Robin Boddington and Others on behalf of the Wajarri Elders (WC01/3)/Western Australia/Hampton Hill Mining Nl

[2002] NNTTA 43

NATIONAL NATIVE TITLE TRIBUNAL

Robin Boddington and Others on behalf of the Wajarri Elders (WC01/3)/Western Australia/Hampton Hill Mining NL, [2002] NNTTA 43 (11 April 2002)

Application No:        WO01/486

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

Robin Boddington and Others on behalf of the Wajarri Elders (WC01/3) (Native Title Party)

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The State of Western Australia (Government Party)

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Hampton Hill Mining NL (Grantee Party)

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

Tribunal:           Hon C J Sumner, Deputy President
Place:                 Perth
Date:                  11 April 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 – act likely to interfere with areas and sites of particular significance – act does not attract the expedited procedure.

Legislation:Native Title Act 1993 (Cth) ss 151, 237

Cases: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

Counsel for the

native title party:                 Mr Simon Choo, Yamatji Land and Sea Council

Representative of the

native title party:                 Mr Cedric Davies, Yamatji Land and Sea Council

Representative of the

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

Solicitor for the

Government party:             Crown Solicitor

Representative of the

grantee party:  Mr Terry McMahon, WA Mining Titles

REASONS FOR DETERMINATION

Background

1. On 11 July 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 20/482 (‘the exploration licence’) to Hampton Hill Mining NL (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 12.21 square kilometres located 55 kilometres north of Cue, in the Shire of Cue (centroid - latitude 26^o 57 minutes, longitude 117^o 43 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 4 October 2001, Robin Boddington and Others on behalf of the Wajarri Elders (‘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 (WC01/3) was registered by the Tribunal on 9 July 2001.  The area of the exploration licence is situated on this claim area.

3. The Tribunal accepted the objection application on 20 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 which the Government and native title parties have provided.  The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the Government party.  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. The objection application (para 7) asserted that the s 29 notice did not meet the requirements of the Act. This issue was not pursued further by the native title party and no evidence was produced to support their assertion. I am satisfied that the Tribunal has jurisdiction to determine the matter.

1. 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 a combination of pastoral leases 3114/796 and 3114/769 in addition to a road.  The State advised that there are no Aboriginal communities on or in the vicinity of that land and produced a search of the Aboriginal Sites Register which revealed that there is one site (Wilgie Creek) registered under the provisions of the Aboriginal Heritage Act 1972 (WA). The site is on the interim register, is classified as having open access, has no gender restriction and is an artefact site.  It is also classified as having an unreliable description of its location. 

2. The native title party lodged affidavits of Colin Hamlett, Ike Simpson, Lance Mongoo, each a member of the claim group and affidavits of Nicholas Paul Green, Director of Research employed by the Yamatji Land and Sea Council (‘the YLSC’) and Cedric Stileman Davies, a qualified geologist employed by YLSC.

3. The affidavits from the members of the registered native title claim group are in the following terms.  Colin Hamlett and Ike Simpson are named as applicants on the claim.

   Affidavit of Colin Hamlett

   ‘I, Colin Hamlett of 18 Elder Street, Mullewa in the State of Western Australia, winja/bardani [elder], being duly sworn make oath and say as follows:

   1.I am winja/bardani [elder] and an applicant of the Wajarri Elders claim. I am recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area. I know the area in and around the tenement area and have worked at Karbar and Beebyn Stations before.

   2.I have seen a map, which shows the location of tenement E20/482 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. I was taught about the stories from the area by my father and other Wajarri elders. The tenement area is right along the Weld Ranges and next to Wilgie Mia and is in an area of special importance to Wajarri people. The area is important not just to Wajarris but to Aboriginal people all around the state, to Wanmalas in the desert and Marlbas in the Pilbara. It is one of the most important areas in Wajarri country and the stories and the ochre from the Weld Ranges go all the way out to the Western Desert.

   3.There is a dreaming story about the Weld Range, this story is about a kangaroo who came from the coast and came all the way to the Weld Ranges. The ochre is the blood from the kangaroo. The Weld Ranges within the tenement area is part of that story.

   4.There are old camps within the tenement area.

   5.A couple of the largest ceremonial areas in Wajarri country is located right near the tenement area. People would come from all over to corroborrees at this place, there would be people from the wanmalas in the desert and Badimias and all different Wajarri people as well as coastal people coming to the ceremonies there. I know about these places, because my father went through the law in the Weld Ranges and he taught me about these places.

