Victor Barunga & others on behalf of Dambimangari/Western Australia/Kimberley Resource Development Pty Ltd - [2011] NNTTA 16

NATIONAL NATIVE TITLE TRIBUNAL

Victor Barunga & others on behalf of Dambimangari/Western Australia/Kimberley Resource Development Pty Ltd, [2011] NNTTA 16 (16 February 2011)

Application No: WO09/37

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 & others on behalf of Dambimangari – (WC99/7) (Applicant, native title party)

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The State of Western Australia (Government party)

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Kimberley Resource Development Pty Ltd (grantee party)

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

Tribunal:      Helen Shurven, Member
Place:             Perth
Date:              16 February 2011

Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 148, 151(2), 237
Mining Act 1978 (WA), ss 24, 26, 29, 63
Aboriginal Affairs Planning Authority Act 1972 (WA), s 31
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18

Cases: Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007)
Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362)
Ned Cheedy and Others on behalf of Yindjibarndi # 1/Western Australia/Cazaly Iron Pty Ltd, NNTT WO06/529, [2008] NNTTA 39 (14 April 2008), Hon C J Sumner
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
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
Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 150 (15 September 2010), Member O’Dea
Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner

Representative of the Lauren West, Kimberley Land Council

native title party: Ania Maszkowski, Kimberley Land Council

Representatives of the Rod Wahl/Shelley Moore, State Solicitor’s Office

Government party: Greg Abbott, Department of Mines and Petroleum

Representative of the

grantee party: Peter Lewis

REASONS FOR DETERMINATION

On 8 October 2008, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1621 (‘the proposed licence’) to Kimberley Resource Development 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).
E04/1621, comprising an area of 645.5 square kilometres located 195 kilometres north east of Derby, is overlapped 99.17 per cent by the native title claim of the Dambimangari People (WC99/7, registered from 31 May 1999).
The proposed licence E04/1621 was also overlapped by 0.83 percent of the registered native title claim of the Uunguu People (WC99/35). The Tribunal was informed on 12 August 2010, by the grantee party representative, that this portion was excised from the proposed licence, so no further consideration is given to that overlap in this determination.
On 9 February 2009, Victor Barunga and others on behalf of the Dambimangari People (WC99/7) (the ‘native title party’) lodged an expedited procedure objection application (WO09/37) with the Tribunal.
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Directions made by the Hon C J Sumner on 24 February 2009 included the request that the Tribunal be provided with: contentions of the State by 2 June 2009; contentions of the native title party by 9 June 2009; and contentions of the grantee party by 16 June 2009.
The Government party lodged its contentions and evidence on 16 July 2009.
Following a number of requests from the native title party to amend directions, the Government party and the grantee party expressed a desire to request dismissal of the objection application under s 148(b) of the Act. It was suggested that a further period be afforded to the native title party to execute an agreement which was being negotiated between the grantee party and the native title party. Following further negotiations, a springing order was imposed on the native title party on 10 September 2010, for compliance on or before 28 September 2010, with non compliance attracting a dismissal of the objection application WO09/37, pursuant to s 148(b) of the Act. The grantee party revised compliance date was 5 October 2010. The agreement between the grantee party and the native title party was not able to be finalised.
The contentions of the native title party and the affidavit of Ms Janet Oobagooma in support of the native title party contentions, both unsigned, were lodged on 24 September 2010. The signed affidavit of Ms Janet Oobagooma was lodged on 8 October 2010. In considering the issue of the sworn affidavit of Ms Oobagooma being lodged out of time, there were no objections to it being accepted, and the Tribunal is not bound by the rules of evidence (s 109(3) of the Act). I am satisfied that the sworn affidavit is admissible, accept it on its face, and will deal with the material for the purposes of making a predictive assessment pursuant to s 237 of the Act (see Judy Hughes (Thalanyji)/Western Australia/Taipan Resources NL, NNTT WO01/618, [2003] NNTTA 69 (1 May 2003) Mr John Sosso (Reported – Hughes v Western Australia (2003) 182 FLR 362)).
The grantee party contentions were lodged on 5 October 2010.
The parties agreed that this matter could be determined ‘on the papers’ (i.e. without holding a hearing) and I am satisfied that the objection can be adequately determined in this way (s 151(2) of the Act).

