Smith v CRA Exploration Pty Ltd

[1996] NNTTA 32

Reported at (1996) 133 FLR 251

NATIONAL NATIVE TITLE TRIBUNAL

Clarrie Smith on behalf of the Nganawongka People/Western Australia/CRA Exploration Pty Ltd, [1996] NNTTA 32 (26 July 1996)

Application Nos:        WO95/21 Nganawongka No. 2

Heard together with: WO95/22, WO95/23, WO95/11, WO95/34

IN THE MATTER of the Native Title Act 1993 (Cth)
and

IN THE MATTER of an Inquiry Into Objections To Inclusion
In An Expedited Procedure

REASONS FOR DETERMINATION

Clarrie Smith on behalf of the Nganawongka People
(native title party)
- and -
State of Western Australia
(Government party)
- and -
CRA Exploration Pty Ltd
 (grantee parties)

Tribunal:           The Hon. C.J. Sumner, Member
Place:               Perth
Date:                 26 July 1996

Catchwords:      Native title - objection to inclusion in an expedited procedure - proposed grant of exploration licences - "remitted to Tribunal after appeal to Federal Court" - whether acts directly interfere with community life - "directly interfere" - "community life" - Tribunal obliged to apply the law as stated by the Federal Court - evidence of spiritual connection with land - certain acts not acts attracting the expedited procedure

Legislation:       Native Title Act 1993 (Cth) s 237(a)

Cases:    Ward v Western Australia (1996) 136 ALR 557

Words & Phrases: remitted to Tribunal after appeal to Federal Court, directly interfere, community life

Official determination follows

NATIONAL NATIVE TITLE TRIBUNAL

INQUIRY INTO OBJECTIONS TO INCLUSION
IN AN EXPEDITED PROCEDURE

IN THE MATTER of the Native Title Act 1993 (Cth)

Applications:    WO95/21 Nganawongka No. 2

WO95/22 Nganawongka No. 3

WO95/23 Nganawongka No. 4

Clarrie Smith
- and -
State of Western Australia
- and -
CRA Exploration Pty Ltd (WO95/21);
BHP Exploration Pty Ltd (WO95/22);  and
Asian Mining NL and Sorna Pty Ltd (WO95/23)

Application:    WO95/11 Miriuwung-Gajerrong People

Ben Ward & Ors
- and -
State of Western Australia
- and -
Australian United Gold NL

Application:    WO95/34 Miriuwung-Gajerrong People

Ben Ward & Ors
- and -
State of Western Australia
- and -
CRA Exploration Pty Ltd

Tribunal:       The Hon. C.J. Sumner, Member
Place:             Perth
Date:              26 July 1996

REASONS FOR DETERMINATION

1. BACKGROUND

These applications have been remitted to the Tribunal following successful appeals to the Federal Court from determinations made by the Tribunal under s.32(4) of the Native Title Act 1993 (Cth) ('the Act') that the grant of certain exploration licences attracted the expedited procedure.

In each case the State of Western Australia ('the Government party') proposes, under the Mining Act 1978 (WA), to grant exploration licences to certain mining companies ('the grantee parties') over land which is the subject of applications for determination of native title lodged and registered with the Tribunal.

The applicants for determination of native title are registered native title claimants and are the 'native title parties' in these proceedings (s.253, s.29(2)(b) and s.30(a)). The details of each application are:

NNTT Nos. WO95/21, 22 & 23 (Federal Court No. WAG 6007 of 1995)

The three applications were heard together by the Tribunal.

WO95/21
Native title party:  Clarrie Smith, on behalf of the Nganawongka people
Grantee party:  CRA Exploration Pty Ltd
Exploration licence:  E 52/961
Area:  Approximately 176.4 square kilometres
Location:  150 kms south-west of Newman in the Shire of Meekatharra
Date of original determination:      11 December 1995

WO95/22
Native title party:  Clarrie Smith, on behalf of the Nganawongka people
Grantee party:  BHP Minerals Pty Ltd
Exploration licence:  E 52/996 and E 52/997
Area:  Approximately 393 square kilometres
Location:  25 kms east of Egerton Mining Locality in the Shire of Meekatharra
Date of original determination:      11 December 1995

WO95/23
Native title party:  Clarrie Smith, on behalf of the Nganawongka people
Grantee party:  Asian Mining NL and Sorna Pty Ltd
Exploration licence:  E 52/965 and E 52/966
Area:  Approximately 350 square kilometres
Location:  86 kms south of Newman in the Shire of Meekatharra
Date of original determination:      11 December 1995