   6.They camped all around the area and including within the tenement area. When people came for law business they would camp all along the Weld Ranges and in the tenement area. You can see where the fires were lit at the old camping places, because you can kick up the ashes from the ground.

   7.I can see on my map marked as Annexure “A” the areas marked by cross-hatching that are registered sites with the Department of Indigenous Affairs. However, I am aware of lots of sites, including ceremonial grounds and camping grounds and sites that I spoke of above that are located within and around the tenement area that are not marked as sites on Annexure “A”.

   8.Years ago my brother dug up a boomerang whilst we were camping in the Weld Ranges, from the map it looks like the area we camped was just to the north east of the tenement area. He was digging a hole to bury rubbish in while we were camped out there. The boomerang must have been left by one of the groups of old people camping there.  Often after ceremonies people would bury important items and it is important that these are not disturbed.  If he dug one of these up then there must be lots more artifacts buried in and around the area. If these are disturbed or damaged then this would cause lots of problems for Wajarris and our country would be hurt.

   9.The tenement area is very good hunting country and is important for Wajarri people because it is used frequently as a hunting and camping area and a place to collect bush foods, especially by the Wajarris living in Cue.  The Cue mob are always going out to get kangaroos from around Cue and including the tenement area.  The tenement is close to Cue where lots of Wajarris live and has good roads going right up to and through the tenement area which makes it easy to access.

   10.Within the tenement area there are guradah which are a type of tree.  These are very important for Wajarri people and have lots of uses. The seeds can be crushed to make damper or straight in the roots you can find bardies, it’s a very good medicine bush as well and you can make warlanu [boomerangs] and gurndi [fighting sticks] from the branches, it grows in the tenement area.

   11.There are also lots of Mulgas in the tenement area which are good for making wirrangu [spears] and warlanu.

   12.Beefwood trees also grow in the tenement area and you can use those to make urndas [shields].

   13.There’s a very important medicine bush called gandilangu. These are very important for Wajarri people, it’s a very good medicine bush which has lots of uses. White people use this to combat cancer. You can boil the bark and bathe people in it. It kills germs and will help people with scabies. If you have a tooth ache you can boil up the leaves and chew on those and that will make the ache go away. If you poke part of the leaf in a wart and break it off then the wart will fall away. You can get all of these things from the tenement area.

   14.The tenement area is a very good area for hunting kangaroos.

   15.If there are drilling rigs in the tenement area then we would not want to go and hunt or camp there.  The kangaroos would be scared away and we wouldn’t to camp there with drill rigs going or other exploration activity. The tracks cleared for an exploration activity would knock down important plants for us and it would not be safe to shoot kangaroos with other people in the area.

   16.Wilgie Mia and the Weld Ranges area one of the most important places in Wajarri country.

   17.Springs and soaks outside the tenement area could be affected if people drill in the tenement area and that affects the water level. 

   18.When I was a young boy and would dig sand up in the ground, my parents or any other adults would push the pile of dirt down and stop me from digging saying that I was killing people by burying them. This is part of our traditional Wajarri beliefs. If people dig up the ground near Wilgie Mia and the Weld Ranges, then this could affect those sites and have serious effects for Wajarris and other tribes.

   19.There are lots of wudajis and mundungu [spirit people] that live in the tenement area. They live in the hills and the caves of the tenement area. That’s their home. These people are little hairy men/spirits. If wudajis get upset then they upset Aboriginal people and they will make you get sick, sometimes they give people a flogging or they throw them out of bed and they’re quite cheeky and will tip water out of containers, burst water bags or put holes in water containers.

   20.If there are holes drilled or bush cleared within the tenement area then wudajis and mundungu could get upset and they could cause problems for us Wajarri people but also people that are doing exploration work in the tenement area.

   21.We were told by old people and we teach our young people that they need to look after country especially areas that are very important such as the Weld range area and we need to prevent these from being damaged.

   22.Some Wajarri people won’t camp in the tenement area by themselves or when there’s only one or two people by themselves, and will only camp there in large groups because there are so many wudajis and mundunu there.

   23.One time I camped in the Weld Ranges a few years ago with other old Wajarri man and a white person, the other Wajarri man I was with kept the fire going all night and wouldn’t sleep because he was scared of the wudajis there.