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’), Hon C J Sumner considered the applicable legal principles (at 439-449 [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 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires 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 Mines and Petroleum (‘DMP’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DMP, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs (‘DIA’) and obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I 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]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of 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 State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).

Evidence in relation to the proposed act

Government party documents include: a copy of the stamped application for mining tenement; a tengraph Quick Appraisal; a draft tenement endorsement and conditions extract; and a block identifier showing graticular sections applied for in exploration licence E04/1621.
A map prepared by the Tribunal’s Geospatial Services on 26 October 2010 shows that there are no Aboriginal communities within the proposed licence site.
DIA documents provided by the Government party and the native title party reveal that there are 18 sites registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the proposed licence area.
Government party documents indicate there are no current licences or leases overlapping E04/1621.
According to the list of tenements in the Quick Appraisal, there has been a small amount of previous mineral exploration activity overlapping the area of the proposed licence site by up to 1.7 percent between the years 2000-2002 with no apparent activity since that time. Overlapping the area are also: various waterholes; vacant crown land; areas for the use and benefit of aborigines; part of the Prince Regent River System (4.5 percent overlap); multiple rain forest areas and rain forest monitoring areas (less than 0.1 percent overlap each); and conservation of flora and fauna areas (6.6 percent overlap). Four dead tenements overlap the proposed licence site. Of these, one was forfeited and three were withdrawn.
The grant of the proposed licence 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). According to documents provided by the Government party, these 4 conditions, and the following 28 other conditions, will regulate the exploration activities on the current proposed licence site:

5The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Conservation of Flora and Fauna Reserve 27164 and Use & Benefit of Aborigines Reserves 15530 and 23079.

In respect to the area of land designated PCP150 (Proposed Conservation Park) in TENGRAPH, hereinafter referred to as the designated area, the following additional conditions shall apply:
6Prior to accessing the license area, the licensee shall consult with the Environmental Officer, DoIR, and ensure that where required all vehicles and equipment entering the designated area are washed down to remove soil and plant propagules and adhering to such conditions specified for the prevention of the spread of soil-borne diseases.
7Prior to any activity involving disturbance to vegetation and soils including:-
·        exploration access; and/or
·        exploration sampling
the licensee preparing a detailed program for each phase of proposed exploration for written approval of the Director, Environment, DoIR to consult with the Regional/District Manager, Department of Environment and Conservation or other government agency (as relevant) prior to approval. This program to describe the environmental impacts and programs for their management and is to include:-
·        maps and/or aerial photographs showing the proposed locations of all ground activities and disturbance;
·        the purpose, specifications and extent of each activity and disturbance;
·        descriptions of all vegetation types (in general terms), land forms, and unusual features likely to be disturbed by such proposed disturbances;
·        details on proposals that may disturb sensitive terrestrial habitats including any declared rare flora and fauna if applicable;
·        procedures to protect the integrity of special ecosystems such as wetland systems, mangal communities and rainforest areas (and/or associated rainforest monitoring sites) if applicable;
·        techniques, prescriptions, and timetable for rehabilitation of all proposed disturbances;
·        undertaking for corrective measures for failed rehabilitation;
·        details of water requirements from within the designated area;
·        details of refuse disposal; and
·        proposals for instruction and supervision of personnel and contractors in respect to environmental conditions.

8Access to and from and the movement of vehicles within the licence area being restricted to ground or seasonal conditions and routes approved under the program or otherwise agreed by the Environmental Officer, DoIR.
9At agreed intervals, not greater than 12 monthly, the licensee providing a brief report to the Director, Environment, DoIR outlining the progress of the operation and rehabilitation program and the proposed operations and rehabilitation programs for the next 12 months.
10Prior to the cessation of the exploration/prospecting activity in the designated area, the licensee notifying the Environmental Officer, DoIR and arranging an inspection as required.

