Walley v Western Australia
[2002] NNTTA 24
•8 March 2002
Reported at (2002) 169 FLR 437
NATIONAL NATIVE TITLE TRIBUNAL
Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WO01/179); Robin Boddington and Others on behalf of the Wajarri Elders (WO01/180)/Western Australia/Giralia Resources NL, [2002] NNTTA 24 (8 March 2002)
Application Nos: WO01/179 & WO01/180
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Kevin Peter Walley and Others on behalf of the Ngoonoru Wadjari People (WO01/179)
and
Robin Boddington and Others on behalf of the Wajarri Elders (WO01/180) (Native Title Parties)
- and -
The State of Western Australia (Government Party)
- and –
Giralia Resources NL (Grantee Party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 8 March 2002
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – predictive assessment to be made about likely interference or disturbance – intention of grantee party relevant – no onus of proof – meaning of interfere directly – whether both physical and non-physical interference covered in s 237(a) – proposed remedial work relevant to major disturbance – nature of an exploration licence – likely interference with the carrying on of community or social activities – interference with sites of particular significance unlikely – major disturbance to land unlikely – act which does not attract the expedited procedure.
Legislation: Native Title Act 1993 (Cth), ss 151, 237
Aboriginal Heritage Act 1972 (WA), s 16, 17, 18, 62
Mining Act 1978 (WA), ss 8, 20(5), 23, 24, 24A, 25, 26, 40-56A, 56C-70, 75(7),
Mining Regulations 1981, Regulations 20, 23AB
Cases: Smith & Ors v CRA Exploration Pty Ltd & Others (1996) 133 FLR 251
Ward v Western Australia (1996) 69 FCR 208
Cheinmora v Striker (1996) 142 ALR 21
Dann v Western Australia (1997) 74 FCR 391
Western Australia v Smith (2000) 163 FLR 32, NNTT WO99/511, Hon E M Franklyn QC, 23 June 2000
Smith v Western Australia (2001) 108 FCR 442
Little v Western Australia [2001] FCA 1706
Irruntyju-Papulankutja (1996) 1 AILR 222, NNTT WO95/7, Hon P Seaman QC, 6 October 1995
Ben Ward & Ors (Miriuwung-Gajerrong People)/Western Australia/Australian United Gold NL, NNTT WO95/11, Hon C J Sumner, 18 September 1996
Jack Dann & Ors/Western Australia/GPA Distributors, NNTT WO95/19, The Hon C J Sumner, 10 June 1997
Western Australia/Winnie McHenry (Noongar People), NNTT WO98/125, Hon E M Franklyn QC, 28 July 1999
Leone Velickovic/Western Australia/Royce William Allen, NNTT WO00/184, Hon E M Franklyn QC, 10 November 2000
Leonne Velickovic/Western Australia/Glen Allen Sinclair, NNTT WO00/299, Hon E M Franklyn QC, 31 January 2001
Violet Drury and Others (Nanda People)/Western Australia/Girali Resources NL, NNTT WO00/93, Hon E M Franklyn QC, 18 May 2001
Maureen Young (Ngadju People)/Western Australia/South Coast Metals Pty Ltd, NNTT WO00/402, Mr John Sosso, 7 June 2001
Western Australia/Roebuck Resources NL/Kim Aldus, Frank Chulung and Thelma Birch, NNTT WO99/831, 13 June 2001
Kevin Peter Walley & Ors (Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, Mr John Sosso, 17 August 2001
Evelyn Gilla & Ors(Yugunga-Nya)/Western Australia/Wayne Lawrence Allie, NNTT WO00/436, Mrs Jennifer Stuckey-Clarke, 19 December 2001
Wilma Freddie/Western Australia/Stephen Grant Povey, NNTT WO99/882, Mrs Jennifer Stuckey-Clarke, 19 December 2001
Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, Mr John Sosso, 1 February 2002
George Huddleston & Ors/Stephen Darryl Moffatt/Northern Territory, NNTT DO01/19, Mr John Sosso, 1 February 2002
Counsel for the
native title party: Ms Pamela Ellison (WO01/179) and Mr Simon Choo (WO01/180), Yamatji Land and Sea Council
Representative of the
native title party: Mr Cedric Davies, Yamatji Land and Sea Council
Representative of the
Government party: Mr Phil Boyland, Department of Mineral & Petroleum Resources
Solicitor for the
Government party: Crown Solicitor
Representative of the
grantee party: Mr Dennis Hawtin
REASONS FOR DETERMINATION
Background
On 4 April 2001, pursuant to s 29 of the Native Title Act 1993 (Cth) (‘the Act’), the State of Western Australia (‘the Government party’) advised its intention to do a future act, namely to grant exploration licence 51/916 (‘the exploration licence’) to Giralia Resources NL (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 207.58 square kilometres located 46 km north of Cue, in the Shire of Cue (centroid - latitude 27o 00 minutes, longitude 117o 51 minutes). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
On 30 July 2001, Kevin Peter Walley and Others on behalf of Ngoonooru Wadjari People (‘a native title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure. This native title party’s Application for Determination of Native Title (WC00/12) was registered by the Tribunal on 20 June 2001. The area of the exploration licence is situated on this claim area.
On 30 July 2001, Robin Boddington and Others on behalf of the Wajarri Elders (‘a native title party’) lodged with the Tribunal an objection to the statement that the grant of the exploration licence attracted the expedited procedure. This native title party’s Application for Determination of Native Title (WC01/3) was registered by the Tribunal on 9 July 2001. The area of the exploration licence is situated on this claim area.
The Tribunal accepted the objection applications on 30 August 2001.
In accordance with its normal Procedures under the Right to Negotiate Scheme, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. Following receipt of this material, the grantee party was given time to consider whether to request an oral hearing and seek leave to cross-examine witnesses but decided that it did not wish to do so. The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the Government party. The other parties were content for a determination to be made on the papers and I have decided that I can adequately deal with the matter in that way (s 151 NTA).
The objection applications (para 7) asserted that the s 29 notice did not meet the requirements of the Act. This issue was not pursued further by the native title parties and no evidence was produced to support their assertion. I am satisfied that the Tribunal has jurisdiction to determine the matter.
Legal Principles
Section 237 of the Act sets out the circumstances in which the expedited procedure is attracted.
‘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.’
This section was amended with effect from 30 September 1998. Since then the Federal Court and Tribunal have clarified its interpretation and application in a number of matters. Based on these decisions the relevant legal principles can be summarised as follows.
General: The section now requires the Tribunal to make a predictive assessment and look at what is likely to occur (Western Australia v Smith (2000) 163 FLR 32, NNTT WO99/511, Hon E M Franklyn QC, 23 June 2000); Smith v Western Australia (2001) 108 FCR 442. In Smith French J said at 450[23]:
‘The State of Western Australia asserts in its notice of contention that the Tribunal erred in law in applying an interpretation of the word "likely" in s 237(a) as referring to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. It was submitted that the amendment to s 237 reflected a legislative intention to require a predictive assessment of the effects of the proposed future act in accordance with the approach taken by Carr J in the Ward case, rather than that adopted by the Full Court in Dann. In my opinion that it is the plain intention behind the amendments to s 237 and that intention is effected by the language that has been used. The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term "likely" in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such a judgment would potentially permit, without benefit of any negotiation, quite significant risks (of that interference or major disturbance) to be incurred. To put it crudely and quantitatively, on that construction a forty nine per cent chance of interference or major disturbance flowing from the act proposed would keep it within the realm of the expedited procedure. Consistently with the objects of the Act, the word "likely" requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.’
This approach was endorsed by RD Nicholson J in Little v Western Australia [2001] FCA 1706 at [68]-[72].
Intentions of the grantee party: The adoption of a predictive assessment approach means that evidence of a grantee party’s intentions may be relevant. The relevance and weight to be given to such evidence will depend on the circumstances of the case. (Smith (Franklyn DP) at 51 [35]); Kevin Peter Walley & Ors (Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, Mr John Sosso, 17 August 2001 at [14]-[19]; Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, Mr John Sosso, 1 February 2002 at [25]-[32]. The weight given to it may be negligible. On the other hand the evidence may be clear that the expressed intention will in fact be carried out (Smith (Franklyn DP) at 51 (35)). The intention of the grantee party in relation to the protection of sites of particular significance may be relevant under s 237 (b) (Moses Silver (DO01/13) at [122]).
The most important evidence will be the legislation regulations and conditions which govern the grant of the tenement under the Mining Act and any other legislation which proscribes or limits the way in which the rights granted may be exercised. In the absence of evidence of a grantee party’s intentions, the question of likelihood must be assessed by reference to the applicable regulatory regime on the basis that the rights given will be exercised to the full (Walley (WO00/427) at [19]; Moses Silver (DO01/13) at [30]).
No onus of proof: There is no onus of proof imposed on any party and the Tribunal is required to adopt the commonsense approach to the receipt of evidence explained by Carr J in Ward v Western Australia (1996) 69 FCR 208 (at 215-218). This means that the Tribunal may satisfy itself by its own inquiries on a particular issue (but is not obliged to) or the issue may be resolved by evidence or cross-examination of the opposing party. It also means that if the facts of a particular issue are peculiarly within the knowledge of a party and no evidence is tendered by that party, an adverse inference may be drawn by the Tribunal.
Presumption of regularity: Unless there is evidence to the contrary the Tribunal will act on the basis that the Government will exercise its powers including making discretionary decisions properly and in accordance with the law; and that a grantee party will not act contrary to the law and regulatory regime including conditions imposed which governs the exercise of rights under the grant (Smith (Franklyn DP) at 51-52 [37]) Ward v Western Australia (1996) 69 FCR 208 (Carr J) at 228 and 230); (Little at [76]-77]).
