas and food areas are protected. Mr Cox asserts that exploration involves the creation of cut lines and test holes which create problems during the wet of washouts and cave-ins, resulting in health problems for the Nimanburr people. He is concerned that if mining companies don't restore the area it is dangerous to live in. They do not want the companies to travel over their country through outstations, camps and important sites without speaking to them first.
I accept Mr Cox's evidence that there are many sites of significance in the area of the petroleum exploration permit including camp sites, burial grounds and cultural areas. The Nimanburr people don't want these sites disturbed.
Sites
A search carried out by the Aboriginal Affairs Department of an area which includes, but is somewhat larger than, the petroleum exploration permit reveals 42 listed Aboriginal sites, 10 have an 'Open' access code, which means that information on the sites is available on request. The department acknowledges that this may not be a complete list of all sites. The remaining 32 sites have a 'Not Open' access code which means that information is not available without the prior approval of Aboriginal informants. Many have a designation of 'Significant'.
When considered with the evidence of the native title claimants, I have no hesitation in finding that there are sites of particular significance to the native title party in accordance with their traditions on the area of the proposed petroleum exploration permit.
(b) Conclusions
Community life
It is not necessary to consider whether the grant interferes with the physical aspects of the community life of the native title party.
In considering whether the grant of the petroleum exploration permit directly interferes with the spiritual aspect of the community life of the native title party, the Tribunal considers whether there is evidence of an active community life in relation to the land, a spiritual connection to and responsibility for it, evidence that custodians could get into trouble if they do not look after land properly and that the community will be worried or upset by unauthorised activities on it, such that there will be fear of illness or death if it is interfered with. The activities authorised by a petroleum exploration permit include seismic surveys, including clearing and drilling, test well drilling, including the establishment of sumps and the establishment of campsites for exploration workers.
In my view this sort of activity creates the potential for interference with the spiritual aspects of the native title party's community life. The evidence discloses that the land is important to them, and there is serious concern about exploration activities not authorised by their law.
Sites
In decisions which followed the Full Federal Court decision in Dann the Tribunal has considered whether the legislation in place in Western Australia is sufficient to ensure that there can be no interference with sites of particular significance from mineral exploration. In WO95/19 Dann (at pp 23-25) the Tribunal concluded that it was not.
Similarly, it is obvious that the activities which I have found are authorised by a petroleum exploration permit could cause interference with sites. Although the Aboriginal Heritage Act 1972 (WA) generally prohibits interference with sites both the Registrar of Aboriginal Sites and the Minister for Aboriginal Affairs are given a discretion to permit interference. Because of the existence of this discretion the Aboriginal Heritage Act does not provide a complete protection for Aboriginal sites and on a worst case scenario creates the possibility that they will be interfered with.
Accordingly, I find that the grant of the petroleum exploration permit does interfere with sites of particular significance in accordance with their traditions to the native title party.
Major disturbance
It is not necessary to make a finding on this point. A petroleum exploration permit authorises considerable disturbance to land, although the manner of disturbance is regulated by the environmental controls described above. It is probable that the degree of disturbance permitted is less than that authorised by s 66 of the Mining Act which allows the removal of 1,000 tonnes of material from the land and authorises the Minister to approve an unrestricted greater amount over the term of an exploration licence which may extend beyond nine years.
Even so, it is not now possible for the Tribunal to consider environmental controls which rely on administrative discretion. It must consider what is made possible by the grant. I think it is clear that it would be open to the Tribunal, depending on the location of the land and the attitude of the native title parties to its disturbance, to conclude that a petroleum exploration permit does cause major disturbance to land.
(c)General Conclusion
The grantee party in WO97/97 made submissions which I comment on by way of a general conclusion.
Firstly, the grantee party was concerned that during the two month notice period the Kimberley Land Council, representing the native title parties, did not contact them, although several other Aboriginal groups did. The grantee party believes that there are conflicting native title interests in relation to the area of the permit and that people who occupy the lands in questions do not wish to object to the expedited procedure. It argued that it would be a great disservice to the people and communities within the permit area if the Tribunal ruled that the expedited procedure did not apply. The Tribunal is obliged to deal with these matters according to the procedures laid down in the Act and cannot get involved in broad policy issues. Different approaches to the expedited procedure from Aboriginal people have not been uncommon and in some cases there have been overlapping claims to native title. The Tribunal cannot take these matters into account in these inquiries. Once there is a registered native title claimant who has objected to the expedited procedure, the Tribunal must conduct an inquiry and examine the evidence in relation to the relatively narrow issues specified in s 237. It must do this even if there are other registered native title claimants who have not lodged objection and do no wish to negotiate about the exploration.
