Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Richmond Resources Pty Ltd
[2002] NNTTA 236
•18 November 2002
NATIONAL NATIVE TITLE TRIBUNAL
Robin Boddington and Others on behalf of the Wajarri Elders/Western Australia/Richmond Resources Pty Ltd, [2002] NNTTA 236 (18 November 2002)
Application No: WO02/87
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 (native title party)
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The State of Western Australia (Government party)
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Richmond Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 18 November 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 sites of particular significance – act does not attract the expedited procedure.
Legislation:Native Title Act 1993 (Cth) s 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
Representative of the
native title party: Mr Cedric Davies, Yamatji Land and Sea Council
Representative of the
Government party: Mr Philip Boyland, Department of Mineral and Petroleum Resources
Representative of the
grantee party: Mr Nathan McMahon, Mineral Title Services
REASONS FOR DETERMINATION
Background
On 12 December 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 20/473 (‘the exploration licence’) to Richmond Resources Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 18.27 square kilometres located 39 kilometres north west of Cue, in the Shire of Cue (centroid - latitude 27o 16 minutes, longitude 117o 31 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).
On 22 January 2002, 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.
The Tribunal accepted the objection application on 6 March 2001.
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. 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).
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
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
The Government party’s evidence establishes that the underlying land tenure of the proposed tenement is:
·Pastoral Lease 3114/776 (vested in Big Bell Gold Operations Pty Ltd);
·Unallocated Crown Land (closed road); and,
·Road.
There are no Aboriginal communities located within the vicinity of the tenement.
The Aboriginal Sites Register reveals there are no sites registered under the provisions of the Aboriginal Heritage Act 1972 (WA) within the area of the tenement.
The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the Government party. As there is no evidence of the grantee party’s intentions in relation to exploration I have dealt with this matter on the basis that the grantee party will exercise the rights available to it under the grant to the full extent permissible by law.
The native title party lodged affidavits of Ike Simpson, Colin Hamlett and Lance Mongoo who are members of the claimant group. An affidavit sworn by Raina Savage, a Legal Officer employed by the Yamatji Land and Sea Council was also filed. She deposed to a visit she made to the exploration area with Messrs Hamlett and Mongoo on 25 August 2002 which is referred to in their affidavits. She observed and took photos of some rock art of hand prints which they found in a cave some 1.5 kilometres from the centre of the tenement area. The photos were annexed to her affidavit and that of Colin Hamlett.
Affidavit of Ike Simpson
‘I, Ike Simpson of 5 O’Brian St, Mullewa in the State of Western Australia, bardani/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 around the Wilgie Mia Area.
2. I have seen a map, which shows the location of tenement E20/437 (“the proposed tenement”). Annexed to this affidavit and marked “IS1” is a map showing the location of the proposed tenement. I am one of the winja responsible for looking after Wajarri Elders country, including, the tenement area.
3. I was born at Buguwalya Pool on Boolardy Station on 14 March 1927.
4. I have been shown the affidavit that I swore in WO01/180 and it is annexed to this affidavit and marked “IS2”. The things I said in that affidavit about the area being a good area for hunting and collecting bush foods is the same for this area, because they are very close. You get the same tucker all though there because it is wash-away country with good tucker for animals and good shade. If you look at the two maps you can see that the creeks run all though there.
5. This area is in the same general area as WO01/180 and is also a good area for hunting and collecting bush foods. It is also 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. They go down all through that country hunting for tucker. Because it is the same kind of country in the same area, a lot of what I say in this affidavit is the same as what I said in the affidavit attached and marked “IS2”.
6. 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.
7. We steal the eggs from the yalibirri from the tenement area, there are lots of them in the hills around the tenement area.
8. You get gurarra 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.
9. 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.
10. 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.
11. If people went drilling in the tenement area then that would interfere with Wajarris hunting out there or collecting our bush foods. The animals would get scared away and trees would get knocked down for the tracks.
12. I have been all through that country and worked there too. There has been some whitefellah activities there in the past, but it hasn’t wrecked that country. It’s still good and we still use it a lot, like I have said in this affidavit.’
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 a 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.
2. On Sunday 25 August 2002 I visited the proposed tenement E20/4731 with another member of the Wajarri Elders claim group, Mr Lance Mongoo, and two people from the Yamatji Land and Sea Council – Ms Raina Savage, Legal Officer and Mr Fred Taylor, Aboriginal Liaison Officer.