Direct interference (s 237(a)): What constitutes direct interference was explained by French J in Smith (at 451 [26]-[27]):
‘…, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.
The evaluation is contextual. The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial. … To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.’
The existence of prior mining or pastoral activities which in the past have or which currently affect community or social activities may be taken into account in assessing whether the grant of mining tenements is likely to further affect such activities so as to constitute direct interference with them (Leonne Velickovic/Western Australia/Glen Allen Sinclair, NNTT WO00/299, The Hon E M Franklyn QC, 31 January 2001 at [13] (mining tenement); George Huddleston & Ors/Stephen Darryl Moffatt/Northern Territory, NNTT DO01/19, Mr John Sosso, 1 February 2002 at [44] (pastoral activities).
Carrying on of community or social activities (s 237(a)): The question of whether this paragraph encompasses both physical and non-physical interference has been dealt with in different ways by different Members of the Tribunal. Deputy President Franklyn in Smith (at 45 [21-22]) and Member Stuckey-Clarke (Western Australia/Roebuck Resources NL/Kim Aldus, Frank Chulung and Thelma Birch, NNTT WO99/831, 13 June 2001 at 14-16 [21-23]) are of the view that there must be a likelihood of direct interference with the physical aspects of the carrying on of community or social activities of the native title holder. Member Sosso takes a different view which he has explained in Moses Silver, Ishmael Andrews & Sammy Bulabul/Ashton Exploration Australia Pty Ltd/Northern Territory, NNTT DO01/13, Mr John Sosso, 1 February 2002 (at [50]-[62]):
‘[50] Prior to French J’s decision in Smith, section 237(a) had been the subject of considerable comment and analysis by the Federal Court and the Tribunal. Most of the comment related to the issue whether direct interference was limited to physical interference with community life (which term was then used in paragraph (a) or could also include spiritual and like activities. This issue was resolved by Carr J, who determined in Ward v Western Australia (1996) 69 FCR 208 that the “spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by ‘community life’” (at 223). His Honour did not think that section 237(b) “covered the field” so far as spiritual issues was concerned, and that the interference referred in paragraph (a) went beyond areas or sites of particular significance and focussed on direct interference with community life. The direct interference referred to could be unrelated to sites of significance, and His Honour gave the following extremely liberal interpretation: “the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and setting up of seismic lines on hunting grounds 10 km away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life.” Prior to the 1998 amendments to the Act this particular interpretation was not the subject of any other Federal Court analysis, and remained good law until the wording of section 237(a) was changed by the Federal Parliament.
[51] Prior to the 1998 amendments section 237(a) referred to direct interference with “community life”. Now, of course, the paragraph refers to “community or social activities”. When the Federal Government first introduced amendments to the Act in 1997 it proposed to amend section 237(a) by deleting the words “does not directly interfere with” and replace them with “is not likely to interfere directly with the physical aspects of.” The Explanatory Memorandum circulated to the Native Title Amendment Bill 1997 gave this overview of the reasons for this proposed change:
“The first change addresses a Federal Court decision (Ward v Western Australia (1996) 136 ALR 557) and provides that an act will only attract the expedited procedure in section 32 if it is not likely to (rather than ‘does not’) interfere directly with the physical aspects of community life. If there is evidence that the act will interfere with native title claimants’ physical ability to enjoy their native title rights, for example placing an impediment to hunting, fishing or gathering or the ability to conduct religious ceremonies, the expedited procedure will not apply.”
[52] Both the Federal Opposition (in April 1998) and Senator Harradine moved amendments in the Senate to this particular amendment. The later amendments were designed, inter alia, to ensure that the issue of spiritual beliefs/attachment could still be taken into account in section 237(a). On 3 July 1998 the Prime Minister introduced amendments to the Native Title Bill Amendment Bill 1997 into the House of Representatives. Amendment 42 introduced the current version of section 237(a) – House of Representatives Parliamentary Debates, 3 July 1998 at page 6038. The Supplementary Explanatory Memorandum circulated by the Prime Minister contained these comments on the amendment: “This amendment replaces item 42 in the Bill which deals with one of the criteria for determining whether the future act (such as the grant of an exploration lease or licence) attracts the expedited procedure. The effect of replacement paragraph 237(a) is that the procedure can only apply if the grant of the lease or licence is not likely to interfere directly with the carrying on of the community or social activities of native title holders.” On the same day in the House of Representatives, the Leader of the House (the Hon. P Reith MP) presented reasons why the Government did not accept amendments moved in the Senate. With respect to Opposition amendments 209 and 210 the following statement was made (at 6066): “These amendments are made to section 237 which relates to the expedited procedure. As the effect of these amendments have been modified by the House of Representatives the Senate versions have been rejected.” No other official explanation was provided for the new wording of paragraph (a).
[53] Since the 1998 amendments the Tribunal has on a number of occasions considered contentions to the effect that paragraph (a) deals with both physical and non-physical interference. The uniform response has been that spiritual issues fall outside this paragraph. This line of reasoning commenced with the determination of Deputy President Franklyn in Western Australia v Smith. It should be noted that in reaching his conclusion that paragraph (a) was limited to physical interference, Deputy President Franklyn referred (at 45-46) to the Explanatory Memorandum circulated with the Native Title Amendment Bill 1997. As noted, the comments in that Explanatory Memorandum related to a proposed amendment to paragraph (a) which differed in a significant respect from the wording of the paragraph as it now stands.
[54] In this inquiry the native title party has argued that there is only a slim difference between “community life” and “community or social activities”. Reference was made to the analysis of Professor Bartlett in Native Title in Australia (at 386). The government party referred the Tribunal to the above determination of Deputy President Franklyn. It should be noted that other commentators have indicated that while, in their opinion, the current wording of section 237(a) is broader than physical interference in community life, there is uncertainty as to whether it encompasses the position enunciated by Carr J in Ward v Western Australia - see P.Burke, ‘Evaluating the Native Title Amendment Act 1998’, (1998) 3 AILR 333.
[55] In the absence of any clear explanation provided by the Executive Government of the effect of the change in wording resulting from the 1998 amendments, the Tribunal is required to interpret the words of paragraph (a) to reflect the real intention of the Federal Parliament – Liverpool Borough Bank v Turner (1861) 30 LJ Ch 379.
[56] The first matter that is clear is that paragraph (a) is now focused on community or social activities. The paragraph is no longer centred on an examination of community life but rather the external manifestation of that life in the form of activities. The Macquarie Dictionary defines the noun activity as follows:
“1.The state of action; doing. 2. the quality of acting promptly; energy. 3. a specific deed or action; sphere of action: social activities.”
It is clear that some activities have a spiritual dimension, and that the doing of a future act could interfere directly with those activities. However, if it was to be contended that paragraph (a) was at issue there would have to be material before the Tribunal that the future act would be likely to have a direct physical interference with activities which in turn would impact on the spiritual dimension of those activities.
[57] As French J highlighted in Smith (at 451) any such interference “must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts that are not relevant to the carrying on of community or social activities are outside the scope of the kind of interference contemplated by the section.” As such it would not be enough if only isolated members of a community were upset about the proposed future act. There would have to be evidence that the doing of the act would be likely to substantially interfere with the community or social activities of the native title holders.
[58] In addition, the focus of the Tribunal’s inquiry is ascertaining the likely interference with activities “by virtue of their native title rights and interests caused by some physical activity in the exercise of rights given” by the future act concerned – see Deputy President Seaman Re Nyungah People (1996) 132 FLR 54 at 65. While the approach of Deputy President Seaman in restricting the inquiry into interference to community life to physical interference only was, as previously mentioned, rejected by Carr J in Ward v Western Australia, there was one important point of agreement. Carr J made this observation (at 223, 224-225): “Mr Sumner treated the expression ‘community life’ in a wide sense as including activities such as hunting, gathering and collecting of bush food and bush medicine. The respondents had no quarrel with that approach and, in my view, it was the correct one….I accept Mr Ritter’s submission that s 223 of the Act (which defines the expressions ‘native title’ and ‘native title rights and interests’) gives some indication of the breadth of community life with respect to land. For example, there is express reference to traditional laws and traditional customs which may have a connection with land.”
In short, the Tribunal’s inquiry is not directed at ascertaining the likely interference with activities per se, but, rather, those activities which are a manifestation of claimed native title rights and interests.
[59] The term “community” has been the subject of varied interpretations, depending, as it inevitably does, on the context in which that term is used. Illustrative of this principle is the Canadian case of National Council of Jewish Women v North York (1961) 30 DLR (2d) 402, where the following observations were made by Porter CJO (at 404):
”The term ‘community’ has been applied in a variety of ways. It has been used to apply to the quality of holding goods in common; to society or the social state where life is in association with others; to a body of individuals having common or equal rank; to those members of a civil community, who have certain circumstances of nativity, religion or pursuit common to them, such as religious communities; to a socialistic or communist society; and to a body of persons living in the same locality, ‘those little communities which we express by the term neighbourhood’.”
However, when considering the term “community” in the context of the Act an appropriate starting point are the comments of Deputy President Sumner in Re Cheinmora (1996) 129 FLR 223 (at 227): “there is not an agreed general concept of community amongst anthropologists but that each case has to be examined in context. There could be a residential community, a localised community, or a community of elders. A community is not always a group of people living in a particular locality.” See also Smith v CRA Exploration Pty Ltd (1996) 133 FLR 251 at 256.