Secondly, the grantee party submitted that the policy of the Native Title Act was that native title holders should be treated in the same way as other title holders and that the Petroleum Act does not provide other title holders with a procedure for an objection or hearing prior to the grant of a petroleum exploration permit. Again, this is a matter of policy which the Tribunal cannot consider. The Native Title Act specifically provides for a right to negotiate for certain future acts including the grant of a petroleum exploration permit.
Thirdly, the grantee party submitted that native title has not been proven to exist over the relevant land. Again, this raises a matter of policy and is a factor which cannot be considered in these proceedings. The objects of the Act (s 3(a)) include providing for the protection of native title. The future act and right to negotiate provisions were designed to further that objective. The Parliament has determined that one way of ensuring that native title is protected is to extend the right to negotiate to claimants as well as holders of native title.
Fourthly, the grantee party contended that the expedited procedure should apply without exception to the grant of petroleum exploration permits. There can be none of the interference or disturbance referred to in s 237 resulting from this type of grant. The grantee party argued that only limited activity under strict guidelines is authorised by a petroleum exploration permit, particularly when compared with the much broader activities permitted by mining or petroleum production; petroleum exploration is transient and relatively non-intrusive. The grantee party relied on the Conditions and Endorsements on the permit, various Acts of Parliament and administrative practices, some of which I have referred to above, to submit that none of the interference or disturbance in s 237 would occur. As a matter of practice it argued that exploration over the permit area has been conducted for many years, involving consultation and a mutually beneficial relationship with local communities.
For reasons already provided I cannot accept the grantee party's submission. Following decisions of the Federal Court (esp in Dann) the Tribunal now interprets s 237 by looking at what is permitted on a worst case scenario, by the legislation, regulations and permit conditions. If interference with community life, or with sites of particular significance or major disturbance to land is made possible by that regulatory regime, then the expedited procedure is not attracted. The Tribunal must also consider any interference with the spiritual aspects of community life and Aboriginal concerns about disturbance to land.
As a general conclusion, the practical effect in Western Australia of the current interpretation of s 237 is that the expedited procedure is now much less likely to be attracted when an objection is made. For example, in relation to s 237(b), if the evidence establishes that there are sites of particular significance to the native title party in accordance with their traditions on the relevant area, then the expedited procedure is not attracted. This conclusion is equally applicable to exploration and prospecting licences under the Mining Act and a petroleum exploration permit under the Petroleum Act. The activities authorised by all those grants clearly are capable of causing interference with sites and no conditions or legislation, including the Aboriginal Heritage Act absolutely prohibits it.
Finally, the grantee party voiced its dissatisfaction with the delay in dealing with this matter. The Federal Court has made it clear that objection to the expedited procedure applications should be processed by the Tribunal expeditiously. Where this doesn't happen, parties are entitled to an explanation.
Normally the Tribunal aims to hear and determine an objection application within seven or eight weeks of its lodgement. The objection application in this matter was lodged on 26 May 1997 and the target completion date has not been achieved. In part this was due to the grantee party agreeing to a postponement of the preliminary conference to enable it to consider whether it would agree to negotiate with the native title party and to delays by the Government party and native title party in providing their contentions and documents.
The fact that this is the first petroleum exploration permit matter to be considered by the Tribunal since the new test may also have contributed to delays. To some extent the Tribunal is governed by the attitudes and actions of the parties in trying to meet its time targets, but is mindful of its responsibilities to take all reasonable steps to complete its inquiries quickly.