In respect of the areas outlined in red in Tengraph and designated AW 64 (ANCA Wetlands- Prince Regent River) also subject to:
11Written notification, where practicable, of the time frame, type and extent of proposed ground disturbing activities being forwarded to the Department of Water’s Kimberley Office seven days prior to commencement of those activities.
12Any significant waterway (flowing or not), wetland or its fringing vegetation that may exist on site not being disturbed or removed without prior written approval from the Department of Water.
13The rights of ingress to and egress from the licence being at all reasonable times preserved to officers of the Department of Water for inspection and investigation purposes.
14The storage and disposal of hydrocarbons, chemicals and potentially hazardous substances being in accordance with the Department of Water’s Guidelines and Water Quality Protection Notes.
15All Mining Act tenement activities prohibited within 200 metres of RAMSAR or ANCA listed wetlands unless written permission of Department of Environment and Conservation, in consultation with the Department of Water, is first obtained.
16All Mining Act tenement activities prohibited within 200 metres of “Conservation” and “Resource Enhancement” Category wetlands unless written permission of the Department of Water is first obtained.
Consent to mine on Townsite and Landing Place Reserve 1011 granted:
Consent to mine on the foreshore, seabed and navigable waters granted subject to:
17Unless the written approval of the Director, Environment, DoIR is first obtained exploration operations within the licence area being restricted to the following activities:
·        reconnaissance by aircraft, helicopter, hovercraft, boat and amphibious vehicle;
·        bathymetric sounding and side scan sonar profiling, airborne radiometric and magnetic surveys, sea floor mapping, imagery and photography;
·        seismic survey (non-explosive) subject to whale, turtle watch and fishery protection procedures prescribed by the Department of Environment and Conservation (DEC) and Fisheries Department.

18Prior to any activity involving environmental disturbance to the seabed and general marine environment including:
·        vibro and shallow coring
·        drilling
·        sampling (grab, siphoning, etc.)
·        dredging
the licensee providing a detailed exploration program for written approval of the Director, Environment, DoIR in consultation with the Department of Environment and Conservation (DEC) and the Fisheries Department. This program to describe the environmental impacts and management program and is to include the following:
·        maps and/or aerial photography showing the proposed locations of all ground surface and seabed activities;
·        the purpose, specifications and extent of each activity;
·        details on proposals which are likely to affect sensitive marine habitat/resources;
·        details of techniques, prescriptions and timetables for management of all proposed disturbances;
·        proposals for instruction and supervision of personnel and contractors in respect to environmental conditions.
19The licensee not establishing any camping facilities, access tracks, boat moorings, fuel depots or similar establishments on any coastal mangrove area or beach/foreshore environments without the prior written approval of the Regional Manager, DEC.
20No landing on any offshore islands without a quarantine program receiving the prior written approval of the Director, Environment DoIR in consultation with the Regional Manager, DEC.
21No dumping of rubbish, discharge of fuel, oil or other pollutants into the marine environment.
22Damage to coral reefs, seagrass meadows and mangroves being avoided.
23Turtle and bird nesting areas not being disturbed.
24Only low toxicity drilling muds or additives being used in offshore drilling operations.
25No explosives being used in exploration without the prior written approval of the Director, Environment, DoIR.
26Accidental spillages of fuel, oil or other pollutants of an amount greater than 80 litres being reported to the DEC within 12 hours of any such spillage occurring.
27At agreed intervals, not greater than 12 monthly, the licensee providing a brief report to the Director, Environment, DoIR outlining the progress of the current and proposed exploration and environmental management program.
28Prior to the cessation of exploration activity the licensee notifying the Director, Environment, DoIR and the Regional Manager, DEC and arranging an inspection as required.

29If in the opinion of the Director, Environment, DoIR the exploration operations are causing any damage to or undue interference with living marine resources or their environment on any part or parts of the licence area, the licensee ceasing exploration on such part or parts within 24 hours of notification from the Director, Environment, DoIR.
30The licensee carrying out exploration activities in such a manner as not to damage any pipeline, wellhead, capped well or other equipment associated with seabed exploration and mining.
31Operations of vessels in accordance with conditions specified by the Department of Transport (the Department of Transport to be advised of all marine activities in order that appropriate Notices to Mariners may be promulgated). All vessels concerned should be surveyed and manned as required by the WA Marine Act 1982 or the Commonwealth Navigation Act 1912, and all vessels must be navigated with due regard to the requirements of the International Collisions Regulations and with respect to the nature of fishing operations.
32No interference with Aquaculture Lease No’s 313, 322, 461, 468 and 536.