Reference can also be made to the following observations of Merkel J in Shaw v Wolf (1998) 83 FCR 113 (at 122): “Community, like identity is a social construct. A community may be a human settlement within a particular locality, a local social system, comprising a set of relationships that take place wholly or mostly within a locality, or it may embrace a type of relationship between geographically dispersed individuals having some common sense of identity.” See also the Report of the Queensland Land Tribunal into Aboriginal Land Claims to Mungkan Kandju National Park and Unallocated State Land near Lochinvar Pastoral Holding, May 2001 Chairperson Neate, Members Martin and Webster at pp 52-53.
Consequently when the term “community activities” is used in paragraph (a) it is not necessarily limited to the activities of a particular residential or localised community – see Hollow v State Planning Authority (1980) 45 LGRA 45 and R v Liquor Commission of NT; Ex p Pitjantjatjara Council Inc (1984) 31 NTR 13.
Regard should also be had to the comments of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 where His Honour said (at 61): “But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.” As these comments of Brennan J highlight, while native title is by its very nature a communal concept – see Risk v Native Title Tribunal [2000] FCA 1589 and Tilmouth v Northern Territory (2001) 109 FCR 240 – native title holders do not necessarily have to reside in a particular locality.
As native title is communal, if evidence is adduced which is not rooted in the collective experiences of a geographically localised group of persons, then material would need to be presented to identify these individuals as a community and then to demonstrate the native title dimensions of this community of persons.
[60] The adjective “social” is given the following explanation in the Macquarie Dictionary:
“1.pertaining to, devoted to, or characterised by friendly companionship or relations; a social club … 4. living, or disposed to live, in companionship with others or in a community, rather than in isolation … 6. of or pertaining to the life and relation of human activities designed to remedy or alleviate certain unfavourable conditions of life in a community, esp. among the poor.”
The Oxford English Dictionary (2nd Edition) provides the following definitions of “social”:
“1. Capable of being associated or united to others…2.Associated, allied, combined….4.marked or characterized by mutual intercourse, friendliness or geniality; enjoyed, taken, spent etc.’ in company with others, esp. with those of a similar class or kindred interests.”
In the context of paragraph (a) if the term “social activities” is to be given a meaning that comprehends external manifestations of human behaviour that fall outside “community activities” then it would only be those social manifestations of traditional laws and customs which nevertheless are grounded in the communal concept of native title. It would not usually extend to cover activities of individuals: the focus of paragraph (a) is towards the likely impact of the future act on the activities of the native title claim group. Nevertheless in some circumstances individual or small group activities would be covered. This is the case where those activities have a wider social dimension. In other words the activity in question is not of relevance only to the individual doing the act, but has a dimension that transcends the person involved.
[61] There is a difference in the wording of paragraph (a) both before and since the 1998 amendments. The pre-1998 amendment paragraph did not have a likelihood requirement and, more importantly, was focused on the wider concept of community life. Community life, can connote, as Carr J held, all types of spiritual matters and activities. The mere thought of exploration activity could cause upset, and thus interfere with that community life. However, it would seem that the post 1998 wording of paragraph (a) is focused on the active manifestation of that community life in the form of community and social activities. While it would be artificial, in my opinion, to give an unduly restrictive interpretation to paragraph (a) to inevitably exclude any form of spiritual dimension, it would be just as clearly wrong to read into the new section 237(a) the type of conclusion reached by Carr J in Ward.
[62] To sum up, and with due respect to the native title party and Professor Bartlett, there is a very clear change in the wording of this paragraph. The difference is not slight. I am not prepared to go so far as to exclude all forms of non-physical aspects of community or social activities, but on the other hand, if there be a spiritual dimension it must be rooted in activities.’
In my opinion Member Sosso’s views are to be preferred. The one issue of doubt relates to whether the community or social activities must arise from the claimed native title rights and interests or whether any community or social activities (whether or not related to native title) are covered. It could be said that the plain and ordinary construction of the words in s 237(a) mean that any activities are covered (for instance an Aboriginal community football carnival which is a common social and community activity in some parts of Australia). On the other hand one of the main purposes of the Act is the protection of native title, the objection to the expedited procedure is part of the protective process and the reference to community or social activities occurs in that context. On balance I accept Mr Sosso’s views but believe that the issue is unlikely to be of great practical consequence. If there is interference of the kind referred to in s 237(a) it is almost certain to relate to activities connected with native title even if other unconnected activities are also affected.
Member Sosso’s views are supported by his helpful analysis of the legislative history of the amendment. Further, a history of the Tribunal’s treatment of this issue prior to the amendment supports his analysis. Prior to the decision of Carr J in Ward the Tribunal held that physical interference with the life of the community must exist under s 237(a) to deny the operation of the expedited procedure (Irruntyju-Papulankutja (1996) 1 AILR 222, NNTT WO95/7, Hon P Seaman QC, 6 October 1995). This interpretation was corrected by Carr J in Ward, during which he referred to the ‘very thought’ of certain activities upsetting community life without any physical interference with it.
Following the Ward decision the Tribunal elaborated on the correct approach to s 237(a) in Smith & Ors v CRA Exploration Pty Ltd & Others (1996) 133 FLR 251 (at 255-258). The Tribunal said that it was bound to apply the law as enunciated by the Federal Court. If the example given of possible interference with community life (ie the mere thought of certain activities) went too far then parties would need to seek clarification from the Federal Court. The example given was a guide which the Tribunal could not ignore. However, the Tribunal queried whether the fact that one or two people may be upset or worried would be sufficient to constitute direct interference with community life. It said there must be interference which is ‘direct’ in its effect on community life. That is, with the life of a body of people who as a group live in a locality or who as a group have certain customs, traditions and spiritual beliefs in common (at 255-258).
In Ben Ward & Ors (Miriuwung-Gajerrong People)/Western Australia/Australian United Gold NL, NNTT WO95/11, Hon C J Sumner, 18 September 1996 the Tribunal considered the effect of the Ward (Carr J) interpretation on its decisions. It concluded that it had clearly broadened the scope for the expedited procedure not to apply. It summarised the evidence which would suffice for a determination that the expedited procedure was not attracted:
‘Some of the common features of the evidence are an active community life in relation to the land, a special connection to and responsibility for the land, evidence that custodians could get into trouble if they do not look after the land properly, and that the community will be worried or upset by unauthorised activities on it, such that there will be fear of illness or death if it is interfered with.’
Member Sosso’s review of the legislative history reveals that the original intention of the amendment was to return to the position enunciated by Deputy President Seaman in Irruntyja-Papulankutja. However, after amendment in the Senate and further compromise this was changed to the current wording. Unfortunately the Explanatory Memorandum does not fully explain the effect of the change. I agree with Member Sosso’s analysis and his conclusion that the difference in wording is not slight. I think it is clear that Parliament did not intend to return to the Tribunal’s original interpretation. However, in my view it also wished to restrict the breadth of interference open under Carr J’s interpretation in Ward.
There can be no doubt that community or social activities which arise out of a community’s spiritual beliefs such as the conduct of ceremonies, initiations, teaching children about spiritual aspects of Aboriginal law, traditions, customs or beliefs which are part of or related to a claimants native title and connection to land are covered by s 237(a). In other religious (spiritual) contexts, people go to church to worship because of their spiritual beliefs. This no doubt constitutes a community or social activity and could clearly be interfered with in a physical way.
On the other hand I do not think that emotional or spiritual distress of some individuals which does not reflect in the manner in which community or social activities are carried out is now covered by s 237(a). There must be more than people being upset. Each case will need to be considered on its own facts, taking into account that the future act must directly cause the interference but need not be the sole cause of it and that the impact must be substantial (French J in Smith at 451 [26]).
In my view, findings of the kind cited above in Ben Ward, (WO95/11) would no longer on there own be sufficient to sustain an objection to the expedited procedure. There must be evidence relating any spiritual concerns to actual community or social activities and how they are interfered with. Spiritual beliefs which give rise to obligations to look after country may have consequences for traditional custodians under Aboriginal customary law if those obligations are not fulfilled. There may be dispute and dissension amongst a claimant group because of it. But to satisfy s 237(a), there must be evidence of the consequences of this concern or dispute or dissension for the community or social activities of members of the claim group.
Areas or sites of particular significance (s 237(b)): Areas or sites must be of special or more than ordinary significance to the native title holders (Cheinmora v Striker (1996) 142 ALR 21 at 34-35) and the particularity of the significance of them must be ‘capable of identification’ (Western Australia/Winnie McHenry (Noongar People), NNTT WO98/125, Hon E M Franklyn QC, 28 July 1999).
Major disturbance (s 237(c)): This paragraph requires the Tribunal to make a value judgement about whether there is likely to be major disturbance to land judged from the point of view of the general community but having regard to its effect on local people. The Tribunal can have regard to the local Aboriginal people’s concerns about their customs, traditions and culture (Dann v Western Australia (1997) 74 FCR 391). The native title parties contended that the disturbance may be major even if remedial work is carried out. It based that submission on comments made by the Tribunal in Dann (Jack Dann & Ors/Western Australia/GPA Distributors, NNTT WO95/19, Hon C J Sumner, 10 June 1997). These comments pre-dated the 1998 amendments and are of less relevance now. In any event I now accept that the Tribunal is entitled to take into account any rehabilitation measures in determining whether there is major disturbance involved in the doing of the act. The issue is not to be judged by reference only to the original activity. Whether the remedial work is adequate to render the disturbance less than major will depend on the facts of each case (Smith (Franklyn DP) at 47 [26]; Moses Silver, DO01/13 at 55 [138]).