NNTT No. WO95/11 (Federal Court No. WAG 6006 of 1995)

Native title party:  Ben Ward and 17 others, on behalf of the Miriuwung-Gajerrong people
Grantee party:  Australian United Gold NL
Exploration licence:  E 80/1772
Area:  Approximately 67.2 square kilometres
Location:  Barnett Point in the Shire of Wyndham-East Kimberley
Date of original determination:      11 December 1995

NNTT No. WO95/34 (Federal Court No. WAG 6002 of 1996)

Native title party:  Ben Ward and 17 others, on behalf of the Miriuwung-Gajerrong people
Grantee party:  CRA Exploration Pty Ltd
Exploration licence:  E 80/2086
Area:  Approximately 98 square kilometres
Location:  4 kms east of Kununurra in the Shire of Wyndham-East Kimberley

Date of original determination:      29 February 1996

It is not necessary to recite all of the factual circumstances of each application.  They are fully outlined in the original reasons for determination and are not repeated here, except in so far as it is necessary to explain the Tribunal's conclusions on the matter remitted to it.  I confirm the findings of fact made in the original reasons for determination.

A proposal to grant an exploration licence is the creation of a right to mine under s.26(2) of the Act and is a future permissible act to which Subdivision B ('Right to negotiate') of Division 3 of Part 2 of the Act applies. This means that, unless the act is an act attracting the expedited procedure, the Government party must negotiate in good faith with the native title parties and the grantee parties with a view to obtaining the agreement of the native title parties to the doing of the act (ss.31(1), 32(5)).

In each case the Government party gave notice pursuant to s.29 of the Act of its intention to grant the exploration licences and included a statement that it considered the act was an act attracting the expedited procedure (s.29(4)). The native title parties lodged an objection to inclusion in an expedited procedure application. The Tribunal conducted an inquiry and in each case determined that the grant of the exploration licences attracted the expedited procedure (s.32(4)), thus ensuring that the act could be validly done (s.28(1)(c)).

The native title parties appealed to the Federal Court from the determinations of the Tribunal.  The Federal Court heard all the appeals together and on 9 May 1996 judgment was delivered ('Ward'). Ward v Western Australia & Australian United Gold NL;  Smith v Western Australia & CRA Exploration P/L, BHP Exploration P/L, Asian Mining NL & Sorna P/L;  Ward v Western Australia & CRA Exploration P/L, Federal Court, Carr J, unreported, 9 May 1996  The Federal Court upheld the appeals and decided that the Tribunal had misdirected itself with respect to one aspect of the law.  The orders of the Court made on 31 May 1996 were the same in each case, namely:

'THE COURT ORDERS THAT:

1.The appeal be allowed in respect of ground (i) [ground (e) in WAG 6002 of 1996] of the grounds of appeal.

2.The appeal is otherwise dismissed.

3.The matter the subject of ground of appeal (i) [ground (e) in WAG 6002 of 1996] be remitted to the National Native Title Tribunal for determination in accordance with the reasons for decision of this Court.

4.The National Native Title Tribunal determine whether further evidence is to be heard.

5.There be no order as to costs.'

The ground of appeal in respect of which the appeal was allowed was that the Tribunal had erred in law in determining that s.237(a) of the Act should be interpreted as involving only physical interference.

Following receipt of the Minute of Orders from the Federal Court I invited the parties to provide written submissions in relation to the matter remitted to the Tribunal and in particular to advise whether there was a request to hear further evidence and/or make oral submissions.  Following a directions hearing, I decided in the first instance to deal with the matter on the basis of the written submissions and the evidence produced at the original hearings.

1. LEGAL ISSUES

Section 237 of the Act sets out when a future act is an act attracting the expedited procedure. It provides:

'Act attracting the expedited procedure

237. 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.'

This section requires the Tribunal to make a predictive assessment of whether the grant of the exploration licences and the exercise of rights conferred by them would or would not be likely to result in the interference or disturbance referred to (Ward at 25-26).

2.1      Community life (s.237(a))

The only matter remitted to the Tribunal relates to the interpretation of s.237(a).