   24.I believe that the conduct of these activities within the proposed tenement area will disturb the country greatly. The ground and vegetation would be disturbed by the creation of tracks through the tenement area and the drilling could disturb the Wudajis and the sites around the tenement area.

   25.I have seen the damage that mining activity can have on our country.  I went out to an area near Yalgoo last year to check on the impact that the mining activities were having on our country. When we got there we saw dead and dying plants all the along the area where there was run off water. This water went right near the Sanford River and it would have seeped into the river. We could see a lot of dead fish just down from there. Seeing that made us angry, as our country is being damaged by these mining companies all the time.

   26.When we go bush we see the damage that mining companies do everywhere, they rip up the dirt all over the place, all through the Murchison. They cut tracks everywhere, knock down trees, put dumps in the ground and don’t clean up once they’ve gone. The tracks that they grade last for years and years. You can see the tracks that mining companies make years after they’ve gone and left the area. When they make the tracks, they remove the trees and plants from there and they become eroded.  When rains come they run along the tracks and this erodes it even further.

   27.If people go drilling in the tenement area then that could upset the Wudajis in the area and they would then go and cause trouble.’

   Affidavit of Ike Simpson

   I, Ike Simpson of 5 O’Brien St, Mullewa in the State of Western Australia, bardani or winja [elder], being duly sworn make oath and say as follows:

   1.I am a winja [elder] recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the area in the Wilgie Mia Area and an applicant in the Wajarri Elders claim.

   2.I have seen a map, which shows the location of tenement E20/482 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. I am one of the winja responsible for looking after Wilgie Mia Country, including, the tenement area.

   3.I was born at Buguwalya Pool on Boolardy Station on 14 March 1927.

   4.Wilgie Mia and the Weld Ranges, including the tenement area, are some of the most important places and areas in Wajarri country. There is a dreaming story about Wilgie Mia and the Weld Ranges. A marlu [red kangaroo] from Kalbarri was speared towards the coast, it travelled east followed hills east and went to Barluwidi out of Twin Peaks then Junyidi just out from Meeka Station, to Mt Aubury and then to the Weld Ranges at Wilgie Mia where it stopped there and that is his blood at Wilgie Mia. The Dreaming keeps going along the Weld Ranges, through the tenement area through to Wiluna and Warrakuna. The story connects a lot of different groups and it is important to them as well.

   5.There are corroborree grounds near the tenement area.

   6.The tenement area is part of that dreaming, it is a very special and important place for us. It is important that it is not disturbed. Drilling or clearing by mining companies in the tenement area would impact on that place.

   7.Wilgie Mia ochre goes all over the country, it is important because it is used for painting in corroborrees and it is still used today.

   8.Wajarri people still collect the ochre from Wilgie Mia and trade it with others. The ochre is used all over the country. When we go to Wilgie Mia we drive through and stop within the tenement area, the road goes right through tenement area.

   9.Other groups expect Wajarri people to look after that area and would be upset if we do not look after the area. We could get into trouble if the area is not looked after.

   10.When the old people came down for corroborrees there they would camp all along the hills within the tenement area, and all around that area. People would come from all over the Murchison for corroborrees at Wilgie Mia and would camp all around there, including in the tenement area. You can see on the map an area that I understand is an artefact site, there are lots of other places within the tenement area that there are artifacts that have not been marked on the map, the old people camped all through there, especially around the creek and where there was water. If there is exploration within the tenement area then these other sites will be disturbed, damaged or destroyed. There has already been a lot of exploration in the area and this has damaged the country and the sites there. This hurts us deep inside as well.

   11.The tenement area is also important because a lot of wudargis live in the hills and the rockshelters around there. Wudargis are little spirit people. They are cheeky fellas. If people go drilling in or around the hills in the tenement area then that could upset the wudargis, they wouldn’t want to stop there with all the noise and could cause trouble or get scared away.

   12.The tenement area is a good area for hunting and collecting bush foods. It is close to Cue and lots of Wajarris go out there and around there to hunt and collect bush foods, especially those Wajarris in Cue, that mob are always out there. It’s a good area to go because it is right where we stop when we go to visit Wilgie Mia.