The nature of an exploration licence and activities permitted by it
There was no argument with the Government party’s contention that the grant of a mining lease to an existing holder of an exploration or prospecting licence was a separate future act under the Act and that the rights conferred by the grant of a mining lease are not part of the rights conferred by an exploration licence pursuant to s 75(7) of the Mining Act 1978 (WA).
The definition of ‘mining’ in the Mining Act includes fossicking, prospecting and exploring for minerals.
Sections 56C to 70 of the Mining Act deal with exploration licences and confer on the licensee the rights and obligation specified therein. Of special relevance are the following:
‘Grant of exploration licence
57. (1) Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine.’
...
‘Term of exploration licence
61. (1) An exploration licence shall, subject to this Act, remain in force for a period of 5 years from and including the date on which it was granted, and shall then expire.
(2) Notwithstanding subsection (1) the Minister may extend the term of an exploration licence —
(a) in prescribed circumstances by —
(i) a period of one or 2 years; and
(ii) one further period of one or 2 years;
and
(b) in exceptional circumstances by a further period or periods of one year,
as to the whole or any part of the land the subject of that exploration licence on such terms and conditions as the Minister thinks fit.’
Regulation 23AB of the Mining Regulations 1981 prescribes the circumstances in which an extension can be granted and includes legitimate difficulties or delays in carrying out the exploration programme or the discovery of significant mineralisation.
‘Condition attached to exploration licence
63. Every exploration licence shall be deemed to be granted subject to the condition that the holder thereof will explore for minerals and —
(a) ...
(b) will fill in or otherwise make safe to the satisfaction of the State Mining Engineer all holes, pits, trenches and other disturbances to the surface of the land the subject of the exploration licence which are —
(i) made while exploring for minerals; and
(ii) in the opinion of the State Mining Engineer, likely to endanger the safety of any person or animal;
and
(c) will take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.’
‘Conditions for prevention or reduction of injury to land
63AA. (1) On the granting of an exploration licence, or at any subsequent time, the Minister may impose on the holder of the licence reasonable conditions for the purpose of preventing or reducing, or making good, injury to the natural surface of the land in respect of which the licence is sought or was granted, or injury to anything on the natural surface of that land or consequential damage to any other land.
(2) A condition imposed under this section may be cancelled or varied by the Minister at any time.
(3) A condition imposed in relation to a licence under this section —
(a) may, either in full or with sufficient particularity as to identify the recommendation or other source from which it derives, be endorsed on the licence, for which purpose the holder of the licence shall produce the licence on demand; and
(b) whether or not so endorsed, on notice of the imposition of the condition being given in writing to the holder of the licence shall for all purposes have effect as a condition to which the licence is subject.’
‘Rights conferred by exploration licence
66. An exploration licence, while it remains in force, authorizes the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject —
(a) to enter and re‑enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b) to explore, subject to any conditions imposed under section 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c) to excavate, extract or remove, subject to any conditions imposed under section 24, 24A or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.’
Regulation 20 of the Mining Regulations 1981 prescribes the limits referred to in s 66(c) as 1,000 tonnes, or more with the Minister’s approval.
The maximum size of an exploration licence is 70 blocks (approximately 196 square kilometres but may be greater the further north the licence is situated). The area of the licence is reduced over time as the exploration progresses (s 65).
An applicant for an exploration licence must provide to the Department of Mineral and Petroleum Resources a proposed exploration program outlining proposed activities and methods including a statement of the applicant’s technical expertise and financial resources.
Activities carried out under exploration licences range from literature searches; aeromagnetic surveying and mapping; regional geological mapping, electrical geophysical programs; rock chip sampling and assaying; and the drilling of identified targets. The explorer progresses from one to the other depending on the prospectivity indicated by earlier investigations. If earlier findings are not satisfactory, the title may be dropped and subsequent ground disturbing stages such as drilling not utilised.
The exploration licence the subject of these proceedings is to be issued mainly over pastoral lease land, which is defined as Crown land by s 8 of the Mining Act. Section 20(5) of the Mining Act deals with certain restrictions which are imposed on mining on Crown land as follows:
‘(5) Notwithstanding that any Crown land to which this subsection refers may be marked out as or be included in a mining tenement, a mining tenement or Miner's Right does not entitle the holder thereof to prospect or fossick on, explore, or mine on or under, or otherwise interfere with, any Crown land that is —
(a) for the time being under crop, or which is situated within 100 metres thereof;
(b) used as or situated within 100 metres of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(c) situated within 100 metres of any land that is in actual occupation and on which a house or other substantial building is erected;
(d) the site of or situated within 100 metres of any cemetery or burial ground;
(e) land the subject of a pastoral lease within the meaning of the Land Administration Act 1987 which is the site of, or is situated within 400 metres of the outer edge of, any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of that pastoral lease,
without the written consent of the occupier, unless the warden in relation to any land other than land referred to in paragraph (c) by order otherwise directs, but nothing in this subsection prevents such a holder from passing and repassing over any Crown land that is situated within —
(f) 100 metres of any Crown land that is —
(i) for the time being under crop;
(ii) used as a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(iii) in actual occupation and on which a house or other substantial building is erected; or
(iv) the site of any cemetery or burial ground;
or
(g)400 metres of any Crown land that is the site of any water works, race, dam, well or bore,
in order to gain access to other land (not being Crown land referred to in paragraph (f) or (g)), for the purpose of prospecting or fossicking on, exploring, mining on or under, or marking out that other land but a warden shall not make an order under this subsection unless he is satisfied that the land is bona fide required for mining purposes and he is satisfied that compensation in accordance with section 123 for all loss or damage suffered or likely to be suffered by an owner or occupier of the land has been agreed upon or otherwise determined, or is assessed and settled in accordance with this Act by the warden.’
Sections 23, 24, 24A and 25 of the Mining Act contain special provisions regulating mining on reserves (s 24) mining on marine reserves (s 24A) and on a foreshore, seabed, navigable waters or town site (s 25) and provide procedures for consent to mining to be given which depend on the type of reserve. Section 24 classifies the types of reserves. On some reserves (s 24(1)(a) & (b)) including for instance national parks (s 24(1)(b)(i)) mining can only be carried out with the written consent of the Minister responsible for the Mining Act after obtaining the concurrence of the Minister responsible for the reserve (s 24(3)). In addition no mining lease or special purpose lease can be granted unless both Houses of Parliament also consent (s 24(4)). On other categories of reserve, mining can only occur with the written consent of the Minister after consulting and obtaining the recommendation of the Minister responsible for the reserve (s 24(7)). Section 26 specifies the terms and conditions which may be imposed by the Minister when granting consent. They include making good injury to the surface of the land or anything on it and confining mining to certain depths below the surface of the land.
Nature of a prospecting licence and activities permitted by it: For the sake of completeness and for reference in future matters involving prospecting licences I note that prospecting licences (Mining Act ss 40-56A) generally confer the same rights as an exploration licence and are subject to the same conditions as exploration licences. The major differences between the two licences are that a prospecting licence is only granted:
over a maximum of 200 hectares (s 40(2));
for a term of four years with no extension (s 45(1)); and
the excavation extraction or removal of earth, soil, rock, stone, fluid or mineral bearing substances is confined to 500 tonnes or greater amounts subject to the Minister’s approval (s 48(c), Regulation 14).
Although ground disturbing activities are permitted, typical activities carried out by prospectors include literature searches; rock chip sampling and assaying; dry blowing, panning; general field reconnaissance; and metal detecting.
Conditions to be imposed on the exploration licence: The Government party intends to impose the following conditions on the grant of the exploration licence.
‘EXPLORATION LICENCE NO. 51/916
SECOND SCHEDULE
PART 2 SCHEDULE OF CONDITIONS
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.
2.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the District Mining Engineer.
3.All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration programme.
4.Unless the written approval of the District Mining Engineer is first obtained, the use of scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5.The licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6.The licensee or transferee, as the case may be, shall within thirty (30)days of receiving written notification of:-
i) the grant of the licence; or
ii) registration of a transfer introducing a new licensee.
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.The prior written consent of the Minister for Mines being obtained before commencing mining on Rabbit Proof Fence Reserve 12300.
8.Mining on a strip of land 30 metres wide with the Rabbit Proof Fence as the centre-line being restricted to below a depth of 15 metres from the natural surface.
9.No interference with Geodetic Survey Stations BEL11, K29, K27, CUE163 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
10.No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 metres from the natural surface.’
Conditions 1-4 are standard conditions which are imposed on all exploration and prospecting licences. The Government party relies on these proposed conditions and provisions of the Mining Act and Regulations to support its contentions that the interference and disturbance in s 237 is not likely to occur.
The standard conditions 1-4 and the deemed conditions in s 63 are clearly relevant and may depending on the circumstances assist in reducing the likelihood of interference and disturbance.
Part of the exploration licence is over Crown Reserve 12300 (for the purpose of The Rabbit Proof Fence). The Government party contends that the provisions relating to the consent of the Minister after obtaining the recommendation of the Minister responsible for the Reserve (ss 24(3)-24(7) Mining Act) assists as part of the regulatory regime to make direct interference with community and social activities unlikely. In this case I do not accept that the legislation relating to reserves assist the Government party. It is a Reserve limited to the purpose of The Rabbit Proof Fence and which in any event only passes through very small parts of the exploration licence. For this reason I find that proposed Condition 7 restricting mining to 15 metres below the surface of land around the fence is of little weight. Conditions 9 and 10 are also unlikely to assist the Government party as they restrict activity above ground in relation to areas which already impact on the activities of the native title party and relate to a relatively small area of the whole exploration licence.
