Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its members /Western Australia/William James Crocker
[2009] NNTTA 66
•26 June 2009
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation on behalf of its members /Western Australia/William James Crocker, [2009] NNTTA 66 (26 June 2009)
Application No: WO08/1195
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Wanjina-Wunggurr (Native Title) Aboriginal Corporation - WC99/11 (native title party)
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The State of Western Australia (Government party)
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William James Crocker (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Tribunal Member
Place: Perth
Date: 26 June 2009
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act directly interferes with community or social activities – whether act interferes with areas or sites of particular significance – whether there is a likelihood of major disturbance to land or waters – presumption of regularity – act attracts the expedited procedure – expedited procedure applies.
Legislation:Native Title Act1993 (Cth), ss 29, 31, 151(2), 237
Mining Act1978 (WA), ss 20(5) and 63
Aboriginal Heritage Act1972 (WA), ss 5, 17, 18 and 62
Environmental Protection Act 1986 (WA)
Land Administration Act 1997 (WA)
Cases: Banjo Wurrunmurra and Others on behalf of Bunuba Native title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/ Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon CJ Sumner, Deputy President
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea, Member
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250
Dann v Western Australia and Another [1997] FCA 332; (1997) 74 FCR 391
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Daniel O’Dea, Member
Little and Others on behalf of the Badimia People v Oriole Resources Pty Ltd [2005] FCAFC 243, (2005) 146 FCR 576
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner, Deputy President
Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007), Hon C J Sumner, Deputy President
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors on behalf of Wajarri Elders/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso, Member
Rosas v Northern Territory (2002) 169 FLR 330
Silver v Northern Territory of Australia (2002) 169 FLR 1
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Ward v Western Australia (1996) 69 FCR 208
Western Australia v Smith (2000) 163 FLR 32
Representatives
for the native Mr Robert Houston, Kimberley Land Council
title party: Ms Ania Maszkowski, Kimberley Land Council
Representatives
for theMr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Mines and Petroleum
REASONS FOR DETERMINATION
Background
On 27 August 2008, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E04/1771 (‘the tenement’) to William James Crocker (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure, that is, one that can be done without the normal negotiation required by s 31 of the Act.
The tenement comprises an area of 114.85 square kilometres located 163 kilometres north of Fitzroy Crossing in the Shire of Derby-West Kimberley. It is overlapped at 96.63 per cent by the Wanjina-Wunggurr (Native Title) Aboriginal Corporation prescribed body corporate (registered on 26 April 2007 following the determination of WC99/11 – Wanjina-Wunggurr Wilinggin on 27 August 2004). Accordingly, the native title party with respect to these proceedings is the Wanjina-Wunggurr (Native Title) Aboriginal Corporation prescribed body corporate.
On 27 December 2008, the native title party lodged with the Tribunal an objection to the statement that the grant of the tenement attracted the expedited procedure.
On 13 January 2009, Deputy President Sumner was appointed Member for the purposes of the conduct of the Inquiry. In accordance with standard practice in expedited procedure objection matters, 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. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At the preliminary conference on 27 January 2009, the grantee party advised it did not wish to negotiate any agreement with the native title party and requested the matter proceed to inquiry. One subsequent amendment to the directions was made.
The Government party lodged its contentions and evidence on 6 and 17 April 2009. The native title party lodged a statement of contentions and unsigned affidavit on 11 May 2009. The signed affidavit was filed on 29 May 2009. The grantee party indicated by telephone on 29 April 2009 that he would rely on the evidence submitted by the Government party.
At the listing hearing on 21 May 2009, the parties reported that all contentions and evidence had been lodged and requested that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. On 2 June 2009, I was appointed Member for the purposes of the conduct of the Inquiry. I am satisfied that the objection can be adequately determined on the papers (s 151(2) the Act).
Legal principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered the applicable legal principles at 439-449 [7]-[23] and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities at 449-454 [24]-[35]. I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley at 453-454 [34] have been strengthened.
Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer DoIR of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from them that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]-[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340). I also adopt the findings of Member Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1.
Contentions of the Government party
Government party documentation establishes the underlying land tenure of the tenement area to be principally pastoral lease (96.7% per cent). There is a small area of General Lease (3.4 per cent overlap).
There are no Aboriginal communities in the vicinity of the tenement area.
