Violet Drury and Others on Behalf of the Nanda People/Western Australia/Giralia Resources N.L

[2001] NNTTA 38

NATIONAL NATIVE TITLE TRIBUNAL 

Violet Drury and Others on behalf of the Nanda People/Western Australia/Giralia Resources N.L., [2001] NNTTA 38 (18 May 2001)

Application No: WO00/93

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

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

VIOLET DRURY AND OTHERS ON BEHALF OF THE NANDA PEOPLE
(Native Title Party)

- and –

THE STATE OF WESTERN AUSTRALIA
(Government Party)

- and –

GIRALIA RESOURCES N.L.
(Grantee Party)

REASONS FOR DETERMINATION

Tribunal:                   The Hon E M Franklyn QC
Place:  Perth
Date:  18 May 2001

Catchwords:             Native Title – proposed grant of exploration licence – objection to application of expedited procedure – evidence inadequate to ground inquiry under s 237(b) – unchallenged evidence as to relevant social activities such that Tribunal not satisfied the grant will not interfere with the carrying on of the same – finding that the grant does not attract expedited procedure         

Legislation:Native Title Act 1993 (Cth); Mining Act 1978 (WA); Aboriginal Heritage Act 1972 (WA);

Cases:  Ward v Western Australia (1996) 136 ALR 557 at 572;
  Dann v Western Australia (1997) 74 FCR 391

REASONS FOR DETERMINATION IN APPLICATION WO00/93

Background

1. On 1 March 2000 Violet Drury and Others on behalf of the Nanda People (the

   Native Title Party) lodged an objection to the inclusion in a notice issued on 12 November 1999 by the State of Western Australia (the State) under Section 29 of the Native Title Act 1993, (the Act) of a statement that it considered the grant of exploration licence 09/980 (the proposed tenement) to Giralia Resources N.L. (the Grantee) to be an act attracting the expedited procedure. The grounds of objections are as follows:

   “The grant of the exploration licence will interfere with the many Aboriginal sites of significance in the area and constitutes a major disturbance to the land and to the claimant’s attachment (including spiritual attachment) to the land”. 

   In my opinion those grounds rely only on Section 237(b) and (c).

1. A preliminary hearing was held by Deputy President the Honourable C. J.  Sumner on 2 May 2000 and adjourned to 2 June 2000 to enable discussion between the parties as to a possible agreement.  At the adjourned hearing on 2 June 2000 the Grantee contended that the Tribunal was without jurisdiction to entertain the objection application and directions were made for determination of that issue.  On 27 April 2001 Deputy President Franklyn dismissed the Grantee’s challenge to the Tribunal’s jurisdiction.

1. In the meantime, on 18 August 2000, directions were made by Deputy President the Honourable C.J. Sumner requiring the State to lodge and serve on the other parties on or before 1 September 2000 a statement of contentions and all documents relevant to the inquiry to include certain specified information and documents; the Native Title Party to lodge and serve on the other parties on or before 8 September 2000 a statement of contentions to include a statement of the nature and location of sites or areas of significance on or adjacent to the proposed tenement, identifying in each case its particular significance, a statement of the community or social activities of the Native Title Party contended to be likely to be interfered with directly by the grant, a copy of all relevant documents and a statement of the evidence to be given by any witness on its behalf; and the Grantee to lodge and serve on each of the other parties on or before 15 September 2000 a statement of its contentions, a copy of all relevant documents and a statement of the evidence to be given by any witness on its behalf.  Legal submissions by the parties were required to be provided and served on or before 22 September 2000.

1. The State lodged its statement of contentions on 24 August 2000 and its relevant documents on 11 September 2000.  The Native Title Party lodged and served its statement of contentions on 8 September 2000, and on 14 September 2000, an affidavit sworn on 13 September 2000 by one Allister Hill.  On 21 September 2000 it lodged a document entitled ‘Statement of evidence to be given by witnesses and outline of submissions as to where it is proposed the evidence be heard’.  In that document, in purported compliance with the direction to provide a statement of the evidence of witnesses it said only:

   “Evidence to be given by members of native title party

   It is proposed that evidence will be given by a number of members of the native title party claimant group to the effect that:

Particulars

The act is likely to interfere directly with the carrying on of the community or social activities of the native title party;

The act is likely to interfere with areas or sites of particular significance to the native title party;

The act is likely to involve major disturbances to the land concerned, or the creation of rights whose exercise is likely to involve major disturbance to the land concerned.”

