The Miriuwung Gajerrong #1 & #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation/Western Australia/Stansmore Resources Pty Ltd
[2013] NNTTA 73
•21 June 2013
NATIONAL NATIVE TITLE TRIBUNAL
The Miriuwung Gajerrong #1 & #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation/Western Australia/Stansmore Resources Pty Ltd [2013] NNTTA 73 (21 June 2013)
Application No: WO2012/0450
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection application
The Miriuwung Gajerrong #1 & #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation (native title party)
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The State of Western Australia (Government party)
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Stansmore Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 21 June 2013
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 26(2), 31, 237
Mining Act 1978 (WA), s 63AA
Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA)
Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, [2007] NNTTA 21
Bardi and Jawi Niimidiman Aboriginal Corporation on behalf of its members/Western Australia/Kimberley Quarry Pty Ltd, [2009] NNTTA 153
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, [2004] NNTTA 31
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little v Oriole Resources Pty Ltd (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, [2007] NNTTA 11
Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia (2008) 167 FCR 340
Silver v Northern Territory (2002) 169 FLR 1
Smith v Western Australia (2001) 108 FCR 442
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, [2007] NNTTA 82
Walley v Western Australia (2002) 169 FLR 437
Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 2008
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17
Representatives of the Ms Dominique Reeves, MG Corporation
native title party: Ms Sacha Cox, MG Corporation
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr Bill Richmond
REASONS FOR DETERMINATION
On 11 January 2012, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4601 (‘the proposed licence’) to Stansmore Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracts the expedited procedure (that is, an act which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises 156 graticular blocks (approximately 436.8 square kilometres), situated 99 kilometres north east of Wyndham in the Shire of Wyndham-East Kimberly. The proposed licence is overlapped by the determined area of Miriuwung Gajerrong #1 (WC1994/002 – determined on 9 December 2003) at 39.40 percent, and Miriuwung Gajerrong #4 (WC2004/004 – determined on 24 November 2006) at 13.31 per cent.
On 11 May 2012, Miriuwung Gajerrong (Native Title Body Corporate) Aboriginal Corporation (‘the native title party’) lodged an expedited procedure objection application in relation to the proposed licence (designated by the Tribunal as WO2012/0450). The native title party is the registered native title body corporate that holds native title on trust for the Miriuwung Gajerrong #1 and #4 native title holders in respect of the determination areas, and makes the application on their behalf.
On 20 June 2012, Deputy President Sosso was appointed Member for the purposes of conducting an inquiry to determine whether or not the expedited procedure is attracted. In accordance with what was then standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and evidence for the inquiry. These directions allowed a four month period, after the s 29 closing date for the lodgement of the objection, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At a preliminary conference on 3 July 2012, the native title party and grantee party indicated that discussions were taking place regarding a heritage protection agreement in respect of the proposed licence. Between August and December 2012, the Tribunal convened a number of status conferences to monitor the parties’ progress towards a negotiated outcome. Directions were varied to allow further time for the parties to conclude the negotiations however by 5 December 2012, it had become apparent to the Tribunal that parties were making insufficient progress towards the disposal of the objection, and the matter was adjourned to a listing hearing on 24 January 2013.
On 7 November 2012, I was appointed Member for the purposes of the conduct of an inquiry into the application. The Government party provided documents relating to the proposed licence on 7 December 2012, followed by a statement of contentions on 8 February 2013. The native title party provided a statement of contentions, together with the affidavits of Mr Button Jones and Mr Edward Thomas Carlton, on 13 December 2012. On 21 December 2012, the grantee party provided some brief submissions. On 13 February 2013 a map created by the Tribunal’s Geospatial Unit showing the subject tenement and surrounding areas was provided to parties, with the Tribunal advising the map may be used for the purpose of this inquiry. On 26 February 2013, at the request of the grantee party, a further map was created and distributed to parties that showed the subject tenement in larger scale. On 27 February 2013, a directions hearing was held to discuss the tenure of the subject tenement and to clarify the areas over which the Tribunal does and does not have jurisdiction. At the hearing I noted that the Tribunal’s jurisdiction does not extend seaward of the mean high water mark, nor does it apply to areas where native title has been extinguished. Subsequent to this hearing, the Department of Mines and Petroleum (‘DMP’) circulated two maps which assist in identifying the low and high water marks.