The great majority of the exploration licence will be over pastoral leases. The Government party contended that s 20(5) of the Mining Act was relevant to s 237(a). In previous determinations the Tribunal has dealt with the limitations of relying on this section to prevent interference with community life and concluded that it was of little importance (Dann, WO95/19). This remains the case. The section is obviously not designed to protect Aboriginal interests. Where a pastoral lessee is an occupier of the land, and the native title party is not, the pastoral lessee could consent to the activities which are otherwise prohibited without consultation with or consent from the native title party. Even in circumstances where the native title party is an occupier, as it may be on an Aboriginal reserve, the Warden could permit the otherwise prohibited exploration or interference except within 100 metres of land in actual occupation and on which a home or other substantial building is erected.
The Evidence
The Government party provided evidence which establishes that:
the underlying land tenure of the proposed tenement is a combination of pastoral leases 3114/1200, 3114/776, 3114/769 and 3114/686 in addition to Crown reserve RES 12300 (for the purpose of the Rabbit Proof Fence), the Glen Beebyn Road and unallocated Crown land;
there are no Aboriginal communities on or in the vicinity of that land;
a search of the Aboriginal Sites Register revealed there are no sites registered under the provisions of the Aboriginal Heritage Act 1972; and
there will be an endorsement on the proposed grant drawing attention to the provisions of the Aboriginal Heritage Act 1972.
The difference between a condition and endorsement is that a breach of the former renders the licence liable to forfeiture but the latter does not.
The native title party in WO01/179 lodged affidavits of Nicholas Paul Green, Director of Research employed by the Yamatji Land and Sea Council (‘the YLSC’), sworn 12 December 2001 and Cedric Stileman Davies, a qualified geologist employed by YLSC, sworn on 4 December 2001.
The native title party in WO01/180 lodged affidavits of Colin Hamlett, Ike Simpson, Lance Mongoo, each a member of the claim group and affidavits of Nicholas Paul Green in similar terms to his affidavit in WO01/179 and Cedric Stileman Davies in the same terms as in WO01/179.
The affidavits from the members of the registered native title claim group are in the following terms. Colin Hamlett and Ike Simpson are named as applicants on the claim.
Affidavit of Colin Hamlett
‘I, Colin Hamlett of 18 Elder Street, Mullewa in the State of Western Australia, winja/bardani [elder], being duly sworn make oath and say as follows:
1.I am winja/bardani [elder] and an applicant of the Wajarri Elders claim. I am recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area. I know the area in and around the tenement area and have worked at Karbar and Beebyn Stations before.
2.I have seen a map, which shows the location of tenement E51/916 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. I was taught about the stories from the area by my father and other Wajarri elders. The tenement area is located in the vicinity of Wilgie Mia, the Weld Ranges and is in an area of special importance to Wajarri people. The area is important not just to Wajarris but to Aboriginal people all around the state, to Wanmalas in the desert and Maribas in the Pilbara. It is one of the most important areas in Wajarri country and the stories and the ochre from the Weld Ranges go all the way out to the Western Desert.
3.The tenement area is very good hunting country and is important for Wajarri people because it is used frequently as a hunting and camping area and a place to collect bush foods, especially by the Wajarris living in Cue. The Cue mob are always going out to get kangaroos from around Cue and including the tenement area. The tenement is close to Cue where lots of Wajarris live and has good roads going right up to and through the tenement area which makes it easy to access.
4.The tenement is also right next to Jungar Pool, which is an important place for Wajarri people and next to Wilgie Mia and the Weld Ranges which are also extremely important areas for Wajarris.
5.Within the tenement are there are guradah which is a type of tree. These are very important for Wajarri people and have lots of uses. The seeds can be crushed to make damper or straight in the roots you can find bardies, it’s a very good medicine bush as well and you can make warlanu [boomerangs] and gurndi [fighting sticks] from the branches, it grows in the tenement area.
6.There are also lots of Mulgas in the tenement area which are good for making wirrangu [spears] and warlanu.
7.Beefwood trees also grow in the tenement area and you can use those to make urndas [shields].
8.There’s a very important medicine bush called gandilangu. These are very important for Wajarri people, it’s a very good medicine bush which has lots of uses. White people use this to combat cancer. You can boil the bark and bathe people in it. It kills germs and will help people with scabies. If you have a tooth ache you can boil up the leaves and chew on those and that will make the ache go away. If you poke part of the leaf in a wart and break it off then the wart will fall away. You can bet all of these things from the tenement area.
9.The tenement area is a very good area for hunting kangaroos.
10.If there are drilling rigs in the tenement area then we would not want to go and hunt or camp there. The kangaroos would be scared away and we wouldn’t to camp there with drill rigs going or other exploration activity. The tracks cleared for an exploration activity would knock down important plants for us and it would not be safe to shoot kangaroos with other people in the area.
11.Jungar Pool and the area around it within the tenement area is an important camping and hunting area. There is always water in Jungar Pool. I have never seen that pool empty. You can catch fish in Jungar pool. There aren’t many pools like that in the area and it is a special place. Wajarris still visit and camp all around Jungar Pool, including the tenement area. The areas within the tenement area near the base of Beebynbeebynganna Hill are good for collecting bush foods, that’s where you get the emu eggs. You get the eggs in winter-time.
12.Wilgie Mia and the Weld Ranges area one of the most important places in Wajarri country.
13.Springs and soaks outside the tenement area could be affected if people drill in the tenement area and that affects the water level. This could impact upon Jungar Pool.
14.One of the largest ceremonial areas in the Wajarri area is located in the Weld Ranges. People would come from all over to corroborrees at this place, there would be people from the wanmalas in the desert and Badimias and all different Wajarri people as well as coastal people coming to the ceremonies there. They camped all around the area and including within the tenement area.
15.Years ago my brother dug up a boomerang whilst we were camping in the Weld Ranges right near the tenement area and that must have been left by one of the groups camping there. Often after ceremonies people would bury important items and it is important that these are not disturbed. If he dug one of these up then there must be lots more artifacts buried in and around the area.
16.When I was a young boy and would dig sand up in the ground, my parents or any other adults would push the pile of dirt down and stop me from digging saying that I was killing people by burying them. This is part of our traditional Wajarri beliefs. If people dig up the ground near Wilgie Mia and the Weld Ranges, then this could affect those sites and have serious effects for Wajarris and other tribes.
17.There are lots of wudajis and mundungu [spirit people] that live in the hills of the Weld Ranges. They live in the hills and the caves of the area. That’s their home. These people are little hairy men/spirits. If wudajis get upset then they upset Aboriginal people and they will make you get sick, sometimes they give people a flogging or they throw them out of bed and they’re quite cheeky and will tip water out of containers, burst water bags or put holes in water containers.
18.If there are holes drilled or bush cleared within the tenement area then wudajis and mundungu could get upset and they could cause problems for us Wajarri people but also people that are doing exploration work in the tenement area.
19.We were told by old people and we teach our young people that they need to look after country especially areas that are very important such as the Weld range area and we need to prevent these from being damaged.
20.Some Wajarri people won’t camp in the Weld Ranges by themselves or when there’s only one or two people by themselves, and will only camp there in large groups because there are so many wudajis and mundunu there.
21.One time I camped in the Weld Ranges a few years ago with other old Wajarri man and a white person, the other Wajarri man I was with kept the fire going all night and wouldn’t sleep because he was scared of the wudajis there.
22.In addition I have been informed that if the tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:
a. Reverse circulation drilling in areas of hypersaline groundwater.
b. Diamond (core) drilling.
c. The excavation of up to 1000 tonnes of material.
23.I have read the affidavit Cedric Stileman Davies dated 4 December 2001 and understand what the above activities involved.
24.I believe that the conduct of these activities within the proposed tenement area will involve a major disturbance to the land. The ground and vegetation would be disturbed by the creation of tracks through the tenement area and the drilling could disturb the Wudajis and the sites around the tenement area. The drilling could affect Jungar Pool and the water level or the bimarda in there.
25.I have seen the damage that mining activity can have on our country. I went out to an area near Yalgoo last year to check on the impact that the mining activities were having on our country. When we got there we saw dead and dying plants all the along the area where there was run off water. This water went right near the Sanford River and it would have seeped into the river. We could see a lot of dead fish just down from there. Seeing that made us angry, as our country is being damaged by these mining companies all the time.
26.When we go bush we see the damage that mining companies do everywhere, they rip up the dirt all over the place, all through the Murchison. They cut tracks everywhere, knock down trees, put dumps in the ground and don’t clean up once they’ve gone. The tracks that they grade last for years and years. You can see the tracks that mining companies make years after they’ve gone and left the area. When they make the tracks, they remove the trees and plants from there and they become eroded. When rains come they run along the tracks and this erodes it even further.
27.If people go drilling in the tenement area then that could upset the Wudajis in the area and they would then go and cause trouble.’
Affidavit of Ike Simpson
‘I, Ike Simpson of 5 O’Brian St, Mullewa in the State of Western Australia, bardanilwinja [elder], being duly sworn make oath and say as follows:
1.I am a winja [elder] recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the area around the Wilgie Mia Area.
2.I have seen a map, which shows the location of tenement E51/916 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. I am one of the winja responsible for looking after Wilgie Mia country, including, the tenement area.
3.I was born at Buguwalya Pool on Boolardy Station on 14 March 1927.
4.Wilgie Mia and the Weld Ranges are some of the most important places and areas in Wajarri country. There is a dreaming story about Wilgie Mia and the Weld Ranges. A marlu [red kangaroo] from Kalbarri was speared towards the coast, it traveled east followed hills east and went to Barluwidi out of Twin Peaks then Junyidi just out from Meeka Station, to Mt Aubury and then to the Weld Ranges at Wilgie Mia where it stopped there and that is his blood at Wilgie Mia. The Dreaming keeps going along the Weld Ranges, through to Wiluna and Warrakuna. The story connects a lot of different groups and it is important to them as well.