3. Before we went out to the tenement I had seen a map, which shows the location of tenement E20/473 (“the proposed tenement”). Annexed to this affidavit and marked “CH1” is a map showing the location of the proposed tenement.
4. I know the area in and around the tenement area and going out there brought up lots of memories for me. My whole family used to live and work out on Coodardy Station where the tenement is located and we used to go all through that area fencing. All of us were there – my mother and father, my three brothers and two sisters.
5. Every school holidays I worked digging fences with my father out on the station in the area of the tenement. We walked all through that country digging post holes and putting up fences and he would tell me the stories for that country. I was taught about the stories from the area by my father and I also learned stories from other Wajarri elders. I lived out on that station after I left school for many, many years.
6. Even after I left the station I still used to go out there, hunting and camping with my wife and family. I used to take all my children out onto my country when they were small and teach them the language, the words for things and stories about the country. I don’t know the white fella names for some of the tress and bushes I just know our words for them.
7. The tenement area is located between Walga Rock and Wlgie Mia, which are both areas of special importance to Wajarri people. The old people used to go all through that country in the tenements area, camping there and walking between Walga Rock and Wilgie Mia. Wilgie Mia 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.
8. The tenement is also close to Walga Rock which is an area that is an important rock art site for Wajarri people. That’s part of my country. You can see Walga Rock from the tenement area that’s how close it is. The Old people used to walk and hunt and camp all through there.
9. There are lots of sites all through the country between Wilgie Mia and Walga Rock. The area of the tenement is covered in rocky outcrops and breakaways. It is really old country all full of nunggas, that’s a Wajarri word for caves, its doesn’t matter how big or small they are. There could be anything in those caves, the old people used to camp in them and do paintings in them, like they did at Walga Rock. We found some rock art in a little nungga when we went out to the tenement just walking around.
10. When we drove out to the tenement we were looking for a reading on the GPS right in the middle of the tenement. The others wanted to stop in the middle and walk around but I had a strong feeling to keep on going. There was something telling me to go further down that’s a spiritual thing, I could feel it. We kept driving south through the tenement until we reached a point that the GPS showed was about 1.5km from the centre of the tenement. Then I knew we had to stop.
11. We got out and we were near a low wide rock area. We walked around the rock for a while and I showed Raina Savage some bush medicine that grew on the rock. You boil it up and use it like an antiseptic to put on sores and warts – it smells really sweet and fresh when it’s green. It was pretty dry because there hadn’t been much rain but I showed Raina how you crushed it and it still had that healing smell.
12. We also saw some rock hollows on the rock face. These hold water when it’s dry, longer than the surrounding ground, so it’s good for the animals.
13. Then we walked east about 15 – 20 metres from where we left the car. There was a big rock platform with lots of boulders and rock overhangs. I could see an opening underneath one rock about a metre high. I felt something then – I knew there was something there. I crawled underneath and had a look. Inside the roof suddenly opened up and it was a small cave about 1.5m high.
14. All along the back wall and on the ceiling were hand prints – most of them small children’s and women’s hands – Aboriginal rock art put there by the old people when they camped for shelter in the rocks. We could see that some of the hands were printed from ochre – they would have brought that down from Wilgie Mia.
15. All of those little hands there means that the area was a good source of food. It meant that people brought their families, their kids there because there was lots of food for them.
16. The others came in and had a look at the art work too. They were all very excited and emotional. Raina Savage asked Lance and I for permission to take some photos of the hands to put with our affidavits. I agreed to this because it is important to have the best evidence that we can to show the kinds of sites that are on the tenement, that aren’t recorded and which could be damaged or destroyed if the exploration tenement goes ahead without a proper heritage survey. Annexed to this affidavit and labelled CH2 – CH8 are photographs of the rock art found in the rock cave that I have referred to.
17. I felt very excited and happy to find the cave and to see the rock art and to know that we had found a site where the old people had camped. It was a significant rock art site that we found just be walking around. It should be registered on the Department of Indigenous Affairs register to be protected.
18. In the past Aboriginal people wouldn’t tell white people where there sites were – because people would go there and destroy them. That’s why there are lots of sites that aren’t registered. Now you can get them registered and that is some protection, but you need to go out there to survey them properly to do this.