At the listing hearing on 21 January 2013, the Government and grantee party indicated that they were content for the matter to be determined ‘on the papers’ pursuant to s 151(2) of the Act (that is, without a formal hearing). The native title party later supported this position via email on 6 February 2013. I have considered the material provided in the course of the inquiry, and I am satisfied that it is appropriate to proceed to determine the matter on the papers.
Legal principles
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.
In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [34]) have been strengthened.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38] and [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory (2002) 169 FLR 1.
Evidence in Relation to the Proposed Act
Tengraph ‘Quick Appraisal’ documentation establishes the underlying land tenure of the proposed licence to be as follows:
Vacant Crown Land – approximately 52.5 per cent
Carlton Hill Pastoral Lease (3114/1176) – 10.9 per cent
Carlton Hill Pastoral Lease Exclusion Area (2015) – 8 per cent
Rain Forest Area – less than 1 per cent
Reserve areas relating to Conservation and Traditional Aboriginal Uses, conservation of Flora and Fauna and a Wildlife Sanctuary – 8, 2.7 and less than 1 per cent respectively
The Quick Appraisal establishes that 99.9 per cent of the proposed tenement area is listed as a Wetland of International Importance through the Department of Sustainability, Environment, Water, Population and Communities, and that 74.7 per cent of the proposed tenement area is subject to the Ord River 2 Indigenous Land Use Agreement. The Quick Appraisal also indicates that no active tenements encroach on the proposed licence however seven ‘dead’ exploration licences (active between 1994 and 2008, overlapping between30.5 and less than one per cent). A large number of mineral claims have been granted over the area. Tribunal mapping indicates the nearest Aboriginal community to be approximately 35 kilometres south of the proposed tenement.
An extract from the Aboriginal Sites Database maintained by the Department of Indigenous Affairs (‘DIA’) under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) shows that the following registered sites and ‘other heritage places’ have been recorded within the proposed tenement area:
Site ID: 12738 – Ganggarryu, ceremonial, mythological site (registered site, closed access, no restriction)
Site ID: 12785 – Ngarrmu/ngarrmiyu, ceremonial, mythological, repository/cache, artefacts/scatter, midden/scatter (registered site, closed access, no restrictions)
Site ID: 12786 – Nyungenngun, ceremonial, mythological, artefacts/scatter, midden/scatter (registered site, closed access, no restrictions)
- Site ID: 12787 – Wundarri, ceremonial, mythological, quarry, artefacts/scatter, midden/scatter (registered site, closed access, no restrictions)
- Site ID: 12788 – Springs Complex, ceremonial, mythological, repository/cache, skeletal material/burial, artefacts/scatter, midden/scatter (registered site, closed access, no restrictions)
- Site ID: 12789 – Balu-Gunanjarr Complex, ceremonial, mythological, repository/cache, skeletal material/burial, painting, engraving, midden/scatter, grinding patches/grooves (registered site, closed access, no restrictions)
- Site ID: 12951 – Mijing, ceremonial, mythological, (registered site, closed access, no restrictions)
- Site ID: 12994 – Knob Peak Complex, ceremonial, mythological, skeletal material/burial, man-made structure (registered site, closed access, no restrictions)
- Site ID: 13845 – Pelican Islet 1, engraving (registered site, open access, no restrictions)
- Site ID: 13557 – Utting Gap, quarry, artefacts/scatter (insufficient information, open access, no restrictions
- Site ID: 13846 – Pelican Islet 2, midden/scatter (insufficient information, open access, no restrictions)
Mapping provided by the Tribunal’s geospatial unit indicates that the proposed licence comprises areas of both land and sea. The right to negotiate provisions of the Act only apply to the extent that the future act relates to a place on the landward side of the mean high water mark of the sea (s 26(2)). This means that the Tribunal has no jurisdiction to consider whether the proposed exploration is likely to cause the s 237 interference or disturbance in areas covered by the proposed licence which are to the seaward side of the mean high water mark. However the Tribunal has previously found that evidence relating to community or social activities, or sites or areas of particular significance beyond the mean high water mark may be relevant to assessing the frequency and nature of community or social activities or existence of areas or sites of significance on the land areas (Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, [2007] NNTTA 82 at [18]).