That was not compliance with the direction but claimed relevant activities and the existence of relevant sites.  The statement of contentions lodged by the Native Title Party however, and despite the said directions, did not contain any statement as to the nature and location of sites or areas of significance or the particular significance of any site or area.  Nor did it contain any statement of the community or social activities of the Native Title Party contended to be likely to be interfered with directly by the grant. 
The Grantee did not lodge any statement of contentions, documents or statement of evidence. 

1. A directions hearing was convened on 12 October 2000 at which the Native Title Party was directed to comply with the directions made on 18 August 2000 on or before 5pm on 25 October 2000 and specifically:

   “(2)     On or before 5pm on 25 October 2000, the native title party is to provide the following to the Tribunal and each other party:

   a statement of the nature and location of sites or areas of significance on or adjacent to the subject tenements, identifying in each case the particular significance of the site or area; and
   (b)       A statement of the evidence of each witness on which it intends to rely upon at the hearing verified by affidavit by each such witness.”

   The directions hearing was adjourned to 26 October 2000 with liberty to apply. 

1. On 17 October 2000 the Native Title Party advised the Tribunal that the State had failed to provide it with copies of the documents provided to the Tribunal on 24 August 2000 in accordance with the directions but that it had now obtained the same. 

State’s Contentions and Evidence

1. The documentary evidence provided by the State, which is not challenged, includes a tengraph map dated 8 September 2000, showing the location of the proposed tenement on land the subject of pastoral leases 3114/866 (known as “Muggon”) and 3114/867 (known as “Yallalong”), its boundaries, the surrounding lands and their respective tenures.  It shows the proposed tenement to include an area of the Badgeradda Range running from the south near its south-east corner some little way (undefined) along and close to its eastern boundary.  Otherwise the range is shown to the east of the eastern boundary at varying distances.  It also shows the proposed tenement to have a common border on its eastern side with exploration licence 09/864 through which licence the Badgeradda Range runs and, possibly, also on the eastern boundary, a common border with exploration licence 09/833.  The map however is not clear as to whether that border is common or separated by some short distance.  Those exploration licences are on the said pastoral lease land.  The proposed tenement is shown to be bounded on its north-west and southern border by lands the subject of one or other of the said pastoral leases.  The State’s evidence also reveals that there are no Aboriginal communities within the vicinity of the proposed tenement and that a search of the Aboriginal Sites Register of an area which includes the proposed tenement reveals there to be no registered Aboriginal sites within that area. 

   The State’s contentions draw attention to the provisions of the Mining Act 1978 (WA) Section 63, which imposes specific statutory conditions to which the proposed tenement is subject, and Section 20(5) which imposes restrictions on the exercise of the exploration licence rights on pastoral leasehold land. They also draw attention to the provisions of Sections 5, 17 and 18 of the Aboriginal Heritage Act which apply to the lands the subject of the proposed tenement and advise that, if granted, the proposed tenement will be subject to endorsements including one drawing attention to the provisions of that Act.  They also set out conditions which apply to the land the subject of both pastoral leases and, in respect of Muggon pastoral lease 3114/866, specific additional conditions requiring a detailed program for each phase of the proposed exploration for approval by the state mining engineer, the program to include maps and/or aerial photographs showing all proposed routes, construction and up-grading of tracks, camps, drill-sites and any other disturbances, the purpose, specifications and life of all proposed disturbances, proposals which may disturb any declared rare or geographically restricted flora and fauna, and techniques, prescriptions and timetables, for the rehabilitation of all proposed disturbances.  It also contains conditions requiring the rehabilitation of any disturbances.