The following endorsements (which differ from conditions in not making the licensee liable to forfeiture for their breach) will be imposed:
1.The licensee’s attention is drawn to the provisions of:
· the Aboriginal Heritage Act 1972 and any Regulations thereunder;
· the Conservation and Land Management Act 1984 and any Regulations thereunder;
· the Marine and Harbours Act 1981 and any Regulations thereunder;
· the Marine Navigational Aids Act 1973 and any Regulations thereunder;
· the Fish Resources Management Act 1994 and any Regulations thereunder;
· the Wildlife Conservation Act 1950 and any Regulations thereunder;
· the Water and Rivers Commission Act 1995 and any Regulations thereunder; and
· Identification of environmental sensitive wetlands listed within the RAMSAR Convention 1971, and ANCA’s Directory of important wetlands, the National Estates Register and the Environmental Protection Policies 1999.
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 areas. The licensee is advised to contact the Department of Environment and Conservation for detailed information on the management requirement for rainforest areas and rainforest monitoring site or sites present within the tenement area.
In respect to consent to mine on the foreshore, seabed and navigable waters:
4.Prior to the commencement of any exploration activity in the vicinity of any Aquaculture Lease or the Prince Regent River the licensee liaising with the Pearl Producers Association or the Kimberley Marine Tourism Association.