Government party submissions include a Draft Tenement Endorsement and Conditions Extract which indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration and prospecting licences in Western Australia (see Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 at [11]-[12]). Additional conditions to be imposed require that any pastoral or grazing lessee be notified of the grant or transfer of the proposed licence and of certain exploration activities (Conditions 5-6), prior written consent of the Minister for Mines & Petroleum is obtained before commencing any exploration activities on Conservation of Flora and Fauna Reserve 31967, Wildlife Sanctuary Reserve 29541, Conservation and Traditional Uses Reserve 49691, any foreshore, sea bed or navigable waters, and File Notation Area 9079 (Condition 7), the prohibition of interference with the Medusa Banks Geodetic Survey Stations and the restriction of mining within 15 meters thereof to be confined to a depth below 15 meters from the natural surface (Condition 8), and the prohibition of any Mining Act tenement activities within 200 metres of RAMSAR or ANCA listed wetlands unless written permission of the Department of Environment and Conservation is first obtained (Condition 9).
The following endorsements (which differ from conditions in that the licensee is not liable for forfeiture if breached) will be imposed on the proposed licences:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3.The land the subject of this licence affects Rainforest areas and Rainforest Monitoring Sites. The licensee is advised to contact the Department of Environment and Conservation for detailed information on the management requirements for rainforest areas and rainforest monitoring site or sites present within the tenement area.
The Government party’s contentions (‘GVP Contentions’) indicate that a further condition will be placed on the grant of the proposed licence requiring the grantee party, at the request of the native title party, to execute the Regional Standard Heritage Agreement (‘RSHA’) in its favour. The condition is expressed as follows:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Miriuwung and Gajerrong #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation, the native title prescribed body corporate holding the determined native title of the Miriuwung and Gajerrong people, the applicants in Federal Court application no. WAD124/04 (WC04/4), such request being sent by pre-paid post to reach the Licensee’s address, Stansmore Resources Pty Ltd, PO Box 1775, West Perth WA 6872, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Miriuwung and Gajerrong #4 (Native Title Prescribed Body Corporate) Aboriginal Corporation, Regional Standard Heritage Agreement (‘RSHA’) endorsed by peak industry groups and offered by the Kimberly Land Council.
Contentions and Evidence provided by the native title party
The native title party contends that the grant of the proposed licence is likely to:
· interfere directly with the carrying on of the community and/or social activities of the native title party;
· interfere with areas or sites of significance to the native title party in relation to the land or waters concerned; and
· 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.
In support of its contentions, the native title party relies on the affidavits of Mr Edward Thomas Carlton and Mr Button Jones, both sworn 13 December 2012.
The affidavit of Edward Thomas Carlton is made in the following terms:
I, Edward Thomas Carlton, of Acacia Avenue in Kununurra in the State of Western Australia, affirm:
1. My name is Edward Thomas (Teddy) Carlton. My Aboriginal name is Yumbun. I am a proud Miriuwung man.
2. I am a member of both the Miriuwung and Gajerrong #1 and the Miriuwung and Gajerrong #4 Native Title Determinations and am considered a senior person withing the community. I fought hard with other Miriuwung and Gajerrong people to have our native title rights over our country recognised.
3. I have been director of Yawoorroong Miriuwung and Gajerrong Yirrgeb Noong Dawang Aboriginal Corporation (MG Corporation) for many many years and am well known in the community. I have also served as the Chairperson of MG Corporation for many years at different times, as well as other community organisations in the area.
4. I know the areas where the Grantee Party has applied for Exploration Licence Number E80/4601 (the exploration licence areas), very well because I have lived, travelled and worked all over that country. I was born and raised there and have taught and practised law and culture there. I have been shown maps of the application area – the maps I was shown are attached to this affidavit and marked “A”, “B” and “C”.
5. I do not need to look at maps to know that country. I was born and raised on Carlton Hill station. I mustered cattle all over that country. I know it like the back of my hand.
6. The exploration licence area goes all the way to the coast and beyond, from Attack Bore and Brolga Springs to Rocky and Pelican Islands: this is all traditional country. The Ningbing country is close to lots of important reserves and conservation areas. My family members are the custodians for that country – we speak for it and look after it for other Miriuwung and Gajerrong people.
