Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd
[2007] NNTTA 82
•17 September 2007
NATIONAL NATIVE TITLE TRIBUNAL
Victor Barunga and Others on behalf of the Dambimangari People/Western Australia/FMG Resources Pty Ltd, [2007] NNTTA 82 (17 September 2007)
Application Nos: WO06/503, WO06/504, WO06/505, WO06/506 and WO06/507
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Victor Barunga and Others on behalf of the Dambimangari People (WC99/7) (native title party)
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The State of Western Australia (Government party)
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FMG Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE (WO06/503 – E04/1534; WO06/504 – E04/1535)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE (WO06/505 – E04/1536; WO06/506 – E04/1537; WO06/507 – E04/1538)
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 17 September 2007
Catchwords: Native title – future act – proposed grant of five exploration licences – expedited procedure objection applications – 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 – whether act likely to cause major disturbance to land or waters – two exploration licences over Aboriginal Reserve land – access agreement required with native title party – s 237 interference or disturbance to land unlikely and expedited procedure attracted for two exploration licences – expedited procedure not attracted for three exploration licences not over Aboriginal Reserve land
Legislation: Native Title Act 1993 (Cth), ss 26(2), 29, 151(2), 237
Mining Act 1978 (WA), ss 20(5), 63
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Representatives of the Mr Robert Powrie, Solicitor, Kimberley Land Council
native title party: Ms Ania Maszkowski, Kimberley Land Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Jan Mason, Department of Industry and Resources
Representative of the
grantee party: Mr Ken Green, Solicitor, Green Legal Pty Ltd
REASONS FOR DETERMINATION
On the 21 June 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant the following exploration licences (‘the proposed licences’) to FMG Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act):
E04/1534, comprising an area of 184.4 square kilometres located 190 kilometres northeasterly of Derby in the Shire of Wyndham & East Kimberley;
E04/1535, comprising an area of 75.66 square kilometres located 163 kilometres northerly of Derby in the Shire of Wyndham & East Kimberley;
E04/1536, comprising an area of 190.75 square kilometres located 166 kilometres northeasterly of Derby in the Shire of Derby-West Kimberley and Wyndham & East Kimberley;
E04/1537, comprising an area of 196.95 square kilometres located 107 kilometres northerly of Derby in the Shire of Derby-West Kimberley; and
E04/1538, comprising an area of 193.59 square kilometres located 99 kilometres northerly of Derby in the Shire of Derby-West Kimberley
The proposed licences E04/1534, E04/1535 and E04/1536 are 100 per cent overlapped by the Dambimangari registered claim (WC99/7, registered from 31 May 1999). E04/1537 and E04/1538 are overlapped by the Dambimangari registered claim at 80.35 per cent and 89.49 per cent respectively. The remainder of E04/1537 and E04/1538 are overlapped by the abutting registered claim of the Mayala People (WC98/39, registered from 1 July 1998).
On 6 October 2006 objections to the expedited procedure statement were lodged with the Tribunal by Victor Barunga and Others on behalf of the Dambimangari People WC99/7 (‘the native title party’) in respect of all the proposed licences (designated WO06/503 for E04/1534, WO06/504 for E04/1535, WO06/505 for E04/1536, WO06/506 for E04/1537 and WO06/507 for E04/1538).
On 19 October 2006 objections were lodged with the Tribunal by Aubrey Tigan and others on behalf of the Mayala People WC98/39 in resepct of E04/1537 and E04/1538 (designated WO06/518 and WO06/519 respectively) which were subsequently withdrawn on 17 July 2007 with no agreement reached between the parties.
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections (i.e. after 21 October 2006), for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
A status conference was held by the Tribunal on 17 January 2007 at which the grantee party advised it preferred to negotiate a comprehensive regional agreement over a proposed project area within the Kimberley Land Council native title representative body region that would include all current and future tenement applications within that area and would ensure no future objection applications would be lodged by the native title party (or any other native title party in that area) in relation to any of the grantee party’s future tenement applications. With agreement from the native title party, it requested the Government party consent to a determination that the expedited procedure did not apply in order to allow time to negotiate such an agreement within the right to negotiate process contemplated under s 31 of the Act. The Government party sought time to consider the request and on 23 February 2007 advised that it would not consent to such a determination. Given the Tribunal’s preference for objections to be disposed of by agreement, I vacated directions and adjourned the matters to 16 March 2007 to allow time for the grantee party and native title party to attempt to negotiate their comprehensive regional agreement, albeit within the limited time available in the expedited procedure objection process. At the adjourned status conference on 16 March 2007 the parties advised that a comprehensive agreement could not be negotiated within the limited timeframe and accordingly I reinstated directions and set a listing hearing for 18 May 2007.