(d) Determination
The determination of the Tribunal is that the grant of the petroleum exploration permit 1/96-7 to Stirling Resources NL, Basin Oil NL, First Australian Resources NL, Austin Oil International NL, Moondance Energy Pty Ltd, Indigo Oil International Ltd, Pelsoil NL and Gulliver Productions Pty Ltd is not an act attracting the expedited procedure. In accordance with s.32(5) of the Act, the Tribunal requests the Government party and the grantee party to negotiate in good faith with the native title parties with a view to obtaining their agreement to the doing of the act or the doing of the act subject to conditions to be complied with by any of the parties. In accordance with s.32(5) of the Act the Tribunal offers to mediate among the negotiation parties to assist in obtaining their agreement.
WO97/99 - DARBY NANGARIN & OTHERS/AUSTIN OIL NL - PEP 2/96-7.
(a) The facts
General
The State of Western Australia (the 'Government party') proposes to grant exploration permit for petroleum 2/96-7 to Austin Oil NL (the 'grantee party') over 4214 square kilometres 150 kms south of Derby extending easterly from longitude 123º degrees approximately 120 kms over the Edgar Ranges to longitude 124º4' in the Shires of Broome, Derby and West Kimberley.
The Government party gave notice in accordance with s.29 of the Act of its intention to grant the petroleum exploration permit and included in the notice a statement that it considered that the grant is an act attracting the expedited procedure.
Darby Nangarin, John Dodo, Peter Clancy and John Watson are registered native title claimants and together with others connected to the claim area in accordance with their acknowledged laws and customs and who describe themselves as Nyigina, Mangala or Karajarri claim to hold native title in relation to all of the land and waters the subject of the proposed petroleum exploration permit pursuant to registered native title determination application WC97/37 lodged and registered within two months of the Government party giving notice of its intention to grant the petroleum exploration permit and are therefore 'a native title party'.
Within two months of the Government party giving the notice under s.29, the native title party made an application to the Tribunal objecting against the inclusion of a statement that the grant of the exploration licence is an act attracting the expedited procedure.
The petroleum exploration permit is to be granted subject to the same conditions and endorsements as described in relation to WO97/97.
Native Title Party
I accept the affidavit evidence of Darby Narngarin who is an elder of the Nyikina and Mangala people and whose country includes the area of the petroleum exploration permit:
We've got lots of places - names for all the places right through, right along the river, all the waterholes. Names and stories and songs. These places, from the bugarrigarra, they've got something inside. Some places might be secret - we call them nirrbirri places. They might have rocks or stones - secret ones. Women and young fellas they can't go there. Its dangerous. These places are strong places, might be where they can make rain. Its our Law. These places have stories and we gotta look after it.
We know where they are. They are secret places and you can't go there without permission. It's a bit like gartiya [European] with their paddocks and fences. We can't go inside the paddock without permission, or they might put us in jail. You have to come and see the boss people first. That's us - me and Clancy and John Watson. We're the old people now and we know where they can and can't go. When they come in we can tell them. That's what I say. They gotta come and see us first. They have to have a meeting with all the old people first. We don't want them to go to our secret, nirrbirri places.
If they don't ask us, we feel sorry. We worry for the country. We have to look after it. We got to mind 'em, visit 'em and look em. Its hard if they don't tell us what they are doing and where they are going.
...
We like to know where they put things, where they go. We've got lots of waterplaces, rockholes, springs. We don't want them mucked up. Our old people are buried in some of those places along the ranges - you don't know where they might go in their cars, and with the graders. They make a big mess, and they don't fix it up. Cut lines, you can still see them after all these years. Especially in the desert - the bush doesn't grow back for a long time.
We still go out to these places - looking for things, show our young people, visit places, tell the histories, the hunting. We get bush tucker - we know the mayi (bush tucker) and all the guyi (meat). We don't want them to ruin these things. That's why we want to know what they're doing and to talk to them, to put them straight.'
I accept the affidavit evidence of John Watson who is a Nyikina man and who with two elders, Peter Clancy Dabirri and Darby Narngarin, have a right to speak for the area of the proposed permit:
'There are a lot of places out there - old waterholes, camp sites, springs, burial grounds, rock art and massacre sites. There are many ngurlu sites, but I don't want to say anything more about them here. Geegully (Jigali) was a major area where massacres occurred in the early days. When the Mangala people came in from the desert they came through this country - this was where the waterholes are. They came in for ceremonies - kadurranya (trading) time and ngurlu (initiation) time. People had big ceremonies and used to come from all over. There are important bugarrigarra (dreaming) places all through those ranges - with stories. We don't want the bulldozers going through there making cut lines everywhere. Who knows where they will go or what they will dig up.