Searches of the DIA Register of Aboriginal Heritage Sites provided by the Government party reveal no registered Aboriginal sites under the Aboriginal Heritage Act1972 (WA) within the tenement area.
The documentation also indicates that, as of 30 March 2009, there are no active tenements within the tenement area. There have been seven ‘dead’ tenements previously granted for exploration, overlapping between 5.7 per cent and 68.6 per cent. These tenements were active between 1995 and 2007. The documentation also indicated four ‘dead’ mineral claims that were active between 1978 and 1980.
The grant of the tenement will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4). Additional conditions imposed require that the pastoral lessee be notified of the grant of the licence and of certain exploration activities (conditions 5-6).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder.
The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
The licensee’s attention is drawn to the existence of a licence for tourism granted pursuant to section 91 of the Land Administration Act 1997 and which is shown designated as FNA 5482 in TENGRAPH.
The grantee party did not provide any material of its own and chose to rely on the contentions of the Government party.
Evidence provided by the native title party
The native title party submitted the affidavits of Digby Bidd, Lucy Ward and Anne Marie Bidd, all affirmed on 27 May 2009, in the following terms:
Affidavit of Digby Bidd (‘DB Aff’):
‘I, Digby Bidd, Station Hand, of Mowanjum Community, in the State of Western Australia affirm:
1. My name is Digby Bidd. I am 47 and was born in Derby where I grew up. I now live at Mowanjum community.
2. My father and mother were both born on Beverley Springs Station and the tenement area is in my fathers and mothers’ country. My father was from Beverly Springs. My mother was from Donkey Creek.
3. Penny and I spent a lot of time at an outstation at Charnley River whilst we were growing up. Our father took us to Beverley Springs and the tenement area from here.
4. I am a senior traditional owner for the country around Beverley Springs including the tenement area. Under our Law I have authority to speak for this country through both my father and mother.
5. I have been shown a map of the application area, where William Crocker wants to explore and know this country.
Community or social activities
6. The Tenement Area falls within Ngarinyin (‘WWW’) country.
7. There is lots of bushtucker around the tenement area. You can get all kinds of bush tucker including turkey, wallaby, goanna, porcupine and emu. It’s a good place to camp.
Interference with sites of particular significance
8. There is a wanjina who lives in the cave just north of Beverley Springs and there are wanjina footprints all around this place. There are paintings in this cave.
9. Our father’s kingfisher dreaming story is just near Beverley Springs at Dillie Gorge and Julbanny Gorge, around Plain Creek.
10. There is also a story from this place about a sugar bag. Like bush honey but with smaller bees. There is a bag full of brown sugar up on the tree and you need to cut it down with a sharp knife.
Major disturbance to land or waters
11. I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.
12. It is important that people who go here know the stories for this place. The stories tell you where you can and can’t go. If you don’t know where you are going then there could be trouble. Trouble for the mining company and trouble for us, the traditional owners.
13. The mining company needs to sign an agreement with us so we can show them where they can and can’t go. This is the proper way to do things.’
Affidavit of Lucy Ward (‘LW Aff’):
‘I, Lucy Ward, Artist, of Mowanjum Community, in the State of Western Australia affirm:
1. My name is Lucy Ward. I was born in Beverley Springs and grew up in this country. I used to camp there in the tenement area just a little way north of the homestead.
2. There is a painting place in the tenement area where my grandmother and father used to paint and where I used to paint. This area around Beverley Springs was their country and they were born there too.
3. I am a senior traditional owner for the country around Beverley Springs including the tenement area. Under our Law I have authority to speak for this country. Digby Bidd also speaks for this country. Ernest Bulgitt is the next person to talk to about this country from my family.
4. I have been shown a map of the application area, where William Crocker wants to explore and know this area very well.
Community or social activities
5. The Tenement Area falls within Ngarinyin (‘WWW’) country.
6. We camp in the tenement area. Last year we went there but got stuck in the soft black sand or larara just north of the homestead so we couldn’t go to the painting place. We used to camp there in the cave where the painting place is. I want to go back there soon.
7. You can get lots of bush tucker there including goanna, bush turkey, crocodile, fish and porcupine.
8. You can get sugar or bushhoney from this area and they used to cut it open with a sharp rock to get the sugar out.
Interference with sites of particular significance
9. There is a cave between the Station and Donkey Creek Yard which is full of wanjina paintings. This is the cave where I paint, my father painted, my grandmother painted. This cave is big and people used to camp there.