   13.Its good kangaroo and guwiyarl [goanna] country in the tenement area, especially around the base of the hills where there is lots of shade and you can find plenty of kangaroos there. In the washaway country there is plenty of feed for the kangaroos and other animals.

   14.You get gurrara trees in the tenement area, you take the seeds from them and crush them up and you can eat them like that or make them into damper.

   15.Coglas, which are like pears, grow in the tenement area, so do bagurda which are a long bean that you can eat raw. Walgu trees grow in the tenement area, you get the nuts off that and eat them.

   16.There is a bush medicine that we call gubaru which has small black berries. You break the leaves off and boil them and use them as medicine, they are good for anything.

   17.If people went drilling out there then that would interfere with Wajarris hunting out there or collecting bush foods. The animals would get scared away and trees would get knocked down for the tracks. You can still see the tracks in the tenement area where previous mining companies have been and cleared years ago. When I was last there, a couple of months ago, I saw drilling tracks that were cleared years ago and cleared drill pads, where there were still no plants growing back there, and there were still piles of dirt that the mining company had pushed up to clear the drill pads. This disturbs the land and the spirits within the land, especially in an area as important as the Weld Range area and Wilgie Mia. When I saw this damage, this upset me.’

   Affidavit of Lance Mongoo

   ‘I, Lance Mongoo of Unit 8, 38 Sunset Drive, Geraldton WA, in the State of Western Australia, winja/bardani [elder], being duly sworn make oath and say as follows:

   1.I am a winja/bardani [elder] on the Wajarri Elders claim. I am recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area.

   2.I know the area in and around the tenement area and was born in Cue and have lived most of my life in and around Cue and the general area of the tenement. I have seen a map, which shows the location of tenement E20/482 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. I am living in Geraldton at the moment, but I was living in Cue until last year.

   3.The tenement area is located in important country for Wajarri people, it is part of the Weld Ranges which is a site and area of great significance to Wajarri people. It is significant because of the wilgie [red ochre] there and the dreaming stories about the ranges. There are lots of sites within the Weld Ranges and in the vicinity of the tenement area. There are a lot of old camps in the tenement area because the old people would camp there when they went to Wilgie Mia for Corroborrees and to collect wilgie.

   4.The tenement are is also very close to Wilgie Mia. The tenement area is a very good place for hunting and getting bush foods, especially the base of the hills. It is also a good place for camping and Wajarris are always going there. The tenement area is an important area for Wajarri people.

   5.I’d say there would be about 100 Wajarri people living in Cue, which is only about 40 kilometres from the tenement area. For us Cue Wajarris bush foods are an important part of our diet, mainly we eat kangaroo meat and other bush foods. Other meat is too expensive. Why would you want to buy meat when there are so many kangaroos around and these don’t cost anything? Kangaroos are part of our traditional diet.

   6.Wajarri families in Cue go out kangaroo hunting about once every week to get enough kangaroo meat for the family to last the week. When this runs out someone else will go out and get some more. There is good hunting country around Cue.

   7.I know the tenement area well and have been out there many times. It is very good hunting country and is easy to get to from Cue. During school holidays, the Cue Wajarri families will be out camping and hunting on most days. We take the kids out to teach them about the area, about the stories for the country and show them how to survive in the bush, so they can always get a feed or some water.

   8.Some station owners around Cue are funny with Wajarris and they don’t like us hunting on our own country. They give us a hard time when we go out shooting. The station owners at Glen Station, where the tenement area is located, are good to us Wajarris and they don’t try to stop us going out there. This makes the tenement area a good place for us to hunt, camp and gather bus foods.

   9.When we go camping out in the tenement are we will often go and try to get a kangaroo, or a kiwiyarl [goanna] or bush turkey in the tenement area, especially around the base of the hills there. There are a lot of goats there too.

   10.We also get coglas and honey ants from the tenement area.

   11.The tenement area and the Weld Range is very important for Wajarris and also for Aboriginal people all around Australia. It is important because of Wilgie Mia and the dreaming stories about the Weld Range. The Weld Range is connected to the hills at Yalgoo and also to the hills at the west side of Wiluna. The dreaming goes out to the desert, the mob in the desert have the story about the sturt pea that comes from the Weld Ranges. Even the people at Yallatha in South Australia have a dreaming that comes from the Weld Ranges. If the Weld Ranges and the sites in and around the tenement area are interfered with then the others sites that share the same dreaming, such as those near Yalgoo, Wiluna and Yallatha may also be interfered with.