The Government party lodged its contentions and evidence by 5 April 2007, and those of the native title party were lodged on 13 July 2007 after three requests for an extension (each agreed to by the grantee and Government parties). No submissions were received by the grantee party who maintained that whether or not the expedited procedure is properly attracted is a matter between the native title parties and the Government party.
On 27 July 2007, I convened a Listing Hearing at which parties reported that all contentions and evidence had been lodged and agreed that the matters be heard ‘on the papers’ that is, without holding a further hearing. I am satisfied that the objections can be adequately determined on the papers (s 151(2) NTA).
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] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), the Tribunal 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 Standard Condition (2) to be imposed on the exploration licence (Walley at [34]) now contains an additional requirement that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental officer, Department of Industry and Resources. Further, s 63 of the Mining Act (s 63(aa)) has been amended to require the approval of a program of work by the Environmental Officer of the Department of Industry and Resources for the use of ground disturbing equipment. 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, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[41] which are relevant to the present matter.
Evidence in relation to the proposed act
Government party documentation establishes the following notable underlying land tenure on the proposed licences:
E04/1534 (WO06/503)
Crown Reserve 23079 – Use and benefit of Aborigines vested in the Aboriginal Affairs Planning Authority (43.2 per cent overlap)
Crown Reserve 21970 – Use and benefit of Aborigines vested in the Aboriginal Lands Trust (0.2 per cent overlap)
Aquaculture licence 371 - Djaraworrada Aboriginal Corporation (1.7 percent overlap)
Vacant crown land (0.2 per cent overlap)
Hall Point townsite boundary (0.2 per cent overlap)
Rain forest areas (less than 0.1 per cent overlap each)
E04/1535 (WO06/504)
Crown Reserve 23079 – Use and benefit of Aborigines vested in the Aboriginal Affairs Planning Authority (25.2 per cent overlap)
Department of Environment and Conservation proposed marine park 5 (97.5 per cent overlap)
E04/1536 (WO06/505)
Crown Reserve 23079 – Use and benefit of Aborigines vested in the Aboriginal Affairs Planning Authority (8.8 per cent overlap)
Vacant crown land parcels (totalling approximately 19.7 per cent overlap)
Department of Environment and Conservation proposed conservation park 150 (19.4 per cent overlap)
Rain forest areas (less than 0.1 per cent overlap each)
E04/1537 (WO06/506)
Crown Reserve 30674 – Use and benefit of Aborigines vested in the Aboriginal Affairs Planning Authority (57.7 per cent overlap)
Aquaculture licence 66 – Clipper Holdings Pty Ltd (100 per cent overlap)
Vacant crown land parcels (totalling approximately 9.4 per cent overlap)
Department of Environment and Conservation proposed marine park 2 (32.9 per cent overlap)
Department of Environment and Conservation proposed nature reserve 230 (5.7 per cent overlap)
Rain forest areas (less than 0.1 per cent overlap each)
E04/1538 (WO06/507)
Crown Reserve 30674 – Use and benefit of Aborigines vested in the Aboriginal Affairs Planning Authority (51.5 per cent overlap)
Private Land CG 15 (16.4 per cent overlap)
National Estate Registered Site 102542 (15.1 per cent overlap)
Department of Administrative Services File Notation Area 1555 (15.4 per cent overlap)
Vacant crown land parcels (totalling approximately 10.3 per cent overlap)
Aquaculture licence 114 – Br Lm Brown (1.9 per cent overlap)
Department of Environment and Conservation proposed marine park 2 (21.7 per cent overlap)
Department of Environment and Conservation proposed nature reserve 230 (2.2 per cent overlap)
The documentation notes that Djarworrada Aboriginal Community is situated in the area of E04/1534 and Cone Bay Aboriginal Community is situated within 500 metres of E08/1538 and that there are no Aboriginal communities within or adjacent to E04/1535, E04/1536 and E04/1537, although mapping shows that E04/1537 abuts E08/1538 to the north.