Evidence provided by the native title party

The native title party has provided the following documents:
·An unsigned statement of contentions dated 28 September 2010;
·An unsigned affidavit of Ms Janet Oobagooma dated 28 September 2010; and
·A signed affidavit of Ms Janet Oobagooma dated 6 October 2010 (with corrections but otherwise identical to the original unsigned affidavit).
The statement of Ms Janet Oobagooma is as follows:
1.My name is Janet Oobagooma. My Aboriginal name is Ewamburr. I was born on the 3^rd of March 1942 in Broome, Western Australia. I was found at Langi.
2.I am a member of the Dambimangari Native Title Determination Application (WAD 6061/98).
3.I know the area where Kimberley Resource Development Pty Ltd, “the grantee party”, has applied for Exploration Licence Number E04/1621, “the exploration licence area”, very well because I have travelled all over the country in the Dambimangari claim area with my grandfather and I have been shown a map of the application area. The maps I was shown are attached to this affidavit and marked “A”. Dambimangari means “Our Home”.
4.I can speak for that country because of my connections through my family. My Mother, Grandfather and Uncle are from the George Water area of Kunmunya Reserve which is the northern part of the tenement. My Father is Wunumbal from the Prince Frederick Region. My Mother’s Mother is from St George Basin area, where Donny Woolagoodja’s Mother is from. My Father’s mother is from Willingin. I am connected to Wuranbal to top Worrorra and bottom Worrorra in that area, and also, the Islands. I am connected to Freshwater Cove and Lizard Island. I have two Grandfathers married to women from that area.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5.The exploration licence area falls on country I have to look after, specifically the sites. With the law comes responsibility teaching and caring for the country. The teaching never stops.
6.The exploration licence area runs right through Dambimangari country. I know this country like the back of my hand. I still go back and visit that country often. I don’t take my family their father is from different country.
7.We are the families that speak for the land where the exploration licence area is. The Barungas, Umbagais, Oobagoomas, and the Morlumbun’s Woolagoodjas. Donny Woolagoodja and I went through that country with an Anthropologist last year. Donny’s Grandfather and my grandmother are from King Cascade.
8.There are a number of sacred sites in this area that are known to me from visiting.
9.I grew up all along those Islands where the exploration licence area is. The Rangers still go up there.
10.There is good hunting and fishing in many parts of the exploration licence area. We hunt there. We get fresh mussels and lots of fish too. There is Kangaroo for hunting and lots of dingoes too.
11.We get bush tucker like bush vegetables and bush medicines. There are lots of things that grow in the Mount King area. There are two types of water lilies. We still go there all the time. We go fishing in the exploration licence area.
12.We hunt and eat pythons, rock wallabies and there are two kinds. It is very rugged mountainous country that way. There are bandicoot and huge bush hens on Augustus Island. My grandfather used to take me to Augustus Island to see the bush hens. You also get snakes and taipans all along the exploration licence area. The Company must be aware of that.
13.Through the exploration licence area the boys, including my grandsons, traps quolls and things on the islands as rangers. They did one just 2 weeks ago.
14.Historically people lived out there, because of the Missions and they were living on country. But after that the defence people came in and took that away. But we still go there.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
15.I know the exploration licence area very well. There are hundreds of places in my country, including inside the exploration licence area, which are very important and have great significance for my community.
16.There are several ceremonial grounds through the exploration licence area especially in the northern part of the exploration licence area. These are very important places. We do ceremony all year round. If there are visitors to the area, initiation and circumcision.
17.Mount King is an important area because in the dreamtime a dog peed there it is living water. The water never dies.
18.There is a dreamtime song that goes through part of the tenement area near Camden Sound and near George Waters.
19.I used to go to Augustus Island as a girl with my grandmother, when I was living at Kunkolya Mission. The island has many stories, names camping places of old people and talking waters.
20.The old people used to do dances and ceremony in the exploration licence area. There are lots of stories for that area.
21.There are people buried throughout the exploration licence area. You will find that there are all kinds of artefact scatters that our old people left around on that country, you might not be able to see them and we don’t want anyone to touch them. There is an art and a lot of other culturally important things in the area.
22.There are also all kinds of rock art around there and we don’t want people to see any of that, without us telling them which ones are alright for people to visit.
23.Raft Point is an important hill in Doubtful Bay because in the Dreamtime a Wunumbal woman Ngumbiri, she was getting impatient and needed to go home. She poked the sea in the eye. The sea became a tidal wave, like a tsunami the sea reached the desert. That’s why you have sand dunes and those markings on the mountains like water marks on the mountains.
24.If you disturb it [water], you will make the snake angry and the water will come up again.
25.There are 2 snakes in that sea. One has a frog mouth, it travels through the cyclones. The other is black yellow and white you find it in the tide- don’t make it angry.
26.These are special to us. We don’t want white people getting too close to that area.
27.Walcott Inlet in and around the exploration licence area is a dangerous place. In the dreamtime the flood water went through there from the Gibb River. The flood is famous; Aunty Daisy wrote a book about it. It is extremely dangerous, very tidal.
28.George Waters is dangerous, we had 3 dingies (sic) that almost tipped. We were escorted by 2 crocodiles on either side. I spoke to them in language and introduced myself. My Wunggud is crocodile that’s why I talk in language to crocodiles Langi is my Wunggud place.
29.You have sites everywhere throughout the exploration licence area. People have to be lucky to see the sites you can only see them by foot, walking and climbing. Some people won’t be able to get there. My feet can’t get there. In my country there are huge cliffs sharp like razors.
30.We are looking after all the important places in our country. We are passing on these stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and look after it.
MAJOR DISTURBANCE TO LAND OR WATER
31.I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.
32.White people and strangers must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. We know that strangers don’t follow our Law, that’s why they have to slow down and come and meet with us.
33.Strangers and people that haven’t been there for ages have to be smoked. Smoking lets the spirit know you have come to them for the first time, been away so long, apologising to country even to the animals and birds.
34.If stranger-blackfellas come to our country, they don’t muck around because they understand. They know about blackfella Law. That’s why we frightened about white people strangers coming to our country because they just jump in.
35.If strangers damage a site, artefact or other important place or thing, we feel very upset.
36.If blackfellas damage any important places or things in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again.
37.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 bit back because they are taking something from our country our land.
38.We are not around to see what the mining mob are doing. They have to contact us. We want to make sure that they are doing the right thing. They have to look after environment, bush tucker, animals and water.
39.If we make an agreement with mining people, we will tell them where they can go on our country. But they can’t do anything to our Dreamings.
Ms Oobagooma states she is a member of the Dambimangari native title determination (WAD 6061/98), and I accept that she has the authority to speak for country on behalf of the native title party.

Evidence provided by the grantee party

The grantee party has provided an unsigned statement of contentions received on 5 October 2010.