   12.You can get good ochre from Wilgie Mia, people use it all over Australia and it gets traded across Australia. There’s a plant in Queensland, that only grows in the Weld Range, the seed must have been taken over there with ochre from the Weld Range. It’s good ochre because it doesn’t burn your skin and it’s still used today in ceremonies and for dancing.

   13.If people go drilling in the tenement area then this could interfere with Wilgie Mia, because it is all connected, the wilgie [blood] goes all through there.

   14.There are lots of Wudajis [spirit people] that live in the Weld Ranges and in the hills and caves in and around the tenement area.

   15.Wudajis are spirit people that live in the area and they can be cheeky if you upset or disturb them of if you go too close too where they’re living.

   16.A while ago we were camped near the tenement area. We were camping there with my wife and 3 boys. We had about 30 kangaroo tails on the bonnet, 3 pots of sheep tripe on the coals and a camp oven full of kangaroo meat on the coals as well. We went to bed that night and in the morning all of the pots with the tripe had been dragged off the coals and two of them had been emptied with their lids thrown to the side and there was only one pot of tripe left. The camp oven with the kangaroo meat in it had been picked up and turned around because the handle was in the wrong way and the lid was opened up so it was only partially covering the pot and all of the meat had been taken out from the camp oven.

   17.The Wudajis must have come and taken all the meat. They do things like that sometimes, they’re very cheeky. They will take cooked meat but they mustn’t have taken the kangaroo tails because they weren’t cooked yet.

   18.There were no tracks or anything around the pots, it was like something had come out of thin air and taken the meat. I looked everywhere for tracks, but could not see any tracks anywhere. It would have been impossible for a fox or dingo or anything to move the camp oven off the coals, because the coals were hot all night and foxes can’t just turn around a pot like that and lift the lid half off a cast iron pot. My wife hasn’t been camping back in that place again since then, but I still go out there.

   19.In addition I have been informed that if the tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:

   a.Reverse circulation drilling in areas of hypersaline groundwater.

   b.Diamond (core) drilling.

   c.The excavation of up to 1000 tonnes of material.

   20.I believe that the conduct of these activities within the tenement area will cause a lot of damage to the area.I have seen the damage that exploration activity can have to our country.

   21.Other companies have done drilling in the tenement area before, this would be over 13 years ago, a good while ago. You can still see the tracks that they have left. In the wet, the tracks get covered with grass, but in the dry you can see the tracks no worries. Having tracks and drilling rigs going all over the place is not good for the country and the damage stays around longer the mining companies. They leave the damage for us Wajarris. There are bores and drill holes around the tenement area that have not been covered. Kiwiyarls go down these holes, because they smell the water and they slip and go straight down and then they are stuck and die. I have seen this many times. You get a torch, a mirror or a piece of glass and shine the reflection down and you can see the dead animals stuck down there. The ground and vegetation is disturbed by the creation of tracks through the tenement area and the drilling could disturb Wilgie Mia or the Wudajis and the sites around the tenement area in the Weld Ranges.

   22.I used to work with a drilling contractor years ago collecting samples, I have seen first hand the damage that these exploration activities can do. The drillers would leave a big mess once they’ve finished. When the water comes out they make a dam or trench for it to run off and the water can go everywhere. When the water was salty it would kill all the plants all around the rig.’

I note that the three affidavits of the members of the claimant group are largely similar, in terms of substantive content, to those lodged in Boddington (WO01/180).  WO01/180 was an expedited procedure objection application in relation to proposed exploration licence 51/916 which is situated some 8-10 kilometres to the south-east of the exploration licence the subject of these proceedings.  There have been some minor amendments to the content of the affidavits in addition to some re-ordering of the paragraphs.  In particular, the amendments that have occurred indicate that the proposed tenement is in or very close to the Weld Ranges as opposed to adjacent to/in the vicinity of the Weld Ranges as was the case for WO01/180.  The affidavit of Cedric Davies is in identical terms to that lodged in Walley and Boddington (WO01/179 and WO01/180) and that of Nicholas Green similar in a number of relevant respects.