5.Jungar Pool is an important place that is right next to the tenement area. Lots of Wajarris go camping there and hunting around there. There’s always water in that pool and it’s a good place to camp at. When Wajarris camp there they often visit the tenement area to get some marlu, guwiyari or yalibirri [emu], or collect other bush foods, because its right next to the pool.
6.The area in and around the tenement area, including Jungar Pool, Wilgie Mia and the Weld Ranges is one of the most visited and important areas for Wajarri people.
7.There are corroborree grounds in and around the Weld Ranges, which are right next to the tenement area.
8.Wilgie Mia ochre goes all over the country, it is important because it is used for painting in corroborrees and it is still used today.
9.Wajarri people still collect the ochre from Wilgie Mia and trade it with others. The ochre is used all over the country.
10.Other groups expect Wajarri people to look after that area and would be upset if they did not look after the area. We could get into trouble if the area is not looked after.
11.There are also lots of old camps in the Weld Ranges. When the old people came down for corroborrees there they would camp all around the Weld Ranges, including the tenement area.
12.A lot of wudargis live in the hills in the area and the rockshelters there. Wudargis are little spirit people. They are cheeky fellas. If people go drilling in or around the hills in the tenement area then that could upset the wudargis, they wouldn’t want to stop there with all the noise and could cause trouble or get scared away.
13.The tenement area is a good area for hunting and collecting bush foods. It is close to Cue and lots of Wajarris go out there and around there to hunt and collect bush foods, especially those Wajarris in Cue, that mob are always out there.
14.Its good kangaroo and guwiyari [goanna] country in the tenement area, especially around the base of the hills where there is lots of shade and you can find plenty of kangaroos there. In the washaway country there is plenty of feed for the kangaroos and other animals.
15.We steal the eggs from the yalibirri from the tenement area, there are lots of these near Beebynbeebynganna Hill, which you can see on the map attached as Annexure “A”.
16.You get gurarra trees in the tenement area, you take the seeds from them and crush them up and you can eat them like that or make them into damper.
17.Coglas, which are like pears, grow in the tenement area, so do bagurda which are a long bean that you can eat raw. Walgu trees grow in the tenement area, you get the nuts off that and eat them.
18.There is a bush medicine that we call gubaru which has small black berries. You break the leaves off and boil them and use them as medicine, they are good for anything.
19.If people went drilling in the tenement area then that would interfere with Wajarris hunting out there or collecting our bush foods. The animals would get scared away and trees would get knocked down for the tracks. You can still see the tracks in the tenement area where previous mining companies have been and cleared years ago. When I was last out in the area, only a couple of weeks ago, I saw drilling tracks that were cleared years ago and cleared drill pads, where there were still no plants growing back there, and piles of dirt that the mining company had pushed up to clear the drill pads. This disturbs the land and the spirits in the country, especially in an area as important as the Weld Range area. When I saw this damage, this upset me. Some of these companies have no respect for our special places or our culture.’
Affidavit of Lance Mongoo
‘I, Lance Mongoo of Unit 8, 38 Sunset Drive, Geraldton WA, in the State of Western Australia, winja/bardani [elder], being duly sworn make oath and say as follows:
1.I am a winja/bardani [elder] on the Wajarri Elders claim. I am recognised under the traditional Wajarri laws as speaking for and knowing the sites and traditional stories of the tenement area.
2.I know the area in and around the tenement area and was born in Cue and have lived most of my life in and around Cue and the general area of the tenement. I have seen a map, which shows the location of tenement E51/916 (“the proposed tenement”). Annexed to this affidavit and marked “A” is a map showing the location of the proposed tenement. I am living in Geraldton at the moment, but I was living in Cue until last year.
3.The tenement is located in important country for Wajarri people, it is quite close to Wilgie Mia and the Weld Ranges, which have lots of sites in them and stories about them, it is also close to Jungar Pool. The tenement area is a very good place for hunting and getting bush foods as well as camping and Wajarris are always going there. The tenement area is an important area for Wajarri people.
4.I’d say there would be about 100 Wajarri people living in Cue, which is only about 40 kilometres from the tenement area. For us Cue Wajarri’s bush foods are an important part of our diet, mainly we eat kangaroo meat and other bush foods. Other meat is too expensive. Why would you want to buy meat when there are so many kangaroos around and these don’t cost anything? Kangaroos are part of our traditional diet.
5.Wajarri families in Cue go out kangaroo hunting about once every week to get enough kangaroo meat for the family to last the week. When this runs out someone else will go out and get some more. There is good hunting country around Cue.
6.I know the tenement area well and have been out there many times. It is very good hunting country and is easy to get to from Cue. During school holidays, the Cue Wajarri families will be out camping and hunting on most days. After Christmas, there will be a big mob of Wajarris going to camp in and around the tenement area and Jungar Pool. We take the kids out to teach them about the area, about the stories for the country and show them how to survive in the bush, so they can always get a feed or some water.
7.Some station owners around Cue are funny with Wajarris and they don’t like us hunting on our own country. They give us a hard time when we go out shooting. The station owners at Coodardy and Beebyn Stations, where the tenement area is located, are good to us Wajarris and they don’t try to stop us going out there. This makes the tenement area a good place for us to hunt, camp and gather bush foods.
8.When we go to the tenement area we generally go up the Burringurrah-Cue Road and do a loop from Afghan Rock or Glen Station and come back through Beebyn along the Beebyn-Karbar Road or go the in the opposite direction. It’s a good hunting area because you can get there on good roads, but once you are there you can take tracks off the side away from the main roads so it isn’t too dangerous to go shooting there.
9.Marked out on the map annexed as Annexure “A” is a copy of the main tracks that we use within the tenement track, as best I can describe it from the map.
10.You can see Jungar Pool on the map. The Jungar Pool area is an important area for Wajarri’s. There is a bimarda [water serpent] that lives in that pool. When you go to Jungar you need to throw sand into the water so that the bimarda knows who you are before you swim in there. That pool always has water in it and it’s a good place to go swimming, camping and hunting. The Wajarris at Cue go out there all the time and all through the year. It’s a good place to go swimming when it’s hot and Wajarris go out there all weekend or will camp out there as well and around there. When we go camping out there we will often go and try to get a kangaroo, or a kiwiyari [goanna] or bush turkey in the tenement area and around the base of the hills there. There are a lot of goats there too.
11.The bottom/southern half of the tenement area is good country for getting emu eggs.
12.We also get coglas and honey ants from the tenement area.
13.The Weld Range area is very important for Wajarris and also for Aboriginal people all around Australia. It is important because of Wilgie Mia and the dreaming stories about the Weld Range. The Weld Range is connected to the hills at Yalgoo and also to the hills at the west side of Wiluna. The dreaming goes out to the desert, the mob in the desert have the story about the sturt pea that comes from the Weld Ranges. Even the people at Yallatha in South Australia have a dreaming that comes from the Weld Ranges.
14.You can get good ochre from Wilgie Mia, people use it all over Australia and it gets traded across Australia. There’s a plant in Queensland, that only grows in the Weld Range, the seed must have been taken over there with ochre from the Weld Range.
15.It’s good ochre because it doesn’t burn your skin and it’s still used today in ceremonies and for dancing.
16.There are lots of Wudajis [spirit people] that live in the Weld Ranges and in the hills and caves in and around the tenement area. They would be in Beebynbeebynganna Hill too.
17.Wudajis are spirit people that live in the area and they can be cheeky if you upset or disturb them or if you go too close to where they’re living.
18.A while ago when we were camped near the tenement area. We were camping there with my wife and 3 boys. We had about 30 kangaroo tails on the bonnet, 3 pots of sheep tripe on the coals and a camp oven full of kangaroo meat on the coals as well. We went to bed that night and in the morning all of the pots with the tripe had been dragged off the coals and two of them had been emptied with their lids thrown to the side and there was only one pot of tripe left. The camp oven with the kangaroo meat it it had been picked up and turned around because the handle was in the wrong way and the lid was opened up so it as only partially covering the pot and all of the meat had been taken out from the camp oven.
19.The Wudajis must have come and taken all the meat. They do things like that sometimes, they’re very cheeky. They will take cooked meat but they mustn’t have taken the kangaroo tails because they weren’t cooked yet.
20.There were no tracks or anything around the pots, it was like something had come out of thin air and taken the meat. I looked everywhere for tracks, but could not see any tracks anywhere. It would have been impossible for a fox or dingo or anything to move the camp oven off the coals, because the coals were hot all night and foxes can’t just turn around a pot like that and lift the lid half off a cast iron pot. My wife hasn’t been camping back in that place again since then, but I still go out there.
21.In addition I have been informed that if the tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:
a. Reverse circulation drilling in areas of hypersaline groundwater.
b. Diamond (core) drilling.
c. The excavation of up to 1000 tonnes of material.
22.I have read the affidavit Cedric Stileman Davies dated 4 December 2001 and understand what the above activities involve.
23.I believe that the conduct of these activities within the proposed tenement area will involve a major disturbance to the land. I have seen the damage that exploration activity can have to our country.