In its original determinations the Tribunal held that the direct interference with community life referred to in s.237(a) had to be physical interference. The Federal Court found that the Tribunal had misdirected itself as to the law and explained its reasons:

'However, in my respectful opinion, there is no justification for requiring a direct interference with community life also to be a physical interference. Section 237(a), in stating the first requirement of an act attracting the expedited procedure, requires that the act does not directly interfere with the community life of the native title holders. It does not say that such direct interference has to be of a physical type. "Community life" might include all sorts of spiritual and the like activities which might be directly interfered with without any physical interference. For example, the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds ten kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life.  Members of that community might well be very distressed by the thought of such activities.  The spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by "community life".  ...

In my view, the Tribunal erred when it defined the interference referred to in s.237(a) as being confined to physical interference.' (Ward per Carr J at 26-27)  [Underlining added]

Except in relation to the point at issue the Federal Court did not attempt to elaborate on the meaning of the words 'directly interfere with community life'.  An exhaustive analysis of them is not called for or helpful in this case, but some comment is appropriate given the previous decisions of the Tribunal and the submissions made by the Government party and the grantee parties.

Firstly, in the passage underlined the Federal Court has given an example of facts that might constitute direct interference with non-physical aspects of community life.  There have been submissions in other inquiries conducted by the Tribunal since Ward that the Tribunal should decide that the Federal Court was wrong in the example which it gave of what could constitute direct interference with community life.  Any submission of this kind is doomed to failure in this Tribunal.  The Tribunal is obliged to apply the law as stated by the Federal Court.  The Tribunal must consider on the facts of a particular case whether there is likely or not likely to be direct interference with community life.  The Federal Court has found as a matter of law that the facts given in its example are capable of constituting direct interference with community life.  The facts of each case will need to be examined to see whether the 'thought of intensive exploration activities' does or does not directly interfere with a native title party's community life as now interpreted by the Federal Court.  The Tribunal, however, must accept that the thought of such activity is capable of doing so.  If the facts of a particular case were similar to the example given by the Federal Court, then the Tribunal would have little choice but to find that the expedited procedure did not apply.

Since the decision in Ward, the Tribunal has found in at least three inquiries WO96/21, Pam O'Neil, James/Roebuck Resources NL, 5 June 1996;  WO96/12, Kim Wilson, Meredith & Scott/Acacia Resources Ltd, J Janke and Sons of Gwalia Ltd, 13 June 1996 and WO96/7 & 10, Kim Wilson, Dann & Goonack (Unggumi Ngarinyin)/Russell, 21 June 1996. that the expedited procedure is not attracted.  In coming to these determinations it has relied on the statement of the law enunciated by the Federal Court and the factual example given.  There could be argument about whether the factual circumstances outlined by the Federal Court are sufficient to constitute direct interference with community life, even in the non-physical sense, but the parties who wish to contest this will have to do so in another forum.

Secondly, in WO95/16Cheinmora & Ors (Ooombulgurri)/Striker Resources NL, Thompson & Australian United Gold NL, 19 January 1996, at 26. the Tribunal found that community means people living together in a particular locality rather than community defined by reference to the traditions and customs of native title parties.  I think it is implicit in Ward that community should not now be given this restricted meaning.  The word 'community' can bear the meaning of a body of people having a religion, profession, etc in common, even if not living in the same locality.  Where it can be shown that there is a community of native title holders based on their having customs and traditions in common then their community life could be interfered with in the non-physical way described in Ward.

Thirdly, it must be community life that is interfered with.  This will be a question of fact to be looked at in the circumstances of each case.  I doubt whether the fact that one or two people may be upset or worried about the proposed activity is sufficient.  The exploration activity has to interfere with the life of the community, that is, with the life of the body of people who as a group live in a locality or who as a group have certain customs, traditions and spiritual beliefs in common.

Fourthly, some meaning has to be given to the word 'directly' which appears in s.237(a) but not in s.237(b). The adjective 'direct' in this sense is defined in the New Shorter Oxford Dictionary as 'existing or occurring without intermediaries or intervention' or 'immediate'. 'Immediate' is defined in the case of action between two things as something which occurs 'without any intervening medium or agency'. The Government party has argued that the use of the word 'directly' is a reference to causation. That is, the grant of the exploration licence, including the lawful activities of the grantee party must directly cause the interference. The Government party submits that well established principles of causation in the law of torts can be applied here. The High Court has recently stressed the need to apply a practical and commonsense approach to all issues of factual causation in the law of torts. No test, including the 'but for' test, can be a definitive test for causation. It has rejected the old, too simple tests for cause, such as the 'real cause', 'effective cause', 'last opportunity' and 'last clear chance' tests. The Laws of Australia, Law Book Co Ltd, Vol 33, Ch 11 at 133 citing March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

I do not think directly can be interpreted to mean solely caused by.  There may be a number of things which cause interference with community life.  If what the grantee party is able to do in lawfully exercising its rights under the terms of the grant is likely to cause direct interference, even if it is only one of the things or causes, then the expedited procedure is not attracted.