7. I can speak for that country because of my connections through my family. My Grandmother (Narjang) is from that country and was a fully Miriuwung person.
8. I have also gone out into the exploration licence area to spend time on the land and to visit all the important sites. I know the best places for hunting and fishing and have fond memories of my time with my family on that country. I hope to keep visiting that country with my children so that they know all the stories about that area, the Dreamtime, the good hunting and fishing spots and how to use the country to live: to get big mob of bush tucker, to get killers, to light fires, to use trees and shrubs and bushes for food and medicine.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
9. The exploration licence falls on important community country. This country has always been used by the Miriuwung Gajerrong people for their general community life, for socialising, for ceremonies, for law and culture and for hunting and for fishing.
10. The area has also been important in recent times for reasons connected to the Carlton Hill cattle station. I was born on that station: that is where I got my name. I remember spending time in the exploration area when I was a small boy; going walkabout with my family, learning how to use the country for everyday life; working out how to hunt the animals for food and to go fishing; learning how to use the bush for medicine and tools. Later, as I got older, I was employed by the station as a stockman, mustering cattle. I used to live in the blackfella camps in the exploration area. They worked us hard in them days. I mustered cattle from one end of the Kimberley to the other, including in the exploration licence area. There are no towns in that area: we used to set up camp at Point Springs at Attack Bore and at Brolga Springs. We called the exploration areas yurra yurra. I am still in contact with the current station owners. They sometimes give me killers for ceremonies and times when the local mob practise their law and culture.
11. My family and I still like to go out to that country to hunt and fish and to re-connect with that country. I try and teach the young ones about the land, our connection to our country and what we must do to ensure that people are kept safe on the land – that we respect the country and the country will look after us.
12. Gardia cannot understand our connection to land: we are the custodians of that country and have been looking after it and protecting it for centuries.
13. The springs and creeks in the exploration area are good for fishing. My family the other stockmen and I used to travel to the springs and waterholes to swim and get water for drinking and cooking.
14. The exploration licence area also leads into limestone (Mijing) country. This country is sacred and should not be disturbed. As Mijing is my country, I have named my fencing company after this limestone area. I have been involved in fencing projects all around that country; protecting the land from stray cattle and, recently, from invasion by the cane toads.
15. There are a number of significant and sacred areas that are known to me from visiting. These are culturally sensitive areas and I cannot say more.
16. There is good hunting and fishing all over that country where the exploration licence area is. When I was younger I would hunt for kangaroo, turkeys (djoomoot) and goanna. I would also catch geese (moonamang) and ducks for cooking. We also caught blue tongue lizard (lumooggoong). I started with a spear but in the end we used a rifle from the station. The ladies I was with would go to the water on the coast and catch turtle (garmerang): we boil these in their shell over the fire. The ladies would also find turtle eggs – they are delicious. I would fish for big bream, barramundi and silver cobbler (catfish). Sometimes we would use mosquito nets and drag them along the river. You can fish in all those creeks and waterholes in the exploration area. The springs go all the way to Cape Dommett on one side and to Legune Station on the other. There is a big mob of fishing spots all the time.
17. There is the biggest mob of bush tucker and bush medicines round that country, including in the exploration licence area. I remember gathering black plums, a green plum known as dalung and a fruit known as miggerron. You could also collect Boab nuts to eat: we call them goodlawang. If they are green, you put the nut straight into the fire. If they are ripe and brown, you can pick off the shell, then take the soft white insides of the nut out – then you put it in a billy can with some water and some sugar. This makes a delicious sweet dessert a bit like custard. You can get a whole mob of bush tucker from the exploration area: barrding; djillliboong; what we call sugar bags; food from other trees and bushes I do not know the names of; and garrjang (white lily).
18. There are also medicines in the exploration licence area for sores, skin problems and flu. I do not know the names of the trees and bushes we would use but I know what they look like. My mum would get ngulang and use if like Vicks for colds and headaches.
19. In the exploration area, there is also a lot of what I call maggarra: this is good red ochre and white ochre for ceremonies.
20. We also use the trees in the exploration licence area to make tools and equipment; boomerangs; spears; things to carry babies; paper bark for humpies.