19. We drove around the tenement area and saw that there were lots of rocky outcrops and breakaways full of nunggas. There would be more rock art in any of them, or artefacts scattered close by. We didn’t have time to stop and look in all of them, you would need a proper heritage survey to do so.
20. These sites are important to us Wajarri people because they are part of our culture and our history. They are connected to our dreaming stories and our connection to this country. They are important because they are part of how we pass on our traditions and culture to the next generations, we can take the young ones there and teach them about these places and the stories that go with them.
21. There are lots of these old camping places and art sites within the tenement area that are important to us. This breakaway country is the type of country that you find these sites. Just because we were not able to document all of these places because we did not have the time during this trip, does not mean that they are not important to us. This is our country and this is how we feel and no one can take that away from us.
22. The tenement area has always been used as a site for camping and hunting, because there is water and lots of bush tucker, people still go out there today. That whole part of the country is full of sites, lots of them are not registered. I saw things just walking around near the rock cave – like rock splinters and grinding stones, and more of these around Bald Rock and other places we stopped on the tenement. These are artefacts that showed where the Old people camped on this land, and how they lived, and they are important historical and cultural material for us. They would easily be destroyed by drilling and other disturbance of the country.
23. There are so many sites and artefacts that it would take a long time walking around the tenement with an anthropologist or an archaeologist to find all the sites to make sure they were all protected. From looking at a map of the tenement area with the registered sites marked out, I am aware that the sites on the tenement area have not been registered with the Department of Indigenous Affairs. I felt angry that the mining company didn’t want to do a heritage survey, because if they had we would be able to protect these sites.
24. There are three water courses and a big soak on the tenement, as well as lots of hollows in the rocks that hold water after the rain, so it’s a good spot for hunting and camping. There’s lots of water for the kangaroos and other animals.
25. 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.
26. The tenement area 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. The main road to Coodardy and Noonide stations runs right along the top of the tenement and there’s a track that runs from the main road down into the tenement. From the tenement you can follow a track down and back to Big Bell, or keep on going down to Walga Rock.
27. I have been shown the affidavit that I swore in WO01/180 and it is annexed to this affidavit and marked “CH9”. Many of the things that I said in that affidavit about the area being good for hunting and collecting bush food also apply to this tenement area. The same kinds of bush food are all through this granite country.
28. Within the tenement area there are guradah which is 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.
29. There are also lots of Mulgas in the tenement area which are good for making wirrangu [spears] and warlanu Beefwood trees also grow in the tenement area and you can use those to make urndas [shields].
30. 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 the 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.
31. We drove around on the tenement and we saw lots of bush food plants all across the tenement. There are gumburadah¸ sort of like gooseberries, I don’t know that the whitefella word for it is. The tenement was covered in bibins too which is another type of bush tucker. There were bobola trees as well. You smash the seeds up and make a paste and eat it. There is also lots of carara trees and walla wallas, all good bush tucker all over this tenement.
32. We went to Bald Rock in the middle of the tenement too. Just near there we saw a big reedy bush. I couldn’t remember the name for it but it’s good bush tucker too. It’s got leaves like on a pineapple. You pull the leaves out and chew on the juicy white bit at the bottom of the stalk.
33. There are other bush tucker trees in the tenement area too. There’s wirrilgula – they have big red berries, and wummas they’re little red ones. There are also nyunungura, they have little pink berries the size of a nut and you suck on them when they’re ripe. And there’s jalyga – you crush the seeds up or your can just eat them off the bushes.
34. The tenement area is a very good area for hunting kangaroos and bangaras (goannas). And you can get emu eggs there in the winter time.
35. If there are drilling rigs in the tenement area then we would not want to go and hunt or camp there. The kangaroos and other animals would be scared away and we wouldn’t to camp there with drill rigs going or other exploration activity. The tracks cleared for exploration activity would knock down important plants for use and it would not be safe to shoot kangaroos with other people in the area.
36. A large part of the tenement area is covered in rocky outcrops that are full of nunggas. There are numerous sites throughout these areas. Any exploration activity in the rocky parts of the tenement could damage or destroy these sites.
37. There is also a big soak in the middle of the tenement area and three water courses. There is not much flat soil covered land in the tenement and the ground hasn’t been disturbed. Because the tenement area is such a rich source of bush tucker any exploration activity will have a big impact on the area. Drilling could affect the water sources and scare away the animals that come here for the water. Bush tucker trees will be knocked down to make tracks.