The fact and degree of interference must be examined in each case and using a common sense approach based on the ordinary meaning of the words, a decision made on whether the interference is direct. 

This approach is supported by judicial authority.  In Adelaide Development Co Pty Ltd v Corporation of the City of Adelaide 74 LGRA 15 the South Australian Supreme Court considered the meaning of ss.24(4) and 24(5) of the City of Adelaide Development Control Act 1976 (SA) which provide that a 'Development that will directly affect, or has directly affected, an item of State heritage' must be referred by the Council to the Minister and cannot be approved without the concurrence of the City of Adelaide Planning Commission. The Court said:

'The expression "will directly affect" in this context is not a term of art.  It means to have an immediate effect upon or to have an immediate influence upon:  see the definitions of "directly" and "affect" and "affected" in the Oxford English Dictionary and the Macquarie Dictionary.  I am conscious that in attempting to define the expression, I am resorting to synonyms but the subsections are, I think, intended to apply when the proposal will produce an effect upon or have some consequence for an item of State heritage.  The expression "will directly affect" suggests a casual relationship between the proposed development and a heritage item.  The effect could be detrimental or beneficial.  The word "directly" requires that the casual effect of the proposed development be direct or immediate:  it is intended to exclude that which is indirect or remote.  ...

Whether a proposal will directly affect a heritage item will be a question of fact and degree in every case and each case will have to be considered in the light of its own facts and circumstances.'  (per Debelle J at 29-30)

The same approach should be adopted with respect to s.237(b) where there is no requirement for the interference to be direct.  Evidence of indirect or remote interference with sites of particular significance may be sufficient to enable the Tribunal to find that the expedited procedure is not attracted.

Based on its view that the word 'directly' is a reference to causation, the Government party argued that, for example, the Tribunal should distinguish between evidence from the native title parties with respect to how they would feel about unauthorised exploration activity on the land and their previous experience with mining companies from evidence from native title parties with respect to possible interference with their community life, physical and spiritual, caused by the grantee party's activities.  In my view pre-existing feelings about unauthorised exploration based on past experience with mining companies do not necessarily mean that the proposed activities of grantee parties will not directly interference with community life if those activities cause further upset, distress or anxiety in the community.

The Government party also submitted that evidence of direct interference with physical or non-physical aspects of community life must be weighed up against evidence from the Government and grantee parties of the likely pre-exploration consultation between the grantee party and the native title parties and evidence of the legislative and regulatory protections in place. That is, the likelihood of consultation with the native title parties will minimise the chance of any direct interference with the non-physical aspect of the native title parties' community life. There is evidence that the grantee parties in WO95/11, WO95/21 and 22 and WO 95/34 will consult with the native title parties. In the case of s.237(a) this consultation may not be enough to ensure that there is not likely to be direct interference with community life. The Tribunal has found in relation to s.237(b) that, in order to act lawfully and comply with the Aboriginal Heritage Act 1972 grantee parties will need to consult with native title parties and that this will generally, but not always, ensure that there is not likely to be interference with sites of particular significance. In the case of s.237(a) there is no legislation or regulations which reinforce the need for such consultation. The grantee party may consult and still proceed in a way which directly interferes with community life by causing distress, worry or anxiety to the native title parties about the activity on their land. There is nothing to require the grantee parties to act in accordance with the wishes of the native title parties. It is possible, depending on the facts, that consultation may ameliorate the community's feelings of worry and concern so that there is not likely to be direct interference with community life. I cannot reach that conclusion on the evidence in these cases.