21. You can use everything in the bush for something! My people have been working out all these things for centuries.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
22. I know the exploration licence area very well. There are hundreds of places in my country, including in the exploration licence area, which are important and have great significance for my community.
23. There are several ceremony grounds through the exploration licence area. These are very important places to the Miriuwung and Gajerrong people.
24. There are old people buried throughout the exploration licence area. I do not know where the people are buried. The station owners did not care where they buried out people. If someone died, they were buried the same day without any ceremony. Aboriginal people were given a shovel and told to dig a hole for the person. We have lots of stories of our country men digging holes like that. Lots of our ancestors were buried in that way in the station days. There are definitely people buried in the Ningbing station area. My people had to move from the Ningbing station when it was closed. It closed because of the bombing of Wyndham in the second World War. Before I was born, my mob all moved to Carlton Hill station instead.
25. You will find that there are all kinds of artefact scatters that our old people left around on that country: old bones from food; old tools; old stones that we used to sharpen spears and make tools.
26. Law ceremonies are carried out all over that country, including the exploration licence area. I do not know what the women do in the area but the men have ceremonies in the area all year round.
27. The exploration licence area is in important Dreamtime country with lots of different stories. I cannot tell you any more. The stories are attached to the land and can only be told to special people at special places and special times. The stories are precious to us and can only be told if earned: by going onto country; learning the laws of our country men; and spending time with our elders.
28. The Miriuwung Gajerrong people are looking after all the important places in our country. We are passing on these stories to our young people. I am telling these stories to my children and grand-children so that they know their country and look after it.
29. The exploration licence area is also very important to the broader community. This is the area where the German gardia was shot down during the second World War. Blackfellas saved that gardia. His old plane is still in the Kununurra Museum.
MAJOR DISTURBANCE TO LAND OR WATER
30. I am aware of the activities which the Grantee Party could do on the exploration licence area under the Mining Act 1978 (WA) if they are granted the exploration licence.
31. White people and strangers must ask for permission before coming onto my country because we have lots of special places there, from our old-time people and from the early days. We know that strangers do not follow our law.
32. If strangers damage sites, artefacts or other important place or thing we feel very upset. They destroy our country.
33. Strangers cannot help themselves to our country. They have to ask us first. If they make money out of my country, they can maybe give my community a little but because they are taking something from our country.
The affidavit of Button Jones is made in the following terms:
I, Button Jones, of Mirima Community in Kununurra in the State of Western Australia, affirm:
1. My name is Button Jones. My Aboriginal name is Yalghbirr. It is the name of a part of the country.
2. I am a proud Miriuwung man and am a very senior person within the community: we are known as Garralyel. This means that I can represent the Miriuwung and Gajerrong mob in lots of different ways: I can speak for different parts of the country – not just my own dawang group; I can teach Dreamtime stories; I know about the history of the land; I can take part in law and culture ceremonies; lots of important things. I am well known in the community for being a singer when the Mirima dancers are performing corroborree or taking part in ceremonies. I used to be a good dancer too but now I am too old to dance. There are lots of local songs to sing which have meanings to my people. The songs teach the young ones about the country and about the Dreamtime stories.
3. To explain to people what it means to be Garralyel, you could say that it is like being a lawyer. You have to go to school and to university and have good experience to be a lawyer. For Garralyer it is the same: I had to study and understand the land; listed to my elders; go through law.
4. I am a member of both the Miriuwung and Gajerrong #1 and the Miriuwung and Gajerrong #4 Native Title Determiantions. I fought hard with other Miriuwung and Gajerrong people to have our native title rights over our country recognised.
5. Because of my knowledge of the country, I am a director of both Miriuwung and Gajerrong Prescribed Bodies Corporate. I am well known and respected in the community. Other Miriuwung and Gajerrong people look to me for information about our country and our culture.
6. I know the area where the Grantee Party has applied for Exploration Licence Number E80/4601 (the exploration licence area), very well because I have lived, travelled and worked all over the country in the Miriuwung and Gajerrong claim area and have been shown maps of the application area. The maps I was shown are attached to this affidavit and marked “A”, “B” and “C”.
7. I was born and raised at Newry Station where I was a ringer, mustering cattle. I travelled all over the Kimberley on my horse. In the 1960s I worked on Carlton Hill station, where the exploration licence area is. I mustered cattle all over that country.