38. The tenement covers a soak called Callie Soak and there are other soaks in the gullies in the rocks. Springs and soaks inside the tenement area could be affected if people drill in the tenement area and that affects the water level. The kangaroos know where these soaks are and come there looking for food and water. This is what makes it such good hunting country.
39. The soaks make it good for camping too. In the old days the Old people had to rely on water from the soaks in the dry times – that’s why they camped in these places. Even today we camp where the water is. Whitefellas might think that there’s no water – but kangaroos and blackfellas know where to find water.
40. There are lots of wudajis and mundungu [spirit people] that live in the hills and the caves of the 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.
41. 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.
42. We were told by old people and we teach our young people that the need to look after country especially areas that are very important such as Walga Rock area and we need to prevent these from being damaged.
43. 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 out there. When we go there we saw dead and dying plants all the along the areas 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.
44. 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.
45. 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 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 have seen the map, which shows the location of tenement E20/473 (“the proposed tenement”). Annexed to this affidavit and marked “LM1” is a map showing the location of the proposed tenement. The tenement is located in important country for Wajarri people, it is in between Wilgie Mia and Walga Rock, which have lots of sites in them and stories about them.
3. I know the area in and around the tenement area I was born in Cue and have lived most of my life in and around Cue and the general area of the tenement. I am living in Geraldton at the moment, but I was living in Cue until about 18 months ago.
4. I used to live out at the camp my father set up just off the Coodardy Road at Garden Well outside of Cue. This is on the road out to the tenement only about thirty kilometres away from the tenement. I liked living out there at the camp and lived there until just a few years ago. I would still be there if I could have a shed. I used to I carve emu eggs and I needed a shed to carve them in. When the Big Bell mine first started I was living out there and carving emu eggs. I used to sell them to the people working out there.
5. On Sunday 25 August 2002 I went out to the tenement with Colin Hamlett who is another Wajarri elder, and two people from Yamatji Land and Sea Council – Raina Savage who is a Legal Officer and Fred Taylor an Aboriginal Liaison Officer.
6. We went onto the tenement area and drove towards the southern end about 1.5km from the centre of the tenement. We had a GPS machine and that told us how far we were from the middle of the tenement.
7. We got out there and walked around. We walked around the rocks and about 20 metres away from the track I saw an overhanging rock. I went and had a look in there. It was low down only about 1 metre off the ground and you had to crouch down to go in.
8. Inside I saw a cave covered with pictures of hands. They were Aboriginal hands printed onto the walls and ceilings by the old people. Most of them were little hands – like little children or women. They weren’t men’s hands. It looks like a women’s site, with all those little hands and women’s hands, but I can’t speak for these things. It is an important spiritual site for Wajarri people and it should be protected.
9. The site is important to Wajarri people because rock art is a spiritual thing for us. It is connected to our dreaming, it is part of the way we tell stories for our country. This rock shelter shows that the Old People camped here and did ceremony in this place. The tenement is not far from Walga Rock – there is similar rock art there, and in between Walga Rock and Wilgie Mia. The ochre in the rock shelter would have been brought down from Wilgie Mia. The old people passed through the tenement area on their way down there. There are important sites like this all along that path between those places.
10. These rock art sites are important for Wajarri people today because they are part of our dreaming, our culture and our stories for this area. They show our connection to this country. We bring our children out here and show them these sites and tell them the stories that go with these places.
11. There are lots of sites all through this country. The tenement area is full of nunngas, rock holes and caves. There are so many that you can’t say where they all are. You would have to walk around for a couple of days looking at all the places to show where the sites are. These caves are important to us because they are part of our dreaming, our spiritual connection to the land, and they contain the stories for this place. The old people camped in some of these caves and did ceremony and art in some of them. They are part of our culture and heritage that we need to protect and pass on to the next generation.
12. The whole tenement area is an important site for aboriginal people because the whole place is used for camping, for hunting and for ceremony. The rock art site I talked about showed that the Old people camped here and performed ceremony. We still use this place for camping and hunting and visiting sites today. It is an important part of our country and we still have strong connections to it. It is important because it is part of our history but it is also important because it is part of how we practice our culture today.
13. I have been shown the affidavit that I swore in WO01/180 and it is annexed to this affidavit and marked “LM2”. Lots of the things I said in that Affidavit also apply to this tenement area. In particular the tenement area is a very good place for hunting and getting bush foods as well as camping and Wajarris are always going there. The tenement area is an important area for Wajarri people.