The grantee parties in WO95/11, WO95/21 and 22, and WO95/34 contended that mere unease or anxiety among community members regarding the presence of the grantee parties is insufficient to constitute direct interference with community life.  They argued that there is only direct interference with the spiritual part of community life if there is some effect upon the native title parties spiritual activity, such as ceremonies, and not merely unease or anxiety.  The unease or anxiety must translate into inability or difficulty in carrying out spiritual activities before it can be said that there is direct interference.  Anxiety and unease are parts of every day life and are 'incidents' of community life but the causing of it is only an indirect effect on community life, the grantee parties argued.

Each case must be considered on its own facts and it may be that if the only evidence is of unease or anxiety which will be caused by the exploration activity, then the Tribunal may find that without more there is not likely to be direct interference with community life.  However, it has to be acknowledged that the Federal Court in Ward, in the example it gave, referred to 'the very thought' of intensive exploration activities being such as to upset an Aboriginal community and directly interfere with its community life.  I cannot conclude that unease or anxiety will never constitute direct interference with community life.

2.2      Further evidence

The Federal Court in remitting a case to the Tribunal following an appeal may include an order that the case be decided either with or without the hearing of further evidence (s.169(7)(b)).  In these cases the Federal Court ordered that the Tribunal determine whether further evidence is to be heard.  Whether to do so must be considered on the basis of general principle.

In a recent future act determination application ('Waljen') WF96/3, Western Australia/Thomas (Waljen)/Austwhim Resources NL and WF96/12, Western Australia/Thomas (Waljen)/Aurora Gold (W.A.) Ltd, 17 July 1996. the Tribunal has dealt with the nature of right to negotiate inquiries which include inquiries into objection to inclusion in an expedited procedure applications.  The Tribunal took into account the decision of the Federal Court, in Ward in coming to its conclusions.  I have been guided by the principles set out therein.

I accept the native title party's submission that there is no onus of proof upon any party to these proceedings.  It also submitted that Ward (at 24) is authority for the proposition that it is not necessary that evidence be produced that shows that the grant of an exploration licence and lawful activities conducted under it are likely to result in one or other of the three types of interference referred to in s.237. This does not mean that the Tribunal can act without evidence. The comments in Ward from which the native title party has drawn this proposition were directed to the question of the burden of proof.  The Federal Court went on to say that the Tribunal may seek to obtain its own evidence.  In other sections of the judgment Carr J makes it clear that while the Tribunal can conduct its own inquiry or research it is under no obligation to do so (at 23).

The Tribunal is not under an obligation to make out a party's case for it. Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 per Wilcox J cited in Waljen at 42-43.  In Waljen, given the central role which is given to parties in the right to negotiate inquiries, the Tribunal concluded that ordinarily the parties have the primary responsibility for presenting evidence and in general if they fail to do so they cannot complain if the Tribunal gives little or no weight to their contentions.  It also concluded that the Tribunal is able to suggest to the parties other evidence which might be obtained and the consequences of not doing so.

The inquiries into all of these matters were conducted on the basis that the interpretation of s.237(a) argued for by the native title party and accepted by the Federal Court was open to the Tribunal. The written statement of contentions filed by the native title parties asserted that in the circumstances of the native title party's obligation to the land, a lack of influence or control over, or even knowledge of, what the grantee may do on that land will directly interfere with their community life.

All these inquiries were conducted after and in the knowledge of the decision of Deputy President Seaman in WO95/7 (Irruntyju-Papulankutja/Broadmeadows, 6 October 1995) where he held that direct interference was confined to physical aspects of community life.  Despite this, there was no restriction placed on any evidence that the native title party could produce and some of the findings of fact in WO95/21, 22 & 23 and WO95/34 encompass spiritual aspects of community life.  The question arises whether, because of this, I should confine myself to the evidence which has already been produced.

The native title party argued that if there is any doubt on the evidence then the appropriate course is for the Tribunal to call further evidence. It might be that the native title parties concentrated their evidence on s.237(b) and may have limited themselves in relation to s237(a) to some extent because of the decision in Irruntyju-Papulankutja. Accordingly, I have decided that if there is insufficient evidence to enable me to properly consider s.237(a) then I should invite the parties to provide further evidence.

It is neither appropriate nor necessary in the circumstances of these cases for the Tribunal to conduct its own inquiries.  This course of action is consistent with the principles outlined by the Federal Court in Ward and by the Tribunal in Waljen and with the proposition that in these inquiries the Tribunal will rely principally on the parties to produce evidence.