Searches of the Department of Indigenous Affairs (‘DIA’) Register of Aboriginal Heritage Sites under the Aboriginal Heritage Act 1972 (WA) provided by the Government party reveal 5 open access sites and 15 closed access sites within E04/1534, 1 closed access site within E04/1535, 3 open access sites within E04/1536, 5 open access sites within E04/1537 and 2 open access sites within E04/1538 as follows (there are no gender restrictions in relation to any of the sites):
E04/1534 (WO06/503)
Site 12196 - Langawarru (mythological, open access)
Site 12197 - Langgi (mythological, skeletal material/burial, painting, artefacts/scatter, camp, closed access)
Site 12198 - Kariadang, Freshwater Cove (mythological, painting, artefacts/scatter, closed access)
Site 13037 - Widgingarri Shelter 1 (man-made structure, painting, camp, rockshelter, closed access)
Site 15368 - Widgingarri Shelter 2 (painting, archaeological deposit, camp, rockshelter, open access)
Site 13038 - Widgingarri Shelter 3 (painting, camp, closed access)
Site 13039 - Widgingarri Shelter 4 (painting, camp, closed access)
Site 13040 - Widgingarri Shelter 5 (man-made structure, painting, camp, closed access)
Site 13041 - Widgingarri Shelter 6 (painting, closed access)
Site 13042 - Widgingarri Shelter 7 (painting, camp, closed access)
Site 13043 - Widgingarri Shelter 8 (skeletal material/burial, rockshelter, closed access)
Site 13044 - Widgingarri Shelter 9 (mythological, painting, camp, open access)
Site 13045 - Widgingarri Shelter 10 (mythological, painting, artefacts/scatter, archaeological deposit, camp, closed access)
Site 13046 - Widgingarri Shelter 11 (mythological, painting, camp, closed access)
Site 13047 - Widgingarri Shelter 12 (mythological, painting, archaeological deposit, camp, closed access)
Site 13048 - Widgingarri Shelter 13 (camp, rockshelter, open access)
Site 13049 - Widgingarri Shelter 14 (painting, camp, closed access)
Site 13050 - Widgingarri Shelter 15 (camp, rockshelter, closed access)
Site 13051 - Widgingarri Shelter 16 (skeletal material/burial, painting, camp, closed access)
Site 14980 - Deception Bay (painting, open access)
E04/1535 (WO06/504)
Site 14976 - Montgomery Islands (mythological, skeletal material/burial, man-made structure, painting, artefacts/scatter, closed access)
E04/1536 (WO06/505)
Site 12200 - Ngumburi, Doubtful Bay (mythological, painting, artefacts/scatter, open access)
Site 12201 - Steep Island, Foam Passage (mythological, open access)
Site 12202 - Raft Point, Foam Passage (man-made structure, artefacts/scatter, camp, open access)
E04/1537 (WO06/506)
Site 12136 - The Graveyard 1 (camp, open access)
Site 14870 - The Graveyard 2 (camp, open access)
Site 14871 - Arveling Island (camp, open access)
Site 14872 - The Graveyard 3 (artefacts/scatter, midden/scatter, camp, open access)
Site 14873 - The Graveyard 4 (quarry, artefacts/scatter, camp, open access)
E04/1538 (WO06/507)
Site 14874 - The Graveyard 5 (camp, open access)
Site 14880 – Euorapa, Strickland Bay (camp, open access)
The documentation also notes there has been no past exploration activity over E04/1534, E04/1535 or E04/1536. One ‘pending’ exploration licence overlaps E04/1536 at 5.4 per cent. Some past exploration has occurred over E04/1537 and E04/1538: Four ‘dead’ exploration licences surrendered in 2000 overlap E04/1537 at 61.3, 1.5, 27.3 and 0.1 per cent, and three ‘dead’ exploration licences surrendered in 2000 overlap E04/1538 at 8, 20.2 and 4.7 per cent.