Native Title Party’s Contentions and Evidence

1. On 24 October 2000 the Native Title Party lodged with the Tribunal an amended statement of contentions and sworn affidavits of Pearl Egan, Clarrie Whitehurst, Michael Vere Robinson and Cedric Stileman Davies respectively.  The amended statement of contentions makes no attempt to comply with the directions to provide a statement of the nature and location of sites of significance and of the community or social activities of the Native Title party contended to be likely to be interfered with directly by the grant.  In the main it contains legal submissions and claims that each of sub-paragraphs (a), (b) and (c) of Section 237 will be contravened by the grant. 

In respect of Section 237(a), it relies on ‘activities with a spiritual dimension’ and on the statement of Carr J. in Ward v Western Australia (1996) 136ALR557 at 572 to the effect that ‘the very thought of intensive exploration activities …. on hunting grounds 10 kilometres away could upset an Aboriginal community and directly interfere with its community life without physical interference to that life ……’.  As to this, the section has been amended since the decision of Carr J and is no longer directed to direct interference with “community life” but to possible interference “directly with the carrying on of community or social activities”.  As I held in State of Western Australia/Derrack Smith of South Coast Metals Pty Ltd (W099) (51) 23 June 2000, to be relevant interference under Section 237(a), the act must be one likely to interfere directly with the physical aspects of the carrying on of community or social activities of the native title holders. 

As to Section 237(b), it asserts as a fact but without particulars, presumably in reliance of the affidavits filed, that ‘the area the subject of the future act includes sites and areas of particular significance to the objector’.  As to Section 237(c), it asserts that the grant of an exploration licence permits major disturbance to the land and that a grant of an exploration licence without referral or consultation with the native title holders will amount to ‘major disturbance’ to the land as it will have a significant impact on the Objectors.  I do not accept that the emotional effect of a grant on the native title holders can amount to “a major disturbance to the land or waters concerned”.

1. In his affidavit, Allister Hill, an anthropologist in the employ of the Yamatji Land and Sea Council (YL & SC) relevantly deposes that the practice of the Native Title Party is to instruct the YL & SC to lodge objections to proposed grants of tenement but to lift the objections once the Grantee agrees to ‘fund and facilitate an Aboriginal heritage survey of the tenement area’, as only by conducting an appropriate heritage survey can they ensure that grievous damage to their traditional country will not occur. There is of course no statutory or legal obligation on a proposed grantee to fund or facilitate such a survey.  Mr Hill refers to the connection of the Native Title Party with the land, its custodial duty and that the Register of Aboriginal Sites is unlikely to be an accurate record of all sites within the relevant land.  He asserts that it is likely that the land in question contains sites of particular significance and that the thought of extensive exploration activities is upsetting to the Aboriginal community and causes distress to its members. 

   Michael Vere Robinson, the principal anthropologist of the YL & SC, in his affidavit, refers to the affidavits of Pearl Egan and Clarrie Whitehurst and expresses his belief, based on experience, that the matters raised therein are typical of the kinds of concerns expressed by Aboriginal people when there is a likelihood of mining and exploration activities on lands for which they have traditional responsibility.  He also expresses his belief, based on his experience as Registrar of Aboriginal Sites and in research, that the Register of Aboriginal Sites is not an accurate register of all sites in the area and that the only way to ensure that sites are not disturbed is to carry out a survey of the area with Aboriginal people who have traditional knowledge and authority to speak for the country.  That latter statement may well be correct, but it is the Objector’s obligation to provide evidence sufficient to ground an inquiry under Section 237(b).

   The affidavit of Mr Davies, a geologist in the employ of the YL & SC, is directed to Section 237(c) of the Act and expresses his opinion as a geologist that the grant of the proposed tenement will create rights whose exercise is likely to involve major disturbance, that opinion being based on his knowledge and experience of specific mining practices exercised on a mining lease (M20/252) in another area, which practices, he testifies, are permitted within the terms of an exploration licence.  His affidavit annexes photographs showing significant degradation of the relevant land over an unknown period of time.  Whether or not the nature of the lands the subject of the proposed tenement and the conditions applicable to it or the rights conferred by it are the same as those which applied to the said mining lease is not addressed.