1. FACTS AND CONCLUSIONS

3.1WO95/21, 22 & 23 - Clarrie Smith (Nganawongka People)/CRA Exploration Pty Ltd, BHP Exploration Pty Ltd & Asian Mining NL & Sorna Pty Ltd

3.1.1    Facts

The facts which are relevant to the issue before me are set out at p.13 of the original reasons for determination.

'He [Mr Clarrie Smith] was the driving force behind the establishment of the community at Jorga Jinna.  He and his community have a strong desire to bring children up in the traditional way of law and culture, to teach hunting and how to track and get food from the land.  There is a desire to be self-sufficient, to 'do their own stuff', bring their culture back and to teach the young fellows the language.  'It is important to be on your own country, especially to be buried there' was an expression used at the meeting.

Mr Smith has an obligation to look after the country because he has been through the law.  Mr Smith feels a special responsibility for the land in accordance with Aboriginal traditions and certain activity, including mining exploration on the land, of which he is unaware, causes hurt and concern to him and his community.  The land means a lot, especially to the elders, and feelings are hurt if people go behind their back.  'If I vandalise a church, what would you think.'  'If someone dug your mother's grave, how would you feel' were expressions used at the meeting.  The feeling of hurt occurs even up to 30-40 kms away and is felt by such activities as drilling or cutting down medicine trees.  The community felt that drilling next to water holes for bores may drain the streams although there was no specific evidence to this effect  According to traditional mythology the shooting of a water snake could cause a spring to go dry.

According to Aboriginal tradition punishment is important if people from outside the area cut trees or wood, go to a pool in someone else's country or come on to country to caves or hills without permission.  There is a traditional connection to certain hills which were used as means of communicating by signals.

Mr Smith was not happy with sites being placed on the Register because people could take material away and sell it even though this is against the law.  It was his job to make sure the material stays where it is.'

The evidence from Mr Smith and others was taken at a meeting at Yulga Jinna in the country of the native title party at which there were over 20 members of the community present at various times.  The specific findings which I made, primarily based on the evidence of Mr Smith, were confirmed by my impressions of the concern demonstrated by the Nganawongka community by their presence at and participation in this meeting which was held as part of the inquiry.

This evidence demonstrates that the grant of the exploration licence is likely to directly interfere with the non-physical aspects of the community life of the native title parties in the way described by the Federal Court.  The Government party should negotiate with the native title party and grantee party about the proposed grant.

3.1.2    Determination

The determination of the Tribunal is that the grants of Exploration Licences 52/961 to CRA Exploration Pty Ltd, 52/996 and 52/997 to BHP Minerals Pty Ltd and 52/965 and 52/966 to Asian Mining NL and Sorna NL are not acts attracting the expedited procedure. In accordance with s.32(5) of the Act, the Tribunal requests the Government party and the grantee parties to negotiate in good faith with the native title party 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.

3.2WO95/34 - Ben Ward & Ors (Miriuwung-Gajerrong People/CRA Exploration Pty Ltd

3.2.1    Facts

The facts which are relevant to the issue before me are set out at p.8 of the original reasons for determination in the following paragraphs:

'12.       According to the traditional law and custom of the Miriuwung-Gajerrong people, other people who wish to gain access to areas which are not their proper country have to ask permission or have to be invited.  To come onto country without permission breaks the law of the Miriuwung-Gajerrong people and if people did something like that in the old days they might have been killed.  The people who have the law for the country feel sorry if others, including mining companies, come onto country without permission.  The people who have the law for the country can also get into trouble because they are not looking after the law and country properly.  They might get sung by someone who thinks they are not looking after their law and country and they can get sick and die from that.

13.       In the past mining companies and others have not asked permission of the Miriuwung-Gajerrong people and have messed up sacred places.  This happened when the bottom dam (Kununurra diversion dam) and the top dam (Lake Argyle dam) were built.  When these dams were built a lot of the old people felt sorry for their country and the Miriuwung-Gajerrong people believe that because of this a lot of the old people died.

14.       It is the view of the Miriuwung-Gajerrong people that when mining companies do not ask permission to come onto their country it shows they have no respect for their culture.  According to their law and custom it is breaking their law if dreaming tracks are messed up.  Also if these dreaming tracks are messed up then they believe that all the animals and plants might disappear.  Because of the dreaming tracks running through the country the Miriuwung-Gajerrong people want to sign an agreement with the mining company for a Ngarrangani (site) survey before they start drilling or digging.'