The grant of E04/1534, E04/1536, E04/1537 and E04/1538 will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). Additional conditions are:
Where the proposed licence overlaps any Use and Benefit of Aborigines Reserves, Hall Point Townsite, Foreshore, Seabed and Navigable Waters, the prior written consent of the Minister responsible for the Mining Act 1978 WA must be obtained before commencing mining.
Where the proposed licence overlaps proposed nature reserve 230 or proposed conservation park 150 additional Department of Industry and Resources restrictions and requirements are imposed for these areas being; the washing down of vehicles and equipment entering the licence area; preparing detailed programme of each phase of proposed exploration for approval prior to any activity being undertaken; access to, from and movement of vehicles within the area being restricted to ground or seasonal conditions and routes approved under the program or otherwise agreed by the Department; and inspection prior to cessation of exploration activity.
The grant of E04/1535 will be subject to the following condition only:
The prior written consent of the Minister responsible for the Mining Act 1978 WA being obtained before commencing mining on Use and Benefit of Aborigines Reserve 23079, the Foreshore, Seabed and Navigable Waters.
The Government party confirmed via email dated 23 August 2007 that Reserve 23079 comprises the total land area of E04/1535.
In relation to Aboriginal Reserve land, the Government party contends:
‘Reserves for the Use and Benefit of Aborigines
(b)… Part III of the Aboriginal Affairs Planning Authority Act 1972 applies. Section 24(7) of the Mining Act provides that mining (which term includes exploration) on Aboriginal reserve land needs the written consent of the Minister for State Development, who must consult with and obtain a recommendation from the Minister for Indigenous Affairs, before giving any such consent;
(c)Aboriginal reserve land is subject to the Aboriginal Affairs Planning Authority Act, which prevents the grantee party from gaining access to the land without authorisation from the Minister for Indigenous Affairs: section 31 of the Aboriginal Affairs Planning Authority Act, and regulation 8 of the Aboriginal Affairs Planning Authority Act Regulations;
(d)in practice the Minister for Indigenous Affairs requires that the grantee party negotiate an agreement with the relevant Aboriginal community in respect of access to the land for exploration activities;
(e)the agreement referred to in (d) forms the basis for the formulation of the conditions to be attached to the authorisation of the Minister for Indigenous Affairs, to the grantee party, for access to the land for exploration activities;
(f)in practice, the authorisation of the Minister for Indigenous Affairs includes conditions relating to the protection of, and prevention of interference with, the community life of the relevant Aboriginal community;
(g)in practice, the grant of a tenement of the type proposed may involve the imposition of conditions, which are directed to the protection of any Aboriginal community on the land;’
Mapping provided by the Tribunal’s geospatial unit indicates that the proposed licences comprise areas of both land and sea. The right to negotiate provisions of the Act only apply to the extent that the future acts relate 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 licences which are to the seaward side of the mean high water mark. However, evidence relating to what community or social activities occur or what sites or areas of particular significance exist 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. From the perspective of assessing the evidence presented drawing a hard and fast line along the high water mark and ignoring evidence of community or social activities or special areas or sites on the seaward side would create an artificial situation. The facts when considered in their overall context may mean that evidence relating to areas which cover both the landward and seaward side of the mean high water mark and which adjoin or are related to each other are relevant to determining the s 237 issues on the landward side.
The portions of E04/1534 and E04/1535 which are landward of the mean high water mark are completely overlapped by Aboriginal Reserve land with the minor exception that some 0.5% of E04/1534 is overlapped by vacant crown land, Hall Point townsite boundary and rainforest areas. Previous Tribunal findings have been that the regulatory regime applicable to Aboriginal Reserve land (described above in para [17]) is such that an exploration licence is unlikely to cause the interference or disturbance referred to in s 237 of the Act (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 and cases cited therein at [21]). Access to the Reserve area by a grantee is only approved by the Minister for State Development once the Minister for Indigenous Affairs is satisfied that a satisfactory agreement has been entered into between the grantee party and relevant Aboriginal community. Where the relevant Aboriginal community is a native title party which has objected to the expedited procedure it can safely be assumed that access is not likely to be granted for exploration unless the matters in s 237 are dealt with to the objector’s satisfaction. The evidence of Mr Donny Woolagoodja establishes that the relevant Aboriginal community and the native title party are one and the same. The likelihood of s 237 interference and disturbance occurring is remote in these circumstances and the expedited procedure is therefore attracted in relation to E04/1534 and E04/1535.