24.Other companies have done drilling in the tenement area before, this would be over 13 years ago, a good while ago. You can still see the tracks that they have left. In the wet, the tracks get covered with grass, but in the dry you can see the tracks no worries. Having tracks and drilling rigs going all over the place is not good for the country and the damage stays around longer the mining companies. They leave the damage for us Wajarris. There are bores and drill holes around the tenement area that have not been covered. Kiwiyarls go down these holes, because they smell the water and they slip and go straight down and then they are stuck and die. I have seen this many times. You get a torch, a mirror or a piece of glass and shine the reflection down and you can see the dead animals stuck down there. The ground and vegetation is disturbed by the creation of tracks through the tenement area and the drilling could disturb Wilgie Mia or the Wudajis and the sites around the tenement area in the Weld Ranges. The drilling could affect Jungar Pool and the water level or the bimarda in there.
25.I used to work with a drilling contractor years ago collecting samples, I have seen first hand the damage that these exploration activities can do. The drillers would leave a big mess once they’ve finished. When the water comes out they make a dam or trench for it to run off and the water can go everywhere. When the water was salty it would kill all the plants all around the rig.’
Findings in relation to WO01/180
The evidence presented by the native title party in relation to matter WO01/180 was more comprehensive than in relation to WO01/179 and I therefore propose to deal with it first.
Community or social activities (s 237(a))
There are no Aboriginal communities situated on or in the vicinity of the exploration licence. Nevertheless the direct evidence from three Wajarri Elder claimants Colin Hamlett, Ike Simpson and Lance Mongoo establishes the existence of substantial community and social activity of a physical kind on the area of the exploration licence.
In summary the evidence of Mr Hamlett established that the exploration area is very good hunting country and used frequently as a hunting and camping area and a place to collect bush foods by Wajarri people, especially from the Cue area. They regularly hunt kangaroo around Cue including on the exploration licence area. On the exploration licence area there is a type of tree called guradah the seeds of which can be used in making damper. Bardies can be found on its roots. It can be used for medicinal purposes and the branches can be used to make warlanu (boomerangs) and gurndi (fighting sticks). Mulgas are common on the exploration area and are good for making wirrangu (spears) and warlanu. Beefwood trees also grow there and can be used to make urudas (shields). There is also an important bush for Wajarri people called gandilangu which has a variety of medicinal purposes. The claimants would not wish to go to the area if there are drilling rigs as the kangaroos would be scared away. They would not want to camp nearby and it would not be safe to shoot. Jungar Pool is located a few kilometres to the east of the tenement area. The areas around it, including on the area of the proposed tenement, are important for camping and hunting for the Wajarri people. Within the tenement area, near the base of Beebynbeebynganna Hill is a good area for bush food including emu eggs. The Weld Ranges (located to the north-west of the area) is one of the largest ceremonial areas in Wajarri country and when people visit from other areas, they camp in the vicinity including on the exploration licence area.
The evidence of Ike Simpson and Lance Mongoo generally supports that of Mr Hamlett. Mr Mongoo said that the tenement area is a good place for hunting, getting bush food and camping. The tenement area is an important area for Wajarri People and they are ‘always going there’. He says there are about 100 Wajarri people living in Cue, only 40 km from the area of the exploration licence. Bush food is important to them and kangaroos are part of their diet. He says that families go out once a week for kangaroo but does not specify that this is to the exploration area on each occasion. During School Holidays the Wajarri families will go out camping and hunting on most days. The children are taught about the country including around Jungar Pool and the tenement area and about stories for the country and how to survive in the bush. He says that Jungar Pool is a good place to go swimming, camping and hunting. Wajarri People go there frequently throughout the year when they hunt kangaroo and bush turkey on the exploration licence area. Emu eggs and coglas (like pears) and honey ants can also be obtained from the tenement area.
None of this evidence was contested by the other parties and I accept it. I find that the community and social activities are of such a frequency and kind that exploration is likely to interfere directly with them. The facts upon which this finding are based are similar to those in earlier matters where Deputy President Franklyn found that the evidence of regular travelling, camping and hunting for various traditional activities was sufficient to sustain an objection (Leone Velickovic/Western Australia/Royce William Allen, NNTT WO00/184, Hon E M Franklyn QC, 10 November 2000; Violet Drury and Others (Nanda People)/Western Australia/Giralia Resources NL, NNTT WO00/93, Hon E M Franklyn QC, 18 May 2001 (at [11]).
I now turn to whether there are spiritual or emotional concerns which may result in the likelihood of community or social activities being interfered with. The affidavit of Mr Green deals with this issue when he deposed:
Wajarri people believe in a creative period in the world (‘the Dreaming’) when creative beings travelled over the country and transferred the Earth from a soft and formless state. The creative beings made the features of the Earth and left spiritual powers in the land.
Aboriginal people inherited custodianship of the land and are responsible for caring for the country.
under Wajarri law, a senior Wajarri persons should open up the country before people go on to it. Someone who knows the country should talk to the spirits.
under Wajarri law there can be very serious consequences if the right person doesn’t talk to the spirits before the country is used and that there will be danger for a person going on to land without permission.
the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment is upsetting to the Wajarri community and causes distress to its members, especially when the proposed activities are located in close proximity to areas of extremely high significance, such as Wilgie Mia and the Weld Ranges.
The affidavits of the claimants support the more general evidence of Mr Green, particularly in relation to the Weld Range area. Their belief is that there are spirits in that area and in some parts of the tenement area (Beebynbeebynganna Hill) who could be upset and cause problems for Wajarri and other people if there is exploration activity on the tenement area. The evidence of Mr Green and the claimants on these issues was not contested and I accept it.
I have little doubt that if the pre-amendment law was still applicable this evidence would suffice to establish interference with community life. The facts outlined above in Ben Ward (WO95/11) are all present. Nevertheless, I do not think it is sufficient under the current provisions of this Act. There is insufficient evidence that the spiritual concerns and their consequences will interfere in a substantial way with community or social activities. Mr Hamlett says that some Wajarri people will not camp in the Weld Ranges by themselves because of the presence of spirits in them. I can infer that this reluctance to camp alone will be greater if as the claimants believe the spirits are disturbed. Despite this it is only some Wajarri people who are concerned in this way and the concern is about camping in the Weld Ranges, not on the tenement itself. Other evidence establishes that the claimants and other Aboriginal people frequent areas of the tenement and the Weld Ranges on a regular basis including for camping. I cannot conclude that the evidence of past fears about camping in the Weld Ranges because of disturbance to spirits is sufficient to demonstrate that the grant of this tenement is likely in a substantial way to interfere with community or social activities.
Areas or sites of particular significance (s 237(b))
The exploration licence will contain an endorsement (not a condition) drawing the attention of the grantee party to the provisions of the Aboriginal Heritage Act 1972 (WA). The operation of the Aboriginal Heritage Act in Western Australia can be summarised as follows. It contains provision for the protection and preservation of Aboriginal sites. Section 17 creates an offence for a person to excavate, destroy, damage, or in any way alter an Aboriginal site unless acting with the authorisation of the Registrar of Aboriginal Sites under s 16 or the consent of the Minister under s 18. Section 16 allows the Registrar on the advice of the Aboriginal Cultural Material Committee, set up to assist in the administration of the Act, to authorise the excavation of an Aboriginal site and the removal of anything on or under it. Section 18 provides for the Minister to consent to the use of land which otherwise might result in a breach of s 17. A defence to a prosecution under s 62 of the Aboriginal Heritage Act is provided for in circumstances where the person charged can prove that he did not know and could not reasonably be expected to have known that the place was a site to which the Act applies. In all cases when an exploration licence is granted the Department of Mineral and Petroleum Resources sends to the licensees a document entitled Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers. This document outlines the relevant legislation including the Aboriginal Heritage Act and contains detailed guidelines relating to consultation with the Aboriginal people including information about various methods of ensuring that there is no interference with Aboriginal sites.
Using the presumption of regularity, the Tribunal has generally found that this regulatory regime is adequate to ensure that there was not likely to be interference with sites of particular significance. In part this conclusion was based on the defence not being available to a person who interfered with a site, given the endorsement on the licence and that the Guidelines would have put them on notice of their obligations under the Aboriginal Heritage Act. This approach was recently endorsed by RD Nicholson J in Little (at [77]). In other matters, because of the number and nature of sites or because whole areas were regarded as of particular significance, the Tribunal has found that the expedited procedure was not attracted. (Wilma Freddie/Western Australia/Stephen Grant Povey, NNTT WO99/882, Mrs Jennifer Stuckey-Clarke, 19 December 2001 and Maureen Young (Ngadju People)/Western Australia/South Coast Metals Pty Ltd, NNTT WO00/402, Mr John Sosso, 7 June 2001.) (Member Sosso also found that the concept of interference is potentially of wider impact than s 17 of the Aboriginal Heritage Act.)
There are no sites in the area of the exploration licence on the Aboriginal Sites Register kept by the Government party. I accept that this does not mean that there may not be areas or sites of particular significance on the exploration licence area as the Register does not purport to be a record of all Aboriginal sites in Western Australia.
The native title party’s evidence: The evidence of Mr Hamlett is that the proposed tenement is close to Wilgie Mia, the Weld Ranges and in an area of special importance to Wajarri and other Aboriginal people. It was also next to Jungar Pool which is an important place for Wajarri People. Spirit people (wudajis and mundungu) live in the hills of the Weld Ranges. The special importance of Wilgie Mia and Weld Ranges to the native title party was endorsed by Ike Simpson. There is a red kangaroo (marlu) dreaming story associated with them. There are Corroboree grounds in and around Weld Ranges and ochre from Wilgie Mia is still used all over the country for painting in corroborees. Mr Mongoo supports the other deponents in relation to the importance of Wilgie Mia and the Weld Ranges. He also says that Jungar Pool is an important area for Wajarris where a bimarda (water serpent) lives.