There are active communities of Miriuwung-Gajerrong people who live near or access the lands which are the subject of the proposed exploration licence.  My findings in relation to these were contained in the following paragraph:

'6.         Since 1980 there has been a community at Emu Creek which has up to 40-50 people there at peak times.  It is a permanent community with four houses and a big and small shed.  It is about 1.5 kms from the south west corner of the exploration licence.

There is a community at Cumbarumba about 30 kms north east of Kununurra and which is approximately 10-12 kms from the north-east corner of the exploration licence right on the WA/NT border.  About 30 people live there and people are there most of the year.  There are two houses.  The track to get there traverses the exploration licence area.

Some two years ago the Wilson family started a community called Janama Springs about 1 km north east of Emu Creek community and approximately 1 km from the south west corner of the exploration licence.  All the Wilson family spend time out there several days a week.  There are about 15 who live there part of the time, there being one house that they all stop in at the moment.  From the house these people walk around the country that includes the exploration licence, hunting and looking for bush tucker.

Approximately 1 km east of Janama Springs/Emu Creek at Euna Springs there is a community of up to 10 people who live there part time.  It has been in occasional occupation for 8 years, with people originally living in a bus, but now in tents.'

There were also findings of various aspects of community life occurring on the lands on an active and regular basis.  These findings relating to physical aspects of community life support the findings of an active community life which could be interfered with in its non-physical aspects.  I conclude that my original findings in paragraphs 12 and 14 demonstrate that the grant of the exploration licence is likely to directly interfere with non-physical aspects of the community life of the native title parties in the way described by the Federal Court.

3.2.2    Determination

The determination of the Tribunal is that the grant of Exploration Licence 80/2086 to CRA Exploration 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 party 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.

3.3WO95/11 - Ben Ward & Ors (Miriuwung-Gajerrong People)/Australian United Gold NL

3.3.1    Facts

I cannot accept the native title party's submission that there is sufficient evidence for the Tribunal to determine that the expedited procedure does not apply.  Unless there is further evidence, I would reaffirm the original determination.  The affidavit of Mr Dodger Carlton principally related to the physical effect of exploration activity on the hunting and gathering aspects of community life, which I found was unlikely to constitute direct interference with community life.  Mr Carlton's affidavit was submitted on behalf of all of the applicants for determination of native title and as a representative of the Miriuwung-Gajerrong peoples.  I am prepared to accept that where he says that he is worried about aspects of the proposed exploration that he is speaking on behalf of the Miruwung-Gajerrong peoples.  The 'worry' which he expressed is almost exclusively confined to possible physical interference with community life, which I have found, and the Federal Court has accepted, is not likely to occur.  He was also worried that exploration will mess up the Dreamings for the country.  I found that despite this worry there was not in fact likely to be interference with sites of particular significance and this was accepted by the Federal Court.  Mr Carlton was also worried that if the mining company is allowed to explore they will not consult with the traditional owners.

I have to consider whether the worry about the Dreamings and the mining company not consulting with the traditional owners is likely or not likely to directly interfere with the non-physical aspects of community life.  While such worry ('the very thought' in Carr J's terms) may be capable of directly interfering with community life, in this case I do not think the evidence of the spiritual aspects of community life is such as to lead to the conclusion that it will be directly interfered with.  There is evidence of worry but not that it will necessarily result in direct interference with community life.

There is evidence of a community at Ningbingi, which is an outstation of between 20 and 40 people who live there on and off during the year apart from the wet season when they move to Kununurra and no one lives there.  Ningbingi is about 25 miles south east of the exploration area.  There is no evidence of the spiritual life of the community or how that might be interfered with by the grant of the exploration licence.

I have considered whether it would be appropriate to receive into evidence the affidavits filed in WO95/34 where the native title party is also Mr Ben Ward on behalf of the Miriuwung-Gajerrong people.  Even if I did so, I would still be reluctant to make the findings requested by the native title party.  The areas of land are some 100 kilometres distance apart and the considerations which applied in relation to the communities near Kununurra may not apply in this case.

For the reasons outlined above, the appropriate course in this case is to give the native title party an opportunity to produce further evidence. 

3.3.2    Directions

The native title party is directed to advise the Tribunal within seven days whether it wishes to produce further evidence, and if so, what form that will take.  The Tribunal will then discuss the future conduct of the inquiry with the parties.

The Hon. C.J. Sumner

Member

26 July 1996