14. There are about 100 Wajarri people living in Cue, and they often go out hunting for kangaroo and other bush foods in the country around Cue. For us Wajarris in Cue 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.
15. 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. The area in the tenement is good for kangaroos because there is a soak there - Callie Soak and that makes it good for kangaroos and other animals. There are also other soaks in the gullies in the hills around there.
16. I know the tenement area well and have been out there many times. It is close to the place where Prince Charles camped when he came out there at Telegootherra Hill just outside the tenement area. It is very good hunting country and is easy to get to from Cue. This tenement is only about 40 minutes drive from Cue. It is easy to get to – the road goes right past there.
17. Lots of Wajarri people from Cue go out there all the time. During school holidays, the Cue Wajarri families will be out camping and hunting on most days. Usually on long weekends I will take a big mob of kids out there to teach them about the country. They can be difficult in town but when you get them out there they’re really good. You can show them all about the country and they get real interested, you can teach them the language for things and the stories for the places. 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 feed or some water.
18. 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 Coodardy, where the tenement 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 bush foods.
19. When we go to the tenement area we generally go straight up the Noondie Coodardy Road. It’s a good road and the Council looks after it. It’s a good hunting area because you can get there on good roads, but once you are there you can take tracks off the side away from the main roads so it isn’t too dangerous to go shooting there.
20. Marked out on the map annexed as Annexure “LM1” is a copy of the main routes that we used to get out to the tenement area and how we travel back. You can keep going through the tenement and down to Walga Rock to visit the sites there. People often go that way going down to visit those sites. Or you can double back and go through Big Bell and back into Cue that way.
21. When we go camping out there we will often go and try to get a kangaroo, or a kiwiyari [goanna] or bush turkey in the tenement area and around the base of the hills there. There area lots of kangaroos and bungaras in those hills out there.
22. Bungaras are deadly eating. There are lots of different kinds – big black ones and yellow ones – all through those hills.
23. We also get colgas and honey ants from the tenement area.
24. Its good country. I have seen the damage that mining companies do on other tenements. They leave the damage for us Wajarris. In closer to town near where I used to camp there are bores and drill holes over the old tenements and they’re not covered over.
25. I’ve seen dogs chasing goats and those goats disappear down those holes. Kiwiyarls go down these holes, because they are 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 the sites around the tenement area. The drilling could affect the soak.
26. 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.’
Mr Simpson and Mr Hamlett are registered native title claimants over the exploration licence area. Mr Mongoo is not named as a registered native title claimant on the Wajarri Elders claim. Mr Mongoo describes himself as a winja/bardani [elder] on the Wajarri Elders claim who under traditional Wajarri law is recognised to speak for and knows the sites and traditional stories of the tenement area. Mr Mongoo also says that the exploration licence area is located in important country for Wajarri people, and that he has been to the area many times. On this basis, I accept that Mr Mongoo can speak about community and social activities and sites relevant to the claim group. Mr Mongoo’s evidence is consistent with that of Mr Simpson and Mr Hamlett. The evidence in the affidavits lodged by the native title party has not been contested by either the Government or the grantee parties and I accept it for the purpose of this determination.
Community or social activities (s 237(a))
The affidavits of Messrs Simpson, Hamlett and Mongoo contained similar evidence to that lodged and accepted in Boddington (WO01/180) by the same three persons. The affidavits of each of the deponents in that matter are exhibits to their respective affidavits in this matter and were provided to establish that the activities of hunting and collecting bush foods are the same in both areas. The area of the exploration licence is some 30 kilometres south of the tenement the subject of WO01/180. The evidence is also similar to that provided in WO01/486 from the same persons and where the tenement was located some 8-10 kilometres to the north-west of the tenement the subject of WO01/180. In both WO01/180 and WO01/486 the Tribunal found that the nature and frequency of the activities including travelling to the area, hunting and collecting food meant that there was likely to be direct interference with the community or social activities of the native title party. There is no need to re-state the evidence as it is sufficiently covered by the affidavits (see especially Ike Simpson – paras 4-10; Colin Hamlett – paras 22, 24-29 and Lance Mongoo – paras 12-23).
The Tribunal must consider whether there is a real risk of substantial interference with the community or social activities of the native title party. There is nothing of significance in the evidence in this matter to distinguish it from that provided in WO01/180 and WO01/486 and I find that the range of activities permitted by an exploration licence is likely directly to interfere with the community or social activities of the native title party.