Community or social activities (s 237(a))

There are no Aboriginal communities situated on or in the vicinity of the area of the exploration licence.  Nevertheless the direct evidence from three members of the Wajarri Elders claimant group Colin Hamlett, Ike Simpson and Lance Mongoo establishes, as it did in WO01/180 the existence of substantial community and social activity of a physical kind on the area of the exploration licence.  My findings of fact are very similar to those in that matter.

1. In summary the evidence of Mr Hamlett established that the exploration area is very good hunting country and used frequently as a hunting and camping area and a place to collect bush foods by Wajarri people, especially from the Cue area.  They regularly hunt kangaroo around Cue including on the exploration licence area.  On the exploration licence area there is a type of tree called guradah the seeds of which can be used in making damper.  Bardies can be found on its roots.  It can be used for medicinal purposes and the branches can be used to make warlanu (boomerangs) and gurndi (fighting sticks).  Mulgas are common on the exploration area and are good for making wirrangu (spears) and warlanu.  Beefwood trees also grow there and can be used to make urudas (shields).  There is also an important bush for Wajarri people called gandilangu which has a variety of medicinal purposes.  The claimants would not wish to go to the area if there are drilling rigs as the kangaroos would be scared away.  They would not want to camp nearby and it would not be safe to shoot.  A couple of the largest ceremonial areas in Wajarri country are located close to the tenement area.  People from both the desert and coast come to these areas for corroborees at these places.  When they come for law business they camp in the Weld Ranges and the tenement area.

2. The evidence of Ike Simpson and Lance Mongoo generally supports that of Mr Hamlett.  Mr Mongoo said that the tenement area is a good place for hunting, getting bush food and camping.  The tenement area is an important area for Wajarri People and they are ‘always going there’.  He says there are about 100 Wajarri people living in Cue.  Bush food is important to them and kangaroos are part of their diet.  He says that families go out once a week for kangaroo but does not specify that this is to the exploration area on each occasion.  During school holidays the Wajarri families will go out camping and hunting on most days and to teach children about the country and its stories including the tenement area.

1. None of this evidence was contested by the other parties and I accept it.  I find that the community and social activities are of such a frequency and kind that exploration is likely to interfere directly with them in the sense that there is a real chance of substantial interference with them (Walley and Boddington (WO01/179 and WO01/180) at [8] and [12]).  The facts upon which this finding is based are similar to those in earlier matters where Deputy President Franklyn found that the evidence of regular travelling, camping and hunting for various traditional activities was sufficient to sustain an objection (Leone Velickovic/Western Australia/Royce William Allen, NNTT WO00/184, Hon E M Franklyn QC, 10 November 2000; Violet Drury and Others (Nanda People)/Western Australia/Giralia Resources NL, NNTT WO00/93, Hon E M Franklyn QC, 18 May 2001 (at [11]).

Sites of particular significance (s 237(b))

1. The Tribunal is empowered, in its discretion, to adopt any findings and decisions of its own in other proceedings that may be relevant to its inquiry (s 146 NTA).  In my view the findings of fact in WO01/180, based as they were on affidavits in similar terms to those filed in this matter, can be adopted in this inquiry.  The relevant findings relate to the significance of the Weld Ranges to the native title party.  The relevant findings which are adopted are:

   ‘[53]     The native title party’s evidence:  The evidence of Mr Hamlett is that the proposed tenement is close to Wilgie Mia, the Weld Ranges and in an area of special importance to Wajarri and other Aboriginal people.  …  Spirit people (wudajis and mundungu) live in the hills of the Weld Ranges.  The special importance of Wilgie Mia and Weld Ranges to the native title party was endorsed by Ike Simpson.  There is a red kangaroo (marlu) dreaming story associated with them.  There are Corroboree grounds in and around Weld Ranges and ochre from Wilgie Mia is still used all over the country for painting in corroborees.  Mr Mongoo supports the other deponents in relation to the importance of Wilgie Mia and the Weld Ranges.  …

   [54]      Affidavit of Nicholas Green:  Nicholas Paul Green is Director of Research at the Yamatji Land and Sea Council and has responsibility for anthropological research within the Wajarri Elders native title claim area.  On the question of site protection he says that it is the general practice of the native title party to instruct the YLSC to lodge objections to the expedited procedure and then withdraw them if a grantee party agrees to fund and facilitate an Aboriginal heritage survey of the tenement area.  He says that the native title party is concerned that grievous damage to traditional country will be caused and can only be prevented by a site survey.  They believe that a site can be interfered with by exploration activities even if not located within a tenement area, but in close proximity to it.  Mr Green’s opinion is that the more significant a site, the greater precautions must be taken to avoid disturbing it.