   I accept that each of them, Mr Hill, Mr Robinson and Mr Davies are experienced, capable and have expertise within their respective fields.  I do not dispute the evidence of Mr Hill and Mr Robinson that the Register of Aboriginal Sites under the Aboriginal Heritage Act 1972 does not necessarily record all Aboriginal sites of significance within any particular area. That is clear from the terms of that Act. It does not follow, however, that within any specific area there is, or is likely to be, in fact, a site or area of “particular significance” within the meaning of Section 237(b). For a site or area to be significant it must be significant to someone and for it to have a relevant “particular significance” ie. a special or out of the ordinary significance, that special or out of the ordinary significance must be known to the holders of native title and be in accordance with their traditions.

   The apparent inability of the Native Title Party to provide the relevant particulars as directed, is strong evidence that the Native Title Party are unaware of any site of relevant significance on the proposed tenement.  The question posed by Section 237(b) is whether an area or site of particular significance is likely (or more properly “is not likely”) to be interfered with by the exercise of the rights conferred by a mining tenement.  That question cannot be answered by an assertion that, within or in the vicinity of a proposed tenement where there are no known areas or sites of relevant particular significance, some might exist.  Unless there is evidence of the existence of a relevant site there is no call for an inquiry under Section 237(b).  The relevant question under Section 237(c) is whether the exercise of the rights conferred by the proposed tenement is likely to involve major disturbance from the viewpoint of the community generally, taking into account the concerns of the Aboriginal community. (Dann v Western Australia (1997) 74 FCR 391). It is not to be answered by the expert opinion of a geologist, no matter how well qualified in his field, as to what disturbance may result, but by the circumstances and evidence adduced.

   Pearl Egan deposes that she is an elder traditionally recognised as speaking for and knowing the sites and stories of “the area around the Badgeradda Ranges” known as “Wiyarl” which, she says, extends from a place she refers to as the Wiyarl out-camp approximately 10 kilometres south of the proposed tenement, north to Muggon.  She refers to the proposed tenement as the “Exploration Area”.  She refers to there being “sites all along from Yallalong to Muggon Station” but gives no evidence as to their location or the boundaries of the area known as Wiyarl.  She refers to a sacred place on the Badgeradda Range, being a rock which sticks out of the hill and looks like a wagon wheel to which the people are not allowed to go.  She says she knows where this place is, but makes no attempt to better define its location.  She states that “the sites in that country are very important”. 

   She also refers to a site west of the Range which is also a sacred place called “Nyirimuga” to which the people are not allowed to go, being a salt encrusted claypan which, she says, is likely to be within the Exploration Area.  She testifies that she could not, however, say that it was within that area from looking at “the map” and that you “need to go out there to see the country to be able to tell”.  This suggests that she knows the boundaries of the proposed tenement on the ground and could identify the sites as being within or without the same.  There seems to be no reason why this was not done earlier, the objection having been lodged on 1 March 2000.  She testifies that the people from Wiyarl would hunt, camp and look after the country all around the Wiyarl out-camp 10 kilometres south of “the Exploration Area” and that we “still go back to visit, look after the country and tell the young ones stories about that place and all around there”. 

   Annexed to her affidavit are two maps marked respectively “A” and “B” which she says she has seen.  She says that she cannot read or write but had places on “the map” read and pointed out to her.  She says that the map shows the Badgeradda Range to be within the Exploration Area and says that people going onto the Exploration Area need to keep away from the sacred rock earlier referred to.  She testifies that “it looks like” two other places “Miilga” and “Marabundhu” are within the Exploration Area and that there are lots of different foods in the area and that people still go there to hunt, camp and visit.  She gives no indication of the nature or significance of the two named places.  She alleges that if there are drilling trucks on the Exploration Area the people would not be able to use it to get food, would be too shy to go there and that the trucks would scare away the animals, would drive over plants and could make the country sick. 

   The map “A” annexed to Mrs Egan’s affidavit is a bad photocopy of a tengraph map issued by the Department of Minerals and Energy dated 19 October 2000.  It fails to show in any recognisable form of the boundaries of the proposed tenement.  It covers a slightly different overall area to that covered by the said map produced by the State and contains other marked lines, possibly fence lines.  It also shows, to the south of what, in my view, would be the location of the proposed tenement on that map and in fairly close proximity thereto, an exploration licence E09/884, which may or may not abut the south boundary of the proposed tenement, its boundaries also being unclear.  Map “B” is a photocopy of another map.  Its source is not disclosed and it has no indication as to whether or not it is to scale.  It clearly is not on the same scale as tengraph map “A”. 