8. I know that land: I used to go travelling along all those springs, including Brolga Spring and King Gordon Springs, Bamboo Springs and Attack Spring. This is all Miriuwung and Gajerrong country that I can speak for.
9. I can speak for that country because of my connections through my family. My Grandmother’s sister (garrgai) is from that country and was a fully Miriuwung person.
10. I can also speak for that country because I am Garralyel and have been taught everything about that country. I know that the right Dawang group to speak for that country is the Doolboong and Waidenbeng mob but they don’t know the country as well as I do because they were separated from their people and didn’t have opportunities to learn proper blackfella way. They were removed by the station owners.
11. I have spent a big mob of time on the exploration licence area. It is a good area for hunting and fishing.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
12. The exploration licence falls on important community country. This country has always been used by the Miriuwung and Gajerrong people for their general community life, for socialising, for ceremonies, for law and culture and for hunting and for fishing.
13. I was employed at Carlton Hill station for a few years when I wasn’t at Newry Station. We all used to live in the blackfella camps in the exploration area and be given flour, tea and sugar. I mustered cattle from one end of the Kimberly to the other, including in the exploration licence area. I have camped around all that country: Point and Brolga Springs are good spots and I remember stopping lots of times at Attack Bore. We call the exploration licence area yurra yurra.
14. The springs and creeks in the exploration area are good for fishing. My family, the other stockmen and I used to travel to the springs and waterholes to swim and get water for drinking and cooking.
15. There is good hunting and fishing all over that country where the exploration licence area is. You can hunt for kangaroo, turkeys (djoomoot), goanna, geese (moonmang), ducks, blue tongue lizard (lumooggoong), turtle (garmerang) and turtle eggs. You can fish for big bream (boorring), barramundi (jaliwung) and silver cobbler or catfish (garrawarring).
16. We have important Barramundi Dreaming which involves malawon – a type of black rock you find in my country. You can use malawon to make a fishing trap to catch barramundi.
17. There is the biggest mob of bush tucker round that country, including in the exploration licence area. I like to eat dalung, miggerron, goodlawanf, barrding; djillliboong and garrjang.
18. There is also lots of bush medicines in the exploration licence area for sores, skin problems and flue.
19. In the exploration area, there is also lots of good paints for ceremonies – white ochre – this is called maggarra. You can also use the white gum tree to make ashes – these ashes can be used for big mob of things. I don’t like it but lots of women add the ashes to tobacco so they can chew it without the bitter taste. When they have finished chewing, they sometimes put the chewed tobacco and ash behind their ears and save it for later. The Miriuwung and Gajerrong people know that the ashes help stop cancer. People who chew the ash do not get sick. Out old Garralyel ladies have been chewing the ash for many years!
20. We also use the trees in the exploration area to make humpies, boomerangs, spears, things to fish with, things to carry babies and lots of other things. You can use the pandanus treat to make baskets. Of course you can use everything in the country!! How else would we be able to live there! Miriuwung and Gajerrong people know what to do to survive on our land.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
21. I know the exploration licence area very well. There are hundreds of places in my country, including in the exploration licence area, which are very important and have great significance for my community.
22. There are several ceremony grounds through the exploration licence area. These are very important places for Miriuwung and Gajerrong people.
23. There are old people buried throughout the exploration licence area. I do not know where the people are buried.
24. You will find that there are all kinds of artefact scatters that our old people left around on that country: old bones from food; old tools; old stones that we used to sharpen spears and make tools.
25. There are a number of sacred sites in the exploration area that are known to me from visiting. These are precious areas. There is no more to be said about that.
26. The Miriuwung and Gajerrong people are looking after all the important places in our country. We are passing on these stories to our young people. I am telling these stories to my children and my grand-children so that they know their country and look after it.
MAJOR DISTURBANCE TO LAND OR WWATER
27. I am aware of activities the Grantee Party could do on the exploration licence area under the Mining Act 1978 (WA) if they are granted the exploration licence.
28. Gardia do not understand that our country is part of our culture and that we respect it and, in return, it looks after us. White people and strangers must ask for permission before coming onto my country because we have lots of special places there, from our old-time people and from the early days. This is not just to show us respect – this is to stop bad things happening to those people. Gardia do not understand that the land is very important to everyone and that, if you do not respect it, it will not look after you. Bad things can happen.