   [55]      Mr Green further deposed that:

   ·     it is unlikely that the Register of all sites will be an accurate record of all sites of significance within the exploration licence area;

   ·     Wilgie Mia and the Weld Ranges are places of great significance to Wajarri people and other Aboriginal people in Western Australia;

   …

   ·     Wilgie Mia is an important source of red ochre and contains evidence of substantial quarrying by hand by Aboriginal people.  It is known as a place of fabulous wealth to all Aboriginal people in the general region.  Wilgie Mia is a ‘protected area’ under s 19 of the Aboriginal Heritage Act and surrounded by an Aboriginal Reserve proclaimed under the Aboriginal Affairs Planning Act 1972.

   [56]      My findings in relation to this evidence are that the Weld Ranges is a significant area to the native title party in accordance with its traditions and that there are sites of particular significance within them including Wilgie Mia.  …’

2. In addition to these findings, the evidence specific to this matter establishes that the area of the exploration licence is either very close to or within the Weld Ranges (Colin Hamlett’s affidavit - para 2; Ike Simpson’s affidavit - para 4; Lance Mongoo’s affidavit - para 3).  The protected area of Wilgie Mia is less than a kilometre from the northern boundary of the tenement, thus supporting a finding that the proposed tenement is within an area of particular significance to the native title party in accordance with their traditions.  Mr Hamlett (para 7) also says that there is a registered site (Wilgie Mia Bora Ground) some 3 kilometres from the northern boundary of the tenement and that there are other sites including ceremonial grounds, camping grounds and other sites located within and around the tenement area.

3. There is one site in the area of the exploration licence on the Aboriginal Sites Register kept by the Government party – Wilgie Creek.  I accept that this does not mean that there may not be other areas or sites on the exploration licence area as the Register does not purport to be a record of all Aboriginal sites in Western Australia.  Wilgie Creek is not referred to specifically in the affidavits of the members of the claimant group and on the face of it may not qualify as a site of particular significance (it is an artefact site, on the interim Register, and open with no gender restrictions).  However, this site is not to be considered in isolation.  The other evidence clearly supports a finding that the area in which the exploration licence is situated is of particular significance to the native title party in accordance with their traditions.

4. I find that the exploration licence area is located within an area of particular significance to the native title party in accordance with their traditions and that there are likely to be sites of particular significance within the tenement area itself.

5. I now turn to whether the protective measures in the Aboriginal Heritage Act, associated administrative procedures and the presumption of regularity are sufficient to make it unlikely in the sense that there will be no real risk of interference with the area or sites identified as of particular significance to the native title party (see discussion and cases cited in Walley and Boddington (WO01/179 and WO01/180) at [11], [50]-[51]).  In WO01/180, I made the above findings in relation to the Weld Ranges but found that there was no specific evidence of the existence of sites of particular significance on the tenement area itself which was some 5-10 kilometres from the area of the Weld Ranges.  I accepted that the presumption of regularity should apply and that the site protection regime was sufficient to ensure that there was unlikely to be any interference with areas or sites of particular significance.  This matter is entirely different.  The exploration licence is to be granted over an area rich in sites and within an area of particular significance to the native title party.  The Tribunal has held that the presumption of regularity does not in all cases mean that there will not be interference with areas or sites of particular significance (see cases cited in Walley and Boddington (WO01/179 and WO01/180) at [51] and Ben Ward & Ors (Miriuwung & Gajerrong People)/Ausquest Limited/Northern Territory, NNTT DO01/63, John Sosso, 8 April 2002).

6. The evidence in this matter establishes that the area of the tenement is within an area of particular significance to the native title party in accordance with their traditions and also likely to contain sites of particular significance, the location of which is not publicly known because they are not on the Register. Despite applying the presumption of regularity and accepting that the grantee party will obey the law, this is a case where there is a real risk of interference with the area or sites of particular significance such that the normal negotiations required by the Act should take place.

Major disturbance (s 237(c))

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

Determination

The determination of the Tribunal is that the grant of exploration licence 20/482 to Hampton Hill Mining NL is not an act attracting the expedited procedure.

Hon C J Sumner

Deputy President
11 April 2002