   It shows the outline of the proposed tenement on the extreme right side of the map page with the notation “ERADDA RANGE” printed on it by its south-eastern corner.  I accept that to be a reference to the Badgeradda Range and that the beginning of the word has been lost in photocopying.  That map does not show, in any recognisable form, the land covered by the Badgeradda Range and in particular that it departs to the east from the proposed tenement fairly close to its southern border and then travels east through E09/864 and does not return to the land of the proposed tenement.  That map has various places marked on it, both within and about the boundaries of the proposed tenement, including claypans, bores, dams, tanks, wells and other notations.  Most of these would appear to be obvious points of reference to identify the approximate location of other sites on the proposed tenement.  However, nowhere on that map is there any indication of the location of any of the sites said to be or to be likely to be on the proposed tenement.  Significantly, the claypan to which Mrs Egan refers as being a sacred place and the two other places, “Miilga” and “Marabundhu” to which she refers are also not on it, at least under those names.  Mrs Egan testifies to being recognised as an elder knowing the sites of the area. 

   In my view it is reasonable to expect that if she believes any of the sites to which she refers to be within the proposed tenement she would and could give some indication thereof on one or other of the two maps or by description in her affidavit.  It is significant that the only location she gives the sacred rock that it is on Badgeradda Range.  It is quite possible from the wording of her affidavit that she has assumed the Badgeradda Range to cover the whole or a larger part of the proposed tenement than it, in fact, does.  Her affidavit is also significant in that, although she claims to hunt and camp etc on the “Exploration Area whenever we get the chance”, and speaks of the food, bush medicine and game on it, thereby indicating knowledge of its location, she maintains that she needs to go on to the land to identify the location of important sites on the same area.  It is, however, also significant that there has been no challenge to her evidence of use of the Exploration Area to hunt, camp, visit and look after that country from time to time.

1. The affidavit evidence of Clarrie Whitehurst is, in the main, very similar to that of Pearl Egan.  He also refers to the proposed tenement as the “Exploration Area”.  He testifies to be an elder recognised for knowing the sites and traditional stories of the area around the Badgeradda Range.  Like Pearl Egan, he testifies he was born and reared in the Wiyarl out-camp about 10 kilometres south of the proposed tenement.  He asserts there to be lots of sites and secret places in the Badgeradda Range/Wiyarl area.  He speaks of a story about a hill near Wiyarl where you can hear a water snake roaring, of corroborees at Wiyarl and of a sacred place with a funny shaped rock in the Badgeradda Range from which the people have been told to stay away.  He does not assert, however, these areas to be on the proposed tenement, but like Pearl Egan, says that anyone going onto the Exploration Area needs to stay away from the “funny rock” place, and testifies that it is likely that this place or part of the country that you cannot go into, is located on the Exploration Area.  Like Pearl Egan, he says that he cannot tell, from looking at the maps, the location of places and needs to go to the area to do so.  There is no explanation why he has not earlier done so in accordance with the directions. 

He testifies that “that country”, which appears to include the land the subject of the proposed tenement, is very important, that the people would camp all through there and the old people would camp all through the range as well.  He testifies that near Muggon there is a place where kangaroos must be cut in a certain way and that there are lots of people buried “around” the Exploration Area and Wiyarl.  He refers to the site “Nyirimuga”, to which Pearl Egan also refers, as a sacred place to the west of Badgeradda Range to which the people are not allowed to go.  He testifies that he cannot read or write and annexes two maps “A” and “B” identical to those annexed to Mrs Egan’s affidavit.  He testifies that places on the map were read and pointed out to him and that the map shows the Badgeradda Range within the Exploration Area.  He testifies that he knows well the country to the west side of the Badgeradda Range and lists bores on it which, he says, are close to the fence line shown on the map “A” but that some are shown there with different names, pointing, by way of example, to the name “Miilga” being shown “Ilga”. 