Sites of particular significance (s 237(b))
The evidence under this heading is contained in the affidavits of Colin Hamlett, Lance Mongoo and Raina Savage. On their visit to the area of the exploration licence on Sunday 25 August 2002, they visited a small cave containing rock art paintings of hand prints located some 1.5 kilometres south of the centre of the area. Mr Hamlett (paras 13-17) and Mr Mongoo (paras 7-10) describe the site and the reasons for its significance. The cave contains paintings of mainly women’s and children’s hands, some of which were printed from ochre. They were put there by ‘older people’ when they camped for shelter in the rocks. Families and children also camped there because there was a good source of food in the vicinity. Mr Mongoo says it may have been a women’s site. It is a spiritual place connected to the dreaming of the claimant group. My finding is that this is a site of particular significance to the native title party in accordance with their traditions.
With respect to sites on the balance of the tenement, the evidence is that it lies between Wilgie Mia some 40 kilometres to the north and Walga Rock some 10 kilometres to the south. The Tribunal has already found the Weld Ranges is a significant area to the native title party in accordance with their traditions and that Wilgie Mia (a source of ochre) is one of the sites of particular significance within the Ranges. It is an area and site of significance to all Aboriginal people in the general region (see WO01/180 at paras [53]-[56] and WO01/486 at paras [14]-[17]). The evidence in this matter is that Walga Rock is also a site of particular significance being an important rock art site (Colin Hamlett - paras 7-9; Lance Mongoo - para 9).
The question to be decided is whether the evidence establishes on the balance of probabilities that there are other sites of particular significance to the native title party in accordance with their traditions on the tenement area. In my view it does, even though the precise location of each site is not identified. The basis for this finding is that the tenement is located between two areas of acknowledged significance and the topography of the area suggests that there are other caves (nunggas) with paintings similar to those at Walga Rock or the site photographed by Ms Savage. The evidence establishes that in the past old people from the Wajarri group walked and camped through the area of the exploration licence. The area is covered by rocky outcrops and breakaways which contain caves which probably have rock art in them (Colin Hamlett – paras 7-9, 19-21; Lance Mongoo – para 11). Mr Hamlett (para 40) also deposes to the existence of wudajis and mundungu [spirit people] which live in the hills and the caves of the tenement area which is corroborative of the fact that there are sites of particular significance on the area apart from the rock art cave inspected on 25 August 2002. A site of particular significance under s 237(b) is one of special or more than ordinary significance and the nature of the significance must be capable of identification (see cases cited in WO01/180 at [22]). The evidence supports a positive finding on these matters.
None of these sites is a registered site under the Aboriginal Heritage Act 1972 (WA) but it is accepted that the Register is not a complete record of all Aboriginal sites in Western Australia. The protective provisions of that Act apply whether or not a site is on the Register.
I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act 1972 (WA) are sufficient to ensure that it is unlikely (there is no real risk) of the area or sites being interfered with. The Tribunal has often but not necessarily held this to be the case. Where an area is rich in sites or the whole area is of particular significance, the Tribunal has found that the Aboriginal Heritage Act is inadequate to provide the necessary protection without negotiations with the native title party (see cases cited in Walley (WO01/179 and WO01/180) at [51]). This is not a case where I find that the exploration licence area is necessarily rich in sites or that the whole area is of particular significance. Rather, the area contains some sites of particular significance, the precise location of which is unknown, as well as the rock art site inspected by the claimants. These are likely to be interfered with unless the grantee party seeks the guidance of the native title party.
The grantee party has provided no evidence of what it intends to do to protect the areas or sites identified by the evidence. A number of options are discussed in the Government party’s Guidelines for Aboriginal Consultation by Mineral and Petroleum Exploration, which is sent to each licensee but there is no evidence that the grantee party has considered these in the circumstances of the grant of this tenement. Even though I accept that the grantee party will obey the law this is a case where the exact location of all the sites of particular significance is not known and there is a real risk of interference with them unless the normal negotiations under s 31(1)(b) of the Act take place. The evidence suggests that the negotiations will lead to an agreement about some form of site survey or clearance being carried out by members of the claimant group.
Determination
The determination of the Tribunal is that the grant of exploration licence 20/473 to Richmond Resources Pty Ltd is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
18 November 2002
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