Its not really safe for people to just go wondering around out there, and that's what these mining mob will do when they are working or just looking around. Its dangerous for them because they don't know where they are going. Its dangerous for us too because we are responsible for looking after the country, for those places and those burial sites. The country has been left to us and its supposed to be in good hands. We get in strife if we don't look after the country properly.'
I accept the affidavit evidence of Peter Clancy Dabirri:
'I knew all the old boss people for this area. They are my relations. s I grew up with the old people, I follow them and they taught me everything about the country. They tell me which way I should follow. I follow my father and mother. I follow my grandfather and my grandmother. They have passed away now, in the bush, but their spirit is still alive in the country.
They've passed away now and so they pass it on to me. I'm the old boss bloke now. This is my country and I have to look after all the ngarrangu (people). I know the stories and the songs. For example, there's one from Broome that travel through here. The old people pass that on to me. I know all the songs. This one is man's business, not woman's. This is our Law. It's our culture. We can't lose it.
Kartiya (white people) don't know these things. Our law is mapped out in the country. It's different from whitefella. Only we know it from our old people. They tell us. We can't lose that thing. We still look after it - that's my Law. That's our belief. And we have to pass it on to our young people. We must follow and keep that Law. We can't chuck it away. That's the Law too. That's the way we do it.
There are many places in the area covered by the permit. We have names for them - Milangarra, Yirrimany, Purrarrpurrarrngan, Gunbanykartinyan and Jilajartiny. These are some of the wangku (hills) in this area. Some of our people are buried there. One of my mothers, she's buried at Gunbanykartinyan (Mt Collins). That's my mother (her spirit) right there now! Mining companies and kartiya they don't know these things.
I know all the names of the wangku (hills) and rambalal (creeks). That's another thing. There is balal maria - a living water all through this area, along Jigali (Geegully Creek) - places where the water is all year round. These are important places to us - that's how we lived, knowing these things.
We've got all sort of bush tucker, mayi though this area. We lived off this - many trees give us seed - kalayan, lungkun, bilgalya; and grasses - ngutjana, kirdirr and karrjartu. Others, like dil give us fruits in the wet time. We have to look after these things. It's part of looking after the country. All the birds and animals live in these bushes, trees and grasses. We look after them too.
We don't like it if they come and muck up these places and these things, especially our special places. We can get sick with worry and it makes us feel no good. It's like they are digging up our own spirits. It's our responsibility to look after everything. If things get disturbed, our spirits come back and look for things. They should still be there. That's what we have to do - look after it.
Sites
A search carried out by the Aboriginal Affairs Department of an area which includes, but is somewhat larger than, the petroleum exploration permit reveals one listed Aboriginal sites The department acknowledges that this may not be a complete list of all sites.
Although the search reveals only one site which is on the Interim Register, and has an 'Open' access and significance Code, I have no doubt, based on the evidence of the native title parties, that there are sites of significance to the native title party in accordance with their traditions on the area of the petroleum exploration permit.
(b) Conclusions
Community life
Based on the factors described above in WO97/97 which point to a finding of interference with the spiritual aspects of community life and the evidence of Messrs Narngarin, Watson and Dabirri, I find that the grant of the petroleum exploration permit directly interferes with the community life of the native title party.
Sites
For the reasons given in WO97/97 I find that the grant of the petroleum exploration permit interferes with sites of particular significance in accordance with their traditions to the native title party.
Major disturbance
It is not necessary to make any findings on this topic.
(c) Determination
The determination of the Tribunal is that the grant of the petroleum exploration permit 2/96-7 to Austin Oil NL is not an act attracting the expedited procedure. In accordance with s.32(5) of the Act, the Tribunal requests the Government party and the grantee party to negotiate in good faith with the native title parties with a view to obtaining their agreement to the doing of the act or the doing of the act subject to conditions to be complied with by any of the parties. In accordance with s.32(5) of the Act the Tribunal offers to mediate among the negotiation parties to assist in obtaining their agreement.
The Hon C.J. Sumner
Member
27 October 1997
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