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of E04/1621, 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] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). 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 451 [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 451-452 [27]).
The native title party contend that, within the tenement area, they ‘conduct Law ceremonies’ (at 13(b) and 16(g); ‘hunt and fish’ (at 13(c) and 16(c)); visit the country and collect traditional food and products (at 13(d) and 16(b, d & e)); and ‘look after Aboriginal paintings, burial places and Aboriginal sites of importance and significance’ (at 13(f) and 16(f & h)).
In support of these contentions, Ms Oobagooma’s affidavit states that she is a member of the native title party and is familiar with the proposed licence site. She states that she visits the country ‘often’ (at 6) and that she ‘and others’ hunt there (at 10, 12, 13), fish there (at 11), and get bush tucker and medicines there (at 11). She states that ‘The old people used to do dances and ceremony in the exploration licence area. There are lots of stories for that area’ (at 20) and it is her role and the role of others to look after it (at 30).
The native title party contentions state (at 14) that ‘the mere existence of the Grantee Party on the tenement, in circumstances where there has been no negotiation or consultation between the Native Title Party and the Grantee party, could be likely to give rise to a direct interference with the carrying of the community or social activities of the Native Title Party...’ However, the contentions do not fully describe how that interference will be substantial, rather relying on statements such as ‘Direct interference with the carrying on of community or social activities cannot, logically, be insubstantial in its impact’ (at 15).
In support of their argument, the native title party has provided general evidence of the type of community and social activities that are currently conducted on or near the area of E04/1621 by the native title party. Ms Oobagooma’s affidavit does not particularise these activities in any detail. As stated, there is some reference to community and social activities within the proposed licence site such as hunting, fishing and ceremonies, but very little evidence as to the frequency with which those activities might occur, how many people may be involved, or the extent to which they occur on the proposed licence site. Ms Oobagooma does refer to the visit by herself and a number of other families, with an anthropologist, to the country (at 7), but that appears to have been a one off visit. She also refers to rangers visiting the area (at 9 and 13), and going to the Mount King area ‘all the time’ (at 11). The grantee party contentions do not agree that the Mount King area is within the proposed licence site. The map prepared by the Tribunal’s geospatial services on 26 October 2010 indicates that Mount King is approximately 20 kilometres from the eastern boundary of the proposed licence site.
According to the Tribunal geospatial services map, there are no Aboriginal communities within the proposed licence area, and three communities within approximately 30 kilometres of the boundaries of the proposed licence area (Djarworrada; Kunmunya and Marnebulornge). However, no specific evidence has been provided by the native title party on whether the grant of the proposed licence will affect the traditional community or social activities of those communities, or any other communities, specifically.
The proposed licence site is for exploration activities only. A mining lease would be required for any mining activities, under a separate future act procedure.
As well as providing some additional statements (outlined below), the grantee party contentions state that it agrees with the Government party contentions. Government party contentions state that the grant of the proposed tenement is not likely to interfere directly with the carrying on of community or social activities as there are no aboriginal communities on the proposed licence site; there are reserves for the use and benefit of aborigines (as per the Aboriginal Affairs Planning Authority Act 1972 (‘AAPAA’)); and there are other reserves (as per s 24 of the Mining Act).
The grantee party contends that they ‘will provide detailed proposed exploration programmes and extend every effort to comply with the requests of Traditional Owners when conducting exploration activities’ (at 3). The grantee party does not dispute the authenticity of Ms Oobagooma’s affidavit but contends that several of the areas referred to in it are located outside the tenement area (at 4 and 5), including Robinson River, Mount King, and Raft Point. The map prepared by the Tribunal’s geospatial services shows that these areas are not within the proposed licence area. I appreciate that it is sometimes difficult to match areas of community and social importance with precise geographical locations.
Ms Oobagooma also refers to community and social activities taking place at Augustus Island (at 12 & 19), Camden Sound (at 18), an area near George Waters (at 18 & 28), and also refers generally to dreamtime places of significance such as Walcott Inlet (at 27). Referring to the map prepared by the Tribunal’s geospatial services, it appears that parts of Augustus Island, George Waters, and Walcott Inlet are within the proposed licence area. Camden Sound does not appear to be within the proposed licence area.
The Government party relies on its regulatory regime under the Mining Act 1978 (WA) to contend that there is not likely to be direct interference with community or social activities by the native title party on the proposed licence site. They have placed 32 conditions and four endorsements on the granting of the lease. It also contends that the Tribunal is bound by the decision of Nicholson J that, given the protective effect of sections of the AHA, the chance of interference is remote (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [75]-[77], (‘Little’)).
Similar to Ned Cheedy and Others on behalf of Yindjibarndi #1/ Western Australia/ Cazaly Iron Pty Ltd, [2008] NNTTA 39 (4 April 2008) at [41], where it was held that the expedited process was attracted, the area in this inquiry also appears to have been subject to only limited previous exploration activities by other parties. In this inquiry, grantee party contentions state that ‘access to the area will be confined solely to existing tracks. Where tracks are non-existent, access will be confined solely to helicopter, float plane or marine transport from Derby’ [emphasis added] (at 2).