29. If our land is destroyed, we feel no good binji – this is a feeling is our bellies. We feel bad because our land has been damaged but also because we are responsible for the people on it – something bad could happen to someone who does not respect the country. This is our fault and we feel sad if bad things happen.
30. If people want to use our land they must talk to us first. We can work together to sort something out. If the gardia mob look after the environment, the bush tucker and medicines, and the animals and the water – we can help them. They must respect the land first though.
Mr Carlton and Mr Jones both state they are very senior members of the native title party and I accept they both have authority to give evidence on behalf of the native title party. The evidence is uncontested and I accept its truth.
Grantee party contentions and evidence
The grantee party’s submissions in this matter state that an agreement (a copy of which is attached to the submissions) was previously negotiated and entered into by the native title party and the grantee party, and requests that the same agreement is adopted in this matter. The grantee party also provided an email dated 13 February 2009 in relation to a mediation matter involving the grantee party and the Kimberly Land Council in which community benefits are discussed.
Community or social activities – s 237(a)
The Tribunal is required to make a predictive assessment as to whether the grant of the proposed licences and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference): see Smith v Western Australia (2001) 108 FCR 442 at [23] (‘Smith’). The notion of direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities: Smith at [26]. The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity): Smith at [27].
The evidence of both Mr Jones and Mr Carlton attests to ‘good hunting and fishing’ within the area of the proposed tenement. In that area the deponents attest to hunting Kangaroo, turkey (djoomoot), goanna, geese (moonamang), turtle (garmerang) and turtle eggs, bream (boorring), barramundi (jaliwung), silver cobbler or catfish (garrawarring), ducks and blue tongue lizard (lumooggoong). Further, they attest that there are plenty of native plants used for bush tucker, including black plums, green plums (dalung), boab nuts (goodlawang) and white lily (garrjang). Mr Jones states that within the proposed tenement there is ‘lots of good paint for ceremonies’ (at 19) and that ‘we also use the trees in the exploration area to make humpies, boomerangs, spears, things to fish with, things to carry babies and lots of other things’ (at 20). Mr Carlton in his affidavit also refers the presence of red and white ochre in the proposed tenement which is used for ceremonies, and that there are medicines in that area ‘for sores, skin problems and flu’ (at 18). Mr Jones states ‘my family and I still like to go out to that country to hunt and fish and to re-connect with that country. I try to teach the young ones about the land, our connection to our country and what we must do to ensure that people are kept safe on the land’ (at 11).
The evidence of Mr Carlton and Mr Jones present some difficulties in its interpretation. It is not entirely clear to me whether they are speaking of contemporary activities and events or are recalling historical activities in the area. They use different tenses in different paragraphs. For instance, Mr Carlton refers to his ‘fond memories of my time with my family on that country (at para 8)’ he says ‘I remember spending time in the exploration area when I was a small boy (at para 10), at paragraph 16 and 17, he recalls when he was younger he hunted and fished across the exploration area, yet at paragraph 11 he says ‘my family and I still go out to that country to hunt and fish and to re-connect with the country’ etc. Mr Jones in his affidavit also refers to time in the area working on Carlton Hill Station in the 1960’s (at para 7). He describes in his affidavit at paragraph 14-20 the bountiful nature of the country for the purposes of hunting and fishing, gathering of bush tucker and ochre for ceremony as well as other resources from the trees to make implements and weapons. Those paragraphs are expressed in the present tense but in the context of what he has said earlier it is unclear whether he is describing what his family did when he lived on Carlton Hill or what they do now. There is no specific reference to the activities being conducted in recent times.
I contrast the evidence provided in this matter with that provided in earlier matters relating to s 237(a) including Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, [2004] NNTTA 31 (7 May 2004) at [16]-[18] and [25]-[31] and Bardi and Jawi Niimidiman Aboriginal Corporation on behalf of its members/Western Australia/Kimberley Quarry Pty Ltd, [2009] NNTTA 153 (20 November 2009) (‘Kimberly Quarry’) at [20] and [25]-[34]. In any event the evidence makes no specific reference to particular area within the area of land immediately adjacent to the Carlton Hill Pastoral Lease which is above the high water mark, which is the area of relevance before the Tribunal in this matter. I note also that both Mr Jones and Mr Carlton live in or near Kununarra, which is a considerable distance from the site of the proposed tenement area.