By way of different comparison, “Miilga” was the name given by Mrs Egan to a “place” in the context of significant sites, but without mention of the bore.  Mr Whitehurst speaks of it only as a bore.  Mr Whitehurst testifies that he and other people go to the area of Wiyarl and the Exploration Area whenever they get a chance, to visit the country and sites, camp and hunt.  When there, he tells the station owner Barndon of his presence.  He also takes younger people there to teach them about “that country” and speaks of the food and medicine found there.  He expresses a view that if there is drilling on the proposed tenement the animals will be scared, the trucks will damage plant and bush food and the people will not be able to go there to hunt and collect food or medicine or to hunt goannas, emu or marlu as it will be too dangerous with the trucks around.

The maps “A” and “B” annexed to Mr Whitehurst’s affidavit are each photocopies.  Map “A” is a little clearer than map “A” annexed to Mrs Egan’s affidavit.  The boundaries of the proposed tenement can be identified, but only by comparing that map with the map produced by the State referred to above.  Map “B” suffers from the same deficiencies as map “B” annexed to Mrs Egan’s affidavit.  The State map and the maps marked “A” show that each of the pastoral leases of Yallalong and Muggon cover a much larger area than that of the proposed tenement and extend beyond it in every direction.  Consequently, the references by the witnesses to “Muggon” and “Yallalong” are not necessarily references to land the subject of the proposed tenement.  I am also not satisfied that Mr Whitehurst’s understanding of the map has correctly orientated him in that he seems to assume the Badgeradda Range is significantly within the Exploration Area which might well have led to his conclusion that the sacred rock might be on the land the subject of the proposed tenement.  That may or may not be so. 

I am, however, satisfied from the map produced by the State in connection with the preliminary issue of jurisdiction earlier determined, that Mr Whitehurst’s references to bores along the fence line refers to a fence line which runs through and beyond the proposed tenement from north to south through both Muggon and Yallalong Stations.  It does not show as many bores along that fence line as referred to by Mr Whitehurst, but does show two bores named by him.  What concerns me about Mr Whitehurst’s evidence is that although he is recognised as “knowing the sites around the Badgeradda Range”, is familiar with the bores along the fence line that traverses the proposed tenement from north to south, claims to hunt and camp all through the country of the Badgeradda Range including the Exploration Area and refers to the Exploration Area as if he is aware of its location, he fails to identify the location or approximate location on the map or by description of any site of particular or other significance said to be, in fact, on it.

1. I find the evidence of both Mrs Egan and Mr Whitehurst to be inadequate to establish the existence of any area or site of relevant particular significance on the land the subject of the proposed tenement.  I accept, however, their unchallenged evidence that the people visit the Wiyarl and the proposed tenement land when the opportunity arises, camp and hunt there and that Mr Whitehurst takes younger people there to teach them about the country.  I accept also that they gather bush food and medicine from the proposed tenement land.  I am not satisfied that either witness is aware of the boundaries of the proposed tenement but I am satisfied that Mr Whitehurst is familiar generally with the land the subject thereof.  I am satisfied that the activities of which he and Mrs Egan speak are social activities of the holders of native title within the meaning of Section 237(a) and, having regard to the rights that may be exercised by the grant, am not satisfied that they are not likely to be interfered with directly by the proposed grant.

1. On 26 October 2000, leave was given to the Native Title Party to provide on or before 2 November 2000, any further map or evidence of relevant sites on which it wished to rely.  On 1 November 2000, a further affidavit by Michael Vere Robinson was filed in response to that leave.  Mr Robinson deposes to going to the land the subject of the proposed tenement with Mrs Egan and Mr Whitehurst.  The affidavit in my opinion provides evidence of the strong connection of both witnesses with the land and of various named locations but does not provide acceptable evidence as to the existence of sites of particular significance within the meaning of Section 237(b).

Determination

I find that I am not satisfied on the evidence that the grant of exploration licence E09/980 is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land the subject of the proposed grant and that the grant of such exploration licence is not an act which attracts the expedited procedure.

Hon EM Franklyn QC
Deputy President

18 May 2001