I accept that the grantee party contentions shows a willingness to consult with the native title party (at 3) and to access the area via existing tracks or via helicopter, float plane or marine transport from Derby (at 2).
The grantee party also contends (at 6) that in negotiations between it and the native title party preceding this inquiry, they ‘extended every effort to execute an agreement with the KLC [Kimberley Land Council – representative body for the native title party]’. However, consistent with previous decisions of the Tribunal (for example, Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea), (‘Butcher Cherel’), I find that this particular contention is not material or probative in this matter.
Particular evidence of the native title party community and social activities, who conducts them and when, and the geography of where they are conducted, is not outlined in the evidence presented by the native title party. The size of E04/1621 is 645.5 square kilometres and the area of the Dambimangari claim is 28,019.648 square kilometres. Consistent with previous Tribunal decisions such as Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL, NNTT WO07/896, [2008] NNTTA 108 (6 August 2008), Hon C J Sumner, (‘Cooke’), I find that the size of the proposed licence area in the context of the much larger native title claim, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they have been shown to be carried out in parts of the proposed licence area such as Augustus Island, George Waters and Walcott Inlet).
Taking all these factors into account I find that the exploration activity is not likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

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. As stated, the Register kept under the AHA shows there are 18 registered sites within E04/1621, but there may be other sites or areas of particular significance to the native title party over E04/1621 or in the vicinity. The AHA protects all Aboriginal sites, whether on the Register or not. Six of these sites are registered as being closed sites. 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. In addition, a registered site is not necessarily a site of particular significance for the purposes of s 237(b) of the Act.
The uncontested evidence of Janet Oobagooma shows the area on or near the proposed licence to contain a number of areas of particular importance to the native title party’s dreaming and culture which include the following:

Ceremony grounds through the exploration licence area, especially in the northern part of the tenement (at 16)
A dreamtime song near George Waters (at 18)
Stories, names, camping places of old people and talking waters on Augustus Island (at 19)
A dreaming site at Walcott Inlet (at 27)
George Waters (at 28)

As stated above [at 34 & 35], the grantee party contests the further evidence of Ms Oobagooma in relation to Robinson River, Mount King and Raft Point, on the basis that these are external to the perimeter of the proposed licence site. Nevertheless, Raft Point is relatively near the proposed licence site (within approximately 5 kilometres), and holds particular significance according to Ms Oobagooma. I note that the grantee party does not contest the evidence lead by Ms Oobagooma in relation to the significance of a dreamtime song near Camden Sound, which is also outside of the proposed licence site, but very near it (within approximately 5 kilometres).
Words, phrases and descriptions used by Ms Oobagooma in connection with these areas illustrate their cultural and spiritual significance, in particular:

In relation to Raft Point where there is a dreaming: ‘If you disturb it [water], you will make the snake angry and the water will come up again’ (24). She then goes on to talk about the two kinds of snakes in the sea and the importance of not making them angry. Ms Oobagooma says that ‘These areas are special to us. We don’t want white people getting too close to that area’ (26).
‘Walcott Inlet in and around the exploration licence area is a dangerous place.’ Ms Oobagooma talks about a dreaming there and the famous flood that Aunty Daisy wrote a book about. She says that it is an extremely dangerous place (27).
Ms Oobagooma says that George Waters is dangerous. She talks about speaking to crocodiles in this area who escort native title party dinghies to safety (28).