10. There is a story about the camp there in the cave. A husband and wife went there and all the wanjinas were fighting and the wife lost her leg. It got chopped off.
11. There is also a sugar bag story for this country around Beverley Springs. In the story when the sugar bag is cut open with a sharp rock, it started raining.
Major disturbance to land or waters
12. I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.
13. Most of the tenement area, you can go to and have a look around. But you can’t go to certain places if you don’t the stories. The mining company needs to come and talk to me and show me where they want to go and I will tell them if they can go there.’
Affidavit of Anne Marie Bidd (‘AMB Aff’):
‘I, Anne Marie Bidd, Housewife, of Mowanjum Community, in the State of Western Australia affirm:
1. My name is Anne Marie Bidd. Most people call me Penny. I am 48 and was born in Derby where I grew up. I have five kids.
2. My father and mother were born at Beverley Springs and the tenement area is both my father and mother’s country. My father’s name was Dan Dangal and he was from Beverley Springs. He used to walk all through this country in and around the tenement area. My mother’s name was Evelyn Bidd and she was from Donkey Creek.
3. My father walked all through this country from Walcott Inlett and Munja to Beverley Springs and Charnley.
4. I spent a lot of time at an outstation at Charnley River whilst I was growing up. Our father took us to his places from here including places in the tenement area. Both my mother and my father area buried at Silent Grove, near Mt Hart Station.
5. I am a traditional owner for the country around Beverley Springs including the tenement area. Under our Law I have authority to speak for this country through both my father and mother.
6. This country is called Winyuduwa. We are called the Winyuduwa mob.
7. I have been shown a map of the application area, where William Crocker wants to explore and know this area very well.
Community or social activities
8. The Tenement Area falls within Ngarinyin (‘WWW’) country.
9. There are lots of different kinds of bushtucker around the tenement area. It is a good place to camp. The old people used to camp here all the time – it is harder now because the station doesn’t give us access.
10. There is good hunting around the tenement area. You can get turkey, goanna, porcupine and emu. You can also get bush fruit and bush vegetables from this area.
11. There are also lots of different kinds of bush medicine from this country including bush medicine for sores, coughs and toothache. Lucy Ward would be able to tell you the Ngarinyin name for these.
Interference with sites of particular significance
12. There is a wanjina who lives in the cave just near Beverley Springs and there are wanjina footprints all around the place. There are wajina paintings in this cave.
13. It is difficult for us to look after these paintings because the pastoralist doesn’t give us access. We need to go back to this country to see whether these paintings need to be renewed. Only we can do this.
14. My father’s kingfisher dreaming story is just near Beverley Springs at Dillie Gorge and Julbanny Gorge, around Plain Creek.
15. There is also a story from this place about a sugar bag. There is a bag full of brown sugar up on the tree and you need to cut it down with a sharp rock.
16. There is a blue tongue lizard story and a Possom or Windigardi story for the country around the tenement area. Stories where people change into different animals to look for their children.
17. You can find all kinds of artefacts used by the old people around Beverley Springs. You can find spearheads, sharp rocks, Spinifex that that has been bundled together.
Major disturbance to land or waters
18. I am aware of the activities which the grantee party could do on the explorations licence area under the Mining Act if they are granted the exploration licence.
19. It is important that people who go here know the stories for this place. The stories tell you where you can and can’t go. Some places are mens’ places and some places are womens’ places.
20. Bad things could happen if you don’t come and talk to the traditional owners. You could get stuck with a bad tummy or you get stuck in quick sand up there.
21. The mining company needs to talk to us first and we can tell them where they are able to go.’
The evidence is uncontested and I accept it. Mr Bidd, Ms Ward and Ms Bidd depose to be senior traditional owners with authority to speak for the tenement area. On the basis of the statements contained in the affidavits, I am satisfied that each of the deponents has the requisite authority to speak on behalf of the native title party and properly reflect the traditions and knowledge of the native title party concerning the tenement area.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment of whether, as a matter of fact, the grant of the tenement and activities undertaken pursuant to it, is likely to interfere with the community or social activities of the native title party (in the sense of there being a real chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). It is not a matter to be crudely resolved by a precise balancing of probabilities. The notion of direct interference involves an evaluative judgement that the future act is likely to be the proximate cause of the interference. The interference must be substantial, and not trivial, in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual taking account of other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned. The Tribunal has previously found that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at 454-455 [37]).