Those portions of E04/1536, E04/1537 and E04/1538 which are landward of the mean high water mark are overlapped by Aboriginal Reserve by approximately 31.4 per cent, 84.85 and 64.68 per cent respectively. As access to a portion of these proposed licence areas would be permitted on grant of the exploration licences without agreement of the native title party it is necessary to give consideration to whether the expedite procedure is or is not attracted in the normal way.
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
All Licences
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder and 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
E04/1534, E04/1536, E04/1537, E04/1538
The land the subject of this licence affects a Rainforest area, The Licensee is advised to contact the Department of Conservation and Land Management for detailed information on the management requirements for rainforest areas and rainforest monitoring site or sites present within the tenement area.
E04/1534, E04/1535, E04/1536, E04/1538
The licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 WA under section 111 is authorised to explore for iron.
The native title party’s contentions include the affidavit of Donny Woolagoodja dated 5 July 2007 made in the following terms:
‘1.My name is Donny Woolagoodja. I come from saltwater country. My father found me in the ocean near an island. This is my dreaming place, it is an important place. I was a whirlpool when my father found me.
2. My bush name is Yornadan and people call me Yorna for short. That is the place where they found me, Yornadan.
3.My country is the saltwater country and the mainland and we claimed it with all the other Worrorra people in the Dambimangari claim.
4.My mother and my father were Worrorra and so were my grandparents. They were all born in their country and lived in their country. They, and other old people, taught me how to live in my country and how to look after the country. Our country includes the saltwater country and the mainland side. I have two countries, Top and Bottom Worrorra.
5.My traditional country is in the Dambimangari claim area. I am one of the named applicants in this claim with some of the other old people for Dambimangari saltwater country.
6.I know the country where FMG Resources Pty Ltd want to look around. They have a lot of ground that they want to look around. They are inside my country.
7.Some of this licence is over Aboriginal Reserve land and some of it over islands. The government says that some of that country is ‘vacant crown land’ but it is still our country and it is not vacant to us. This country has meaning for Aboriginal people and we know that meaning, never mind that Anmarra (Europeans) think that it is empty. Our old people are still there, their spirits are there and the Wanjina, the Wungurr and all the Dreamings are there. You can see those images in the caves. They are the images from the Dreaming. These images remind us about our culture and our Law.
8.All the families for the Dambimangari country have to look after the country. The old people teach the young people and we all have to work together. Now that some of our old people have passed away I have to talk up for the Dambimangari mob. I have to make sure that Anmarra still listen to Aboriginal people and respect our Law and culture.
9. My father took me to my country on canoe and we travelled all round from Kunmunya to Freshwater Cove to Graveyard right around there. Later he took me again with his boat - the Windsong. He told me about how to look after my country, the places that we have to look after and how to look after them. I still look after my country, saltwater side and mainland side. I freshen the Wanjinas and paint their images to keep the country strong. I take young people with me so they can know what happens in the country and how to talk to the Wanjina; how to follow the Law and what to do when I pass away.
10.Strangers cannot come to this country by themselves. The traditional owners have to introduce them to the country and the Wanjinas and Wungurr who are the bosses for all our country. Our country is saltwater, islands and mainland. It is one place our country. Anmarra think that the salt water and the country sit by themselves. We know that country is one place, salt water and hard ground together.
11.There are lots of important places in our country and we have to look after these places in the proper way. We have to visit our places, we have to take people and introduce them, they cannot go themselves.
12.Old people used to walk through the bush to their country inland. We did that ourselves when I was small we went by canoe from Kunmunya and that canoe got wrecked and so we had to walk back to Kunmunya. There are places inland with Wanjina in the caves, we saw them then.