The sites identified in the evidence may or may not coincide with the registered sites in the DIA documents. 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 AHA, 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 on s 31 of the AAPAA to contend that the grantee party is prevented from accessing aboriginal reserve land without authorisation from the relevant Minister, which in turn requires an agreement with the relevant Aboriginal community with respect to access to the land. There are two Aboriginal reserve areas which overlap the proposed licence by 12.8 per cent and 13.6 per cent respectively. These reserves overlap in the northern part of the proposed licence and do not necessarily overlap with sites of particular significance. The reserve areas do not cover all of the sites of particular significance mentioned in Ms Oobagooma’s evidence and in the DIA documents, and hence this regime will not operate to eliminate the likelihood that sites of particular significance may be interfered with.
The Government party also relies on sections 5, 17 and 18 of the AHA, and sections 24, 26, 29 and 63 of the Mining Act to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker (at [31]-[38], [40]-[41])). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel (at [81]-[91])).
The native title party contentions state (at 10) that in the absence of contrary evidence from the grantee party, the Tribunal may assume they will fully exercise the rights conferred by the tenement, and assume the grantee party will act lawfully (Silver v Northern Territory & Ors (2002) 169 FLR 1 [30] – [32]). In Wilma Freddie and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd NNTT WO03/498, [2004] NNTTA 30 (21 April 2004), Hon C J Sumner, there was no evidence from the grantee party as to its site protection plans, and the Tribunal determined the act was not an act attracting the expedited procedure. In the present matter, there are statements in the grantee party contentions as to its willingness to provide ‘detailed proposed exploration programmes and extend every effort to comply with the requests of the Traditional owners when conducting exploration activities’ (at 3). As stated, they have also indicated an intention to limit access to the site via existing tracks (at 2).
In Butcher Cheryl the Tribunal found that although there were sites of particular significance in the area of the proposed licence, and even in the absence of an RSHA, AHA protection was sufficient because of evidence of the intentions of the grantee party to protect any sites of significance and consult with the native title party before ground disturbing work was undertaken. In the present matter, an RSHA also does not apply as the tenement is in the Kimberley region, and I have come to the conclusion that there are sites of significance within the proposed licence area, notwithstanding that the evidence of the native title party may be imprecise as to the location of those sites.
Each inquiry is presented with evidence which needs to be carefully and discretely evaluated. Whilst the operation of the site protection regime renders it unlikely that the doing of the future act will result in interference with areas or sites of particular significance, the Tribunal is not absolved from undertaking its own risk assessment (Parker v Western Australia [2007] FCA 1027 at [13] and [18] per Siopis J).
In the recent matter of Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 150 (15 September 2010), Member O’Dea at [46] determined that given the existence of sites of particular significance to the native title party on the area concerned, some which may be difficult to identify, and in the absence of any RSHA, there was a real risk that sites of particular significance to the native title party may be inadvertently interfered with by the grantee party. He found that there was a likelihood of interference with sites of particular significance to the native title party.
In reaching a conclusion in this inquiry in relation to s 237(b), I have had regard to the following:
(a)that the legal protections prescribed by the AHA reduce but do not eliminate the risk to areas and any sites of significance or particular significance being interfered with by the grant of a proposed tenement;
(b)the native title party primary evidence of Ms Oobagooma who is a member of the objecting claim group;
(c)that the primary evidence submitted to the Tribunal is challenged by the grantee party in relation to whether some of the sites of significance are within the proposed licence site;
(d)that evidence from the Tribunal’s geospatial services establishes that some of the sites mentioned in the evidence are within the proposed licence area and some are outside of it;
(e)that the primary evidence establishes that Augustus Island, George Waters, Raft Point, Walcott Inlet and Camden Sound are, or are near, sites of particular significance with the meaning of paragraph 237(b); and
(f)DIA documents suggest that this area contains many sites of importance, the cumulative effect of which is that the whole area of the proposed licence is of ‘particular significance’ and is site rich.

I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA. I also acknowledge the significant number of conditions and endorsements applied to approval of the tenement application as well as grantee party statements that they will extend every effort to comply with the requests of the native title party and that they will limit access to the area to existing tracks or alternate non invasive methods of transport. I do note that no primary evidence was lead by the grantee party, and I rely on their unsigned contentions, in comparison with the sworn affidavit evidence of Ms Oobagooma. Taking all of these factors into account, I am of the opinion that this is a case where the normal negotiations mandated by the Act should take place to avoid the likelihood of interference with the sites identified by Ms Oobagooma. I make this finding based on the uncontested evidence that the proposed licence 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 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 which may or may not be on the public record means there is a real risk of interference with them, despite the protective provisions of the AHA.

Major disturbance to land and waters (s 237(c))

As the evidence relating to s 237(b) of the Act supports a determination that the expedited procedure is not attracted in relation to E04/1621, it is not necessary to consider whether major disturbance to land and waters is likely to occur.

Determination

The determination of the Tribunal is that the grant of exploration licence E04/1621 to Kimberley Resource Development Pty Ltd is not an act attracting the expedited procedure.

Helen Shurven
Member

16 February 2011