The three affidavits address the concerns the deponents have concerning the disruption of social and community activities on their country. Lucy Ward and the parents of Penny and Digby Bidd were born on Beverley Springs, very near the tenement area (LW Aff p 1), (DB Aff p 2), and (AMB Aff p 2). Lucy Ward, with grandmother and father, used to paint at a ‘painting place’ in the tenement area (LW Aff p 2). Digby and Penny visited the tenement area as children (DB Aff p 3), (AMB Aff p 4). There is bush tucker and good hunting and camping around the tenement area (DB Aff p 7) (AMB Aff paras 9, 10, 11) (LW Aff paras 7-8). Lucy Ward went out to the tenement area last year but could not camp near the ‘painting place’ because they got ‘stuck’ in the soft black sand (LW Aff p 6). Penny Bidd also deposes her grandparents are buried at Silent Grove on Mt Hart Station (AMB Aff p 4). Further, she deposes ‘the old people used to camp here all the time – it is harder now because the station doesn’t give us access.’ (AMB Aff p 9).
I must now assess whether the grant of the tenement is likely to interfere with the carrying on of the social and community activities evidenced by the native title party. The test to be applied here is the ‘real risk’ test.
The evidence of the three witnesses in this case, indicates that there has been limited contemporary use of the tenement area. All three witnesses have significant historical association with the country and, on their uncontested evidence, are traditional owners of that country. Furthermore, as members of the Wanjina Wunggurr Wilinggin group, they have been determined to be amongst those persons that hold native title over the area. The evidence given by all witnesses in relation to hunting, camping and the gathering of bush tucker, relates to the general, although unspecified, area around the tenement, as well as potentially within it. Lucy Ward is the only witness who gives firm evidence of contemporary use of the area in her reference to the abortive camping trip to ‘the painting place’ which occurred last year. There is reference in the affidavit of Anne Marie Bidd that contemporary use of the area has been frustrated by the actions of the pastoral lessee in preventing them from accessing the area. She states ‘it is difficult for us to look after these paintings because the pastoralist don’t give us access’ (AMB Aff p 13). Earlier, at paragraph 9 she said ‘the old people used to camp here all the time – it is harder now because the station doesn’t give us access.’ Clearly, there is no legal basis for the pastoralist to deny access to this area to the deponents or other members of their native title holding group, either now or prior to their determination of native title. If it had been clearly established that the lack of social and community activities in the area were attributable to any such action of the pastoralist, my approach to this matter might greatly differ. There is, in these circumstances, no further elucidation as to the consequences of the alleged denial of access by the pastoralist or, indeed, the attempts of the holders to overcome such a denial of access.
In making its predictive assessment, in light of the evidence provided by the native title party, the Tribunal must have regard to the fact that the impact on the native title party’s capacity to access the tenement area due to the grant of the proposed tenement, will be episodic, narrowly focussed within the area and temporary. Similarly, given the size of the Wanjina native title determination and the nature of the evidence given by the three witnesses as to the regional fecundity of the area of the tenement and its surrounds, I am entitled to infer that the community and social activities they refer to are, in fact, carried out over a much broader area than that of the tenement area alone. (Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso at [43]-[44]).
In this matter the evidence provided by the native title party in relation to the proposed area concerning its use for hunting, camping and the collection of bush medicine lacks specificity in relation to the nature and frequency of the activities carried out within the tenement area.
There are no communities within or near the tenement area. The Mowanjum Community where the two witnesses reside, is some 190 kilometres to the southwest of the tenement area, and Derby a little further.
The evidence provided by the native title party that the tenement area is used for hunting, camping and bush medicine lacks specificity as no information is given as to the frequency or numbers of persons involved in these activities. I find that, given the nature and extent of the community and social activities currently exercised by the native title party on the tenement area, they are not likely to be directly interfered with by the grant of the tenement and the activities carried out pursuant to it.
With respect to the native title party’s reliance on statements by Carr J in Ward v Western Australia (1996) 69 FCR 208 at 223 that the very thought of intensive exploration activities could interfere with ‘community life’. I adopt the findings of Deputy President Sumner in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.