13.At Eagle Pt there are paintings of the Goanna. In the Dreamtime the tail disappeared. And then there is Franklin Island where there are places that have got stones from the old people where they were camping in a stone windbreak.
14.We have a community at Yaloon. Karitya call it Cone Bay. This is part of my country from my father. We have houses there and live there, young and old people together. Some of the families have to live in Derby with the young kids and some work at Koolan.
15.We have the kids here in holiday time and they learn about the country. They learn about the salt water and how to hunt and fish in the land and the water, the freshwater and the saltwater.
16.We use the boats at Yaloon to go to the islands and the reef for turtle and different kinds of fish.
17.We have to know the tides and the winds when we go out to sea with our boats. Our kids know the saltwater side, they learn from us and they can go out by themselves.
18.We hunt in the sea and on the land. We get kangaroo and goanna and barramundi from the mainland side and we get oysters at low tide along the shores. The women and kids dig for yams and all kinds of other bush tucker. There are different kinds of tucker in the wet season and the dry season. We know the bush and the sea and we live from our country when we are at Yaloon. We take bush food back to Derby for our families. We need bush tucker to keep us healthy.
19.We travel from Yaloon to other places in our country by boat. We go all round our country, saltwater and mainland. We go to Doubtful Bay, we call it Wuumburri. Raft Point is in this bay and that is a main Wanjina place. Secure Bay is for sugar bag dreaming. This is inside Larriniyi country. And there is Dugong bay where there are two men like a spirit in those hills - they are called Babanga and Wiyanga. These two men fought with my father’s father with a spear.
20.My niece has her place at Freshwater Cove. This is really called Widjingnarri Bart Bart and is the place of a story about the husband and the wife. This is a main story about marrying the right way. This story is for all the Wanjina mobs, all the three tribes have got this story. This is an important place for us all.
21.There are some Wanjinas outside the boundary that the miners want to look at but we are still worried about them. These Wanjina are looking after all the country.
22.Strickland Bay has a special place where they got trees for canoe and raft and there is a graveyard there where they were shot. Anmarra killed them. There are two Wungurr places there too. One has hot water and one has cold water. They are important places. They are very special places for us all.
23.Like the Horizontal Waterfall there is a scared place and when people go there they can get killed, or have an accident. That happens all the time because the country does not know them. One Anmarra woman got killed there just lately.
24.Raft Point - there is a painting there. This painting has the Wanjina and fishes and this is another important place.
25.Montgomery Island and Reef, is a big big place for all the Dambimangari mob. It is a camping place and there is a story for that country to. This is my father’s mother’s country. The story is about a woman who lost her son there and she poked the eye in the whirlpool and that is why there are whirlpool now. There is another island nearby there where all the sacred totems come from and it is a sacred place that cannot be damaged.
26.We go to visit our sacred sites and cave paintings in Oobagooma side too. There are lots of places there. There is a place there where men had their initiation ceremonies and no women can go there. There is a place for the women but that is in Doubtful Bay and men cannot go there. We know these places and worry for them.
27.Our old people lived in the mainland and the islands. We still camp in our country mainland side and saltwater side. Some of our old people are buried in their traditional country.
28.We have a big country. All of our families are worried about what might happen to our important places, our bush tucker and our homelands when miners come here to look around.
29.I travel around all my country, to all the islands right up past Kingfisher Is, Walcott Inlet, Munja, Sale River to Prince Regent. This is all in our country. From Yaloon we look after all the coast side, the islands and the reef. From Yaloon we also look after the mainland side too, we take our motor cars and look around the country and go hunting.
30.There are lots of places in this country that the mining company wants to look around There is the Hammer Head Shark Dreaming in where the company wants to look around in Oobagooma side where the old jetty is. We know miners. They do not know the country properly and they might make a mistake when they are in the country. The might break the Law for Aboriginal people and then we might get sick and something might happen to them.
31.We can see how many people get accidents when they go to our country without the traditional owners. It is happening all the time.
32. The government only knows about some of the places in our country. We are the traditional owners and we are the only people who really know the country. We are the people who know how dangerous those places are and how to quieten the Dreamings for the country.
33.The miners have to come talk to us so that we can look after the country properly, no-one else but the traditional owners can do that.