Further, I accept, as outlined by the Government party (at paragraph 51), that the proposed tenement area is partly overlapped by a pastoral lease. If this point is taken into account within the context of the tenure outlined at [14] above, being that this determination relates only to those areas landward of the mean high water mark and not the subject of prior extinguishment, then the area in question is likely to be entirely overlapped by a pastoral lease. The carrying on of the community or social activities of the native title party has been subject to, or co-existent with, this activity for a significant period of time. Further, as outlined by the Government party (at paragraph 51(d)), there are no Aboriginal communities within the area of the proposed tenement, and hunting and mineral exploration activity are, by their nature, inherently capable of coexistence, and to the extent that the activities conducted by the native title party consist of law ceremonies, the activity of exploration and ceremony will only potentially intersect in the limited period during which law business is held.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 2008, that the very thought of intensive exploration activities could interfere with ‘community life’ (NTP contentions paragraph 14), as I and other members of the Tribunal have said repeatedly in the past, (Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, [2007] NNTTA 11 (31 January 2007), at [22]), since the 1998 amendments to the Act, the expedited procedure is only not attracted if there is direct interference with the carrying on of community and social activities of the native title holders which must involve a physical component. The Carr J statement based on the previous wording ‘community life’ in s 237(a) is no longer applicable. See also Banjo Wurrunmurra & Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Ling, Kevin Peter Sibraa, [2007] NNTTA 21 (16 March 2007) at [23] and Kimberly Quarry at [34].
In the circumstances, I am unable to conclude the grant of the proposed licences will interfere with social and community activities of the native title party on the proposed licence of the kind contemplated by s 237(a) of the Act in this matter.
Sites or areas of particular significance – s 237(b)
The issue the Tribunal is required to determine in relation to s 237(b) is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [13], the Aboriginal Heritage Database shows that there are nine sites registered and two ‘other heritage places’ under the AHA within the proposed licence. The AHA protects all Aboriginal sites, whether registered or not. By the same measure, the Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. Finally, registration of a site under the AHA is not determinative of whether it is a site of particular significance, and that too must be a decision made on the particular evidence of the matter.
The affidavit evidence of Mr Jones and Mr Carlton consists of general statements that the proposed tenement area contains ceremony grounds, burial sites, artefact scatters and sacred sites. Mr Carlton states that the ‘exploration licence area is in important Dreamtime country with lots of different stories’ (at 27). Mr Carlton states that there are ‘old people buried throughout the exploration licence area. I do not know where the people are buried...There are definitely people buried in the Ningbing station area’ (at 24). Mr Jones states that ‘there are a number of sacred sites in the exploration area that are known to me from visiting. These are precious areas. There is no more to be said about that’ (at 25).
The evidence provided by the native title party in relation to sites of particular significance does not elaborate on the location of the sites, other than to say they are within the proposed licence area, nor the grounds upon which they assert that the sites are of particular significance. The Tribunal has repeatedly found that in order to satisfy the requirements of s 237(b) of the NTA in relation to the question of whether sites of particular significance exist in the area, the onus is on the native title party to produce some concrete evidence relating to the particular site, its location and the grounds for its particular significance (see WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 at [45]). In these circumstances I am not able to conclude that there are any sites of particular significance within the area of the proposed licence.
Major disturbance to land or waters – s 237(c)
The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 at [41]-[57]).
The native title party state that the grant of the proposed tenement is likely to involve major disturbance to the land, or create rights whose exercise is likely to involve major disturbance to the land because ‘there are within the tenement area sites which are so significant to the local Aboriginal community that...unauthorized persons may not be present at them’, therefore ‘the grant of the tenement in these circumstances will cause a major disturbance’ (at paragraph 36).
In my view the native title party has not provided any evidence relevant to the considerations for s 237(c), and consequently I am unable to find that the proposed licence will result in a major disturbance to land or create rights which will do so.
Determination
The determination of the Tribunal is that the grant of prospecting licence E80/4601 to Stansmore Resources Pty Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
21 June 2013
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