Affidavit of Nicholas Green: Nicholas Paul Green is Director of Research at the Yamatji Land and Sea Council and has responsibility for anthropological research within the Wajarri Elders native title claim area. On the question of site protection he says that it is the general practice of the native title party to instruct the YLSC to lodge objections to the expedited procedure and then withdraw them if a grantee party agrees to fund and facilitate an Aboriginal heritage survey of the tenement area. He says that the native title party is concerned that grievous damage to traditional country will be caused and can only be prevented by a site survey. They believe that a site can be interfered with by exploration activities even if not located within a tenement area, but in close proximity to it. Mr Green’s opinion is that the more significant a site, the greater precautions must be taken to avoid disturbing it.
Mr Green further deposed that:
it is unlikely that the Register of all sites will be an accurate record of all sites of significance within the exploration licence area;
Wilgie Mia and the Weld Ranges are places of great significance to Wajarri people and other Aboriginal people in Western Australia;
he believes from what he has been told by other staff at YLSC that the grantee party is not willing to be involved in such an Aboriginal survey; and
Wilgie Mia is an important source of red ochre and contains evidence of substantial quarrying by hand by Aboriginal people. It is known as a place of fabulous wealth to all Aboriginal people in the general region. Wilgie Mia is a ‘protected area’ under s 19 of the Aboriginal Heritage Act and surrounded by an Aboriginal Reserve proclaimed under the Aboriginal Affairs Planning Act 1972.
My findings in relation to this evidence are that the Weld Ranges is a significant area to the native title party in accordance with its traditions and that there are sites of particular significance within them including Wilgie Mia. Jungar Pool may also be such a site. However, none of these sites are on the area of the tenement. Weld Ranges are 5-10 kilometres to the north-west of the edge of the tenement and Jungar Pool is some 2 kilometres to the east. There is no specific evidence of sites of particular significance on the tenement itself.
In these circumstances, I am of the view that the presumption of regularity applies and that the Aboriginal Heritage Act and procedures associated with its compliance described above will mean that there is not likely to be interference with sites of particular significance to the native title party. The grantee party is aware of its obligation under the Aboriginal Heritage Act, aware that there are special areas or sites near the tenement and that there may be sites on the tenement itself. It will need to take care to ensure that it does not breach the Aboriginal Heritage Act.
Mr Green says that he has been told that the grantee party is not willing to be involved in a heritage survey. This evidence is hearsay but has not been formally contested by the grantee party. Nevertheless, I am aware from the preliminary proceedings that negotiations on the conduct of a heritage survey did not result in agreement. My understanding is that one reason for this was that the costs of a survey which were to be borne by the grantee party were unacceptable to it. I did not understand the grantee party to say that it refused to conduct a survey but that it objected to the cost. I do not consider that this breakdown in negotiations is sufficient to overturn the presumption of regularity and lead to a conclusion that there is a likelihood that the Aboriginal Heritage Act will not be complied with. There is no statutory or legal obligation on a grantee party to fund or facilitate an Aboriginal heritage survey and no adverse inference can be drawn in this case from the fact that no agreement has been reached on this issue (Kevin Peter Walley & Ors (Ngoonooru Wadjari People)/Western Australia/Allan Neville Brosnan, NNTT WO00/427, Mr John Sosso, 17 August 2001 at [27]). In other cases, the lack of evidence of the grantee party’s intentions with respect to the protection of sites may be taken into account (such as where the tenement is over an area rich in sites) (Wilma Freddie, WO99/882).
Major disturbance to land or water (s 237(c))
In his affidavit Cedric Davies (a qualified geologist and employee of the YLSC) gave details of ground disturbing activities that are permitted under an exploration licence. He said that reverse circulation drilling in areas of hypersaline groundwater, diamond (core) drilling and the excavation of up to 1,000 tonnes of material is permitted. The affidavit contained photographs showing the consequences of drilling in hypersaline groundwater conditions at the Cuddingwama resources area near Cue. Vegetation withered and often died. Salt was caked on the ground. He expressed the opinion that the run-off of hypersaline groundwater and the development of access tracks associated with reverse circulation drilling waters had a major impact on the area. He said that on the assumption of a specified dry density for the material, 1,000 tonnes would equate to 500 cubic metres which would involve an excavation of 25 metres by 10 metres wide and 2 metres deep.
This or an affidavit in similar terms has been considered by the Tribunal in earlier determinations. In Violet Drury and Others (Nanda People)/Western Australia/Giralia Resources NL, NNTT WO00/93, The Hon E M Franklyn QC, 18 May 2001, the Tribunal noted that the affidavit did not address whether the nature of the lands the subject of the exploration licence or the conditions applicable or rights conferred are the same as applied to the mining tenement referred to in Mr Davies affidavit. Deputy President Franklyn went on to say (at [9]):
‘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.’
I also note that the affidavit does not make clear whether the state of the ground as described was before or after any rehabilitation required by the conditions was carried out.
In WO00/427 (Walley), Member Sosso also considered a similar affidavit and some additional contentions (repeated by the native title party in this matter) about the standard conditions imposed and contentions that the removal of 1,000 tonnes of material is likely to involve a major disturbance to land irrespective of any proposed rehabilitation. In both these matters, the Tribunal found that the grant of an exploration licence would not cause major disturbance to land or create rights which would do so. The evidence of Mr Davies (even if endorsed by some members of the claimant group) was not sufficient on its own to base a finding that the disturbance in s 237(c) is likely to occur (Evelyn Gilla & Ors(Yugunga-Nya)/Western Australia/Wayne Lawrence Allie, NNTT WO00/436, Mrs Jennifer Stuckey-Clarke, 19 December 2001 at 12-15 [42]-[49]).
In WO00/427 (Walley), Member Sosso said:
‘[57] If those contentions had been supplemented by actual evidence of objectors or evidence specific to the proposed tenement they would have been of considerable assistance to the Tribunal. As it is, however, the Tribunal has been presented with no original evidence at all. The Tribunal has not been presented with specific material relating to the area of the proposed tenement (ie. whether there are any geological, environmental or other factors that could be said pose a real risk of major disturbance should exploration activities occur), or aboriginal communities in the vicinity of the proposed tenement or the specific concerns of native title holders themselves on how the exploration activity will impact on their life, customs or traditions.
[58] In early decisions of the Tribunal, prior to the 1998 amendments but when the predictive assessment was still regarded as good law, the general approach to paragraph (c) was summed as follows:
‘The Tribunal has found in other matters that the activities generally permitted by an exploration licence with the conditions imposed are not such as to cause major disturbance by the standards of the ordinary community. That is mineral exploration is limited in its purpose and of low impact density in its disturbance to land, particularly given the wide area of land over which the grants operate.
Although in this case there are Aboriginal communities in closer proximity to the exploration licence than in other matters, I do not think that the evidence leads to the conclusion that there is likely to be major disturbance to land.’
Member Sumner, Ben Ward & Ors on behalf of the Miriuwung-Gajerrong People/Western Australia/CRA Exploration Pty Ltd, WO95/34, 29 February 1996 at page 24.
That is not to say that the Tribunal as any general rule found that exploration activities did not result in major disturbance to land or waters. For example, the Tribunal found that where a causeway was to be constructed over lakes to allow the movement of drilling equipment, this constituted a major disturbance – see Re Tjupan Peoples (1996) 134 FLR 462 at 476 per Member O’Neil. Likewise the Tribunal found that the clearing of seismic lines by bulldozers over many kilometres of State forest would constitute a major disturbance such that the grant of petroleum exploration permits did not attract the expedited procedure – see Re Nyungah People (1996) 132 FLR 54 per Deputy President Seaman.
[59] After the Full Court decision in Dann, the Tribunal in approaching its task pursuant to paragraph (c) has evaluated whether major disturbance has occurred from the viewpoint of the general community, but taking into regard its effect on local people. In that regard the concerns of Aboriginal people in the locality are important, and the Tribunal has regard to ‘matters such as community life, customs, traditions and cultural concerns.’Dann v Western Australia (1997) 74 FCR 391 at 401 per Tamberlin J.’
I adopt the findings of Deputy President Franklyn and Members Sosso and Stuckey-Clarke in relation to Mr Davies’ affidavit. I also find that there is an insufficient basis to support the native title party’s contentions in relation to s 237(c). I acknowledge that there is more direct evidence from the native title parties about their affinity to country and activities on the land than in the above matters and more evidence of concerns about exploration. However, there is very little evidence about the nature of the area of the tenement itself – whether there are any topographical, geological, environmental or other characteristics which lead to a conclusion that exploration will cause major disturbance by the standards of the general community even taking into account the views of the local Aboriginal community. The special sites identified by the claimants are not on the tenement. Although not necessary to decide the issue, it is quite possible on the evidence presented in this case that the grant of an exploration licence over the Weld Ranges (with what appear to be its special significance and features) would be likely to cause a major disturbance to them. I have also had regard to the Conditions to be imposed governing ground disturbing activities and the requirements for remedial work imposed by them and the Mining Act.
Findings in relation to WO01/179
The evidence of the Government party is the same in WO01/179 as WO01/180. The evidence of the native title party is confined to affidavits of Mr Green and Mr Davies in substantially the same terms as described above. There is no direct evidence from any of the claimants. It is clear from what I have said above that Mr Davies’ affidavit does not suffice to support the objection under s 237(c) and Mr Green’s does not do so in relation to s 237(a) and (b). Had WO01/179 been the only objection there would have been a determination that the expedited procedure is attracted.
Determination
The determination of the Tribunal is that the grant of exploration licence 51/916 to Giralia Resources NL is not an act attracting the expedited procedure.
Hon C J Sumner
Deputy President
8 March 2002
407
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