34.If a company tries to work on our country and we do not know what they are doing then we will worry. The old people will worry about what is happening there and they will worry that people will get sick because those miners are unwelcome in the country.
35.If the miners want to go there then they have to explain what they are really aiming to do. We do not know what they are really doing in the country. They have mapped out a big country and we do not know what they really want. They should tell us what they are really looking for and what kind of ideas they have.
36.We have to work together with Anmarra in a good way. We have to understand each other both ways.
37.Aboriginal people have to show respect for each other and the country. We show respect for other Aboriginal people too and their culture. Miners should have respect for our Law and culture,
38.Some Anmarra people listen to Aboriginal people but this mob are not thinking about Aboriginal people. If they just go out and do it without asking then that is not a proper way of doing it. They should show people where they want to go in a rightful way. We just get the paper and they do not ask us where they can go by Aboriginal way. They just put the mark on the map but they do not know where they are really going and what is there for Aboriginal people. These miners might make a mistake and go to the wrong places and then they will have accidents.
39.Out of respect for country and respect for our culture and our people the miners should come to us first to tell us what they are really doing there. They should respect the way we believe in our Dreaming and what we were taught to believe by our old people. This is our Law and culture, our way of living in our country. We are the kind of people who believe in our spirituality. Our Dreaming was given to us by our old people and we are still following that today. We are still protecting our country no matter what Anmarra say we still have to look after our country. The miners should show us some respect and ask us about our country and not just come in.
40.Other mining companies show us respect by making an agreement and forming a good relationship with us. Other companies understand what we are trying to say to them, like Koolan Island where we have a good agreement and they respected what we said and they made the agreement strong for us. We have had other agreements for looking around and they were about relationships and respect between Dambimangari mob and the mining company.
41.It is important for this company to have an agreement with us to make sure that they do the right thing and not destroy the country and our sacred sites. They have to respect that. They might wasn’t to mine but they should talk to us first from the beginning from when they want to just look around.
42.We thought that things were changing with mining companies. We thought that they knew how to respect Aboriginal people and their country. They need to talk to us before they do these kinds of things so that we can go out with those people before they start looking around. They should take old people and young people to make sure that they do not damage our places.
43.We want them to come to talk to us in a proper way.’
The evidence of Mr Woolagoodja is uncontested and I accept it. He is one of the persons registered as part of the applicant for native title and I accept he has authority to speak on behalf of the native title party.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken pursuant to them are likely to (in the sense of there being a real risk) that there will be interference with the community or social activities of the native title party (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 (‘Smith’) at 449-450, ([23])). Direct interference involves an evaluative judgement 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 451, ([26])). The assessment is also contextual taking 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 451, ([27])).
The evidence suggests that E04/1537 and E04/1538 have been subject to some prior exploration activity for a limited time period but this is not a case where there has been extensive prior mining or exploration activity which may already have affected the native title party’s community or social activities. The issue under s 237(a) is whether the extent of community or social activities is such that exploration is likely to interfere with them.
The uncontested evidence, including that of Mr Woolagoodja, establishes the following facts:-
Members of the native claim group and native title party live at Yaloon or Cone Bay located 500 metres from E04/1538
Members of the native claim group and native title party live and work at Koolan Island some 15 kilometres northeast of E04/1537 and some 40 kilometres south west of E04/1535
Members of the native claim group and native title party live in Widjingnarri Bart Bart or Freshwater Cove located within E04/1534
Djarworrada Aboriginal community is within E04/1534
Montgomery Island Aboriginal Reserve is a “big big” place for all members of the native title claim group (which is entirely overlapped by E04/1535). It is a camping place and has an important story related to it.
Members of the native claim group and native title party were born on the area of the proposed licences.
Members of the claim group and native title party continue to engage in community and social activities which are a manifestation of their native title rights and interests on the proposed licence areas. These include camping, hunting, fishing, gathering of bush tucker, teaching young people about the native title party’s culture and traditional practices, and visiting and looking after places (including paintings) in an area which extends from Kunmunya, located 30 kilometres north of the northernmost proposed licence to Graveyard or Strickland Bay, located within the southernmost tenements. In particular; Freshwater Cove located within E04/1534; Montgomery Island and surrounding reef located within E04/1535; Doubtful Bay and Raft Point located within E04/1536; Strickland Bay located within E04/1537 and E04/1538; and Dugong Bay located within E04/1538.
Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. The Tribunal also has regard to the fact that generally an exploration licence area is a small part of the overall claim area and the community and social activities occur over that larger area (Cheinmora at [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), J Sosso (at [43]-[44])).
Although mindful of these considerations, they are not decisive in all cases in reaching a conclusion that interference with community or social activities is unlikely (Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner (‘Banjo Wurrunmurra’ at [19]-[23]). In my view the present case exhibits factors which lead me to find that the proposed exploration activity is likely to directly interfere with the community or social activities of the native title party: The native title party’s members live in a number of locations in close proximity or within the proposed licence areas, access to the areas is via boats and vehicles, and there is evidence that a number of community or social activities are currently carried out on a regular basis.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. Recorded on the Register kept under the Aboriginal Heritage Act are 5 open access sites and 15 closed access sites within E04/1534, 1 closed access site within E04/1535, 3 open access sites within E04/1536, 5 open access sites within E04/1537 and 2 open access sites within E04/1538, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licences or in the vicinity. 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. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The uncontested evidence of Mr Woolagoodja shows the area of the proposed licences to contain a number of areas of particular importance to the native title party’s dreaming and culture which include the following:
An undisclosed number of Wanjina and Wungurr dreaming sites (para 7) and other sites not disclosed to DIA (para 32)
An undisclosed number of closed sites in which it is asserted that “we have to take people and introduce them, they cannot go themselves” (para 11)
Eagle Point dreaming site possibly within E04/1536 (para 13)
A “main Wanjina place” in Raft Point within E04/1536 (paras 19 and 24)
Dugong Bay and hills within E04/1538 (para 19)
Widjingnarri Bart Bart or Freshwater Cove within E04/1534 (para 20)
Strickland Bay within E04/1537 and E04/1538 containing two Wungurr places and burial places (para 22)
Montgomery Island and reef within E04/1535 containing a camping place and a dreaming story (para 25)
A “sacred island” near Montgomery Island which is possibly within E04/1535 (para 25)
A women’s restricted site in Doubtful Bay
Hammer Head Shark dreaming site deposed to be in one of the proposed licences (para 30)
I am satisfied that these sites and areas are of particular significance to the native title party in accordance with its traditions. I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The Government party relies the regulatory regime based on the Aboriginal Heritage Act which has been described on numerous occasions by the Tribunal, most recently in Maitland Parker at [31]–[38], [40]–[41]. While the Tribunal has usually found that the site protection regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (Banjo Wurrunmurra at [26]–[34]).
As already stated, the grantee party has not provided evidence of its exploration intentions and so the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full. I accept that the grantee will act lawfully and in accordance with the Aboriginal Heritage Act. Despite these factors this is a case where, in my view, the normal negotiations mandated by the Act should take place to avoid the likelihood of interference with the sites identified by Mr Woolagoodja. I make this finding based on the evidence that the subject area contains areas which are of particular significance to the native title party and is site rich, containing a number of areas and sites associated with important dreaming stories of such importance that some sites cannot be entered or disturbed except in accordance with traditional law and custom. The number and nature of the sites which exist on the subject area and are not on the public record means there is a real risk of interference with them despite the protective provisions of the Aboriginal Heritage Act.
Major disturbance to land and waters (s 237(c))
As the evidence relating to ss 237(a) and 237(b) of the Act supports a determination that the expedited procedure is not attracted in relation to E04/1536, E04/1537 and E04/1538 it is not necessary to consider whether major disturbance to land is likely to occur.
Determination - expedited procedure is attracted
The determination of the Tribunal is that the grant of exploration licences E04/1534 and E04/1535 to FMG Resources Pty Ltd are acts attracting the expedited procedure.
Determination – expedited procedure is not attracted
The determination of the Tribunal is that the grant of exploration licences E04/1536, E04/1537 and E04/1538 to FMG Resources Pty Ltd are not acts attracting the expedited procedure.
Hon C J Sumner
Deputy President
17 September 2007
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