Sites of particular significance (s 237(b))
In relation to this limb of s 237, the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. There are no sites recorded on the Register kept under the Aboriginal Heritage Act (‘AHA’) within or overlapping the tenement area, but this does not mean there may not be other sites or areas of particular significance over the area or in its vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [31]-[38], [40]-[41]. While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea, at [81]-[91]) (‘Butcher Cherel’). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance that have been found to exist.
The affidavit evidence of the native title party attests to the fact that the following areas are sites of significance within or in the vicinity of the tenement:
·A cave inhabited by a Wanjina ‘full of wanjina paintings’, located between Beverley Springs and Donkey Yard and used as a camping place (DB Aff at p 8), (AMB Aff at paras 12 and 13), (LW Aff at p 9)
·‘wanjina footprints all around’ the area of the cave (DB Aff at p 8)
·Dille Gorge/ Julbanny Gorge/ Plain Creek – as places in their ‘father’s kingfisher dreaming story’ (DB Aff at p 9), (AMB Aff at p 14)
·A ‘sugar bag’ story in the area of Dille Gorge/ Julbanny Gorge/ Plain Creek (DB Aff at p 10), (AMB Aff at p 15)
·Beverley Springs area– where ‘you can find all kinds of artefacts used by the old people around Beverley Springs. You can find spearheads, sharp rocks, spinifex that has been bundled together.’ (AMB Aff at p 17)
·‘a blue tongue lizard story and a Possom[sic] or Windigardi story for the country around the tenement area’ (AMB Aff at p 16)
·‘certain places’ on the tenement you cannot go to those who ‘don’t [know] the stories’ (LW Aff at p 13)
The evidence provided by the native title party in relation to sites is uncontested and I am satisfied that the sites referred to are of significance to the native title party in accordance with their traditional laws and customs.
However, in matters of this nature, there must be evidence of sufficient specificity to found a conclusion that there are areas of particular significance to the native title party located within the tenement area. I am prepared to accept that the cave with the Wanjina paintings is within the tenement area and that it is a site of significance to the native title party. I say that, while not being entirely clear as to where that site is located. The affidavits vary in their description of its location. Penny Bidd says it is ‘just near Beverley Springs’ (AMB Aff p 12). Lucy Ward refers to it as ‘a cave between the Station and Donkey Creek Yard’ (LW Aff at p 9). Clearly, Donkey Creek Yard is within the tenement area in its northwestern corner. However, I am unclear as to what is referred to by the word ‘the Station’. I presume it would mean the homestead. Digby Bidd describes the Wanjina caves as ‘just near Beverley Springs’ (DB Aff p 9). Only Lucy Ward specifically refers to it being in the tenement area. Be that as it may, I am prepared to assume that the cave with Wanjina paintings is within the tenement area. However, I find that all of the other sites referred to are either specifically located outside the tenement area such as the Beverley Springs, Dillie Gorge, Julbanny Gorge and Plain Creek area, or are located around the tenement area such as the kingfisher dreaming story, the sugar bag story, the Wanjina footprints and the blue tongue lizard or Windigardi story. Lucy Ward also refers to certain places within the tenement area where people should not go without knowing the stories, but she does not specify where those places are. It is reasonable to infer that one of those places would be the painting cave. I contrast the evidence adduced in this matter with that which underlay the findings in other matters in areas within the same region (Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004) Daniel O’Dea and Banjo Wurunmurra and others on behalf of Bunuba Native title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005) Hon C J Sumner (‘Banjo Wurunmurra’)). In those matters, there was evidence of a number of specifically located sites and evidence of the basis of the assertion of their particular significance to the native title party. In this matter there is no particular explanation as to why this Wanjina cave is an area of particular significance to the native title party. On the basis of my general understanding of the significance of Wanjina to the people of this area, I am prepared to infer, in the circumstances, that the cave and painting place is an area of particular significance to the native title party, albeit that I am unable to find its exact location or understand the nature of that particular significance.
I must now consider whether the presumption of regularity, the protective provisions and procedures of the AHA, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. It follows from the predictive assessment approach which must be followed that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein). In Butcher Cherel at [81]-[91], the Tribunal canvassed various determinations in which the protective provisions of the AHA were considered in light of the intentions of the grantee party in particular matters, which I adopt for the purpose of this determination. In that matter, the Tribunal found the AHA regime was likely to be effective because of the extensive evidence of the intentions of the grantee party including its intention to conduct a heritage survey. It is a matter of fact, based on consideration of the evidence in each case, whether the regulatory regime under the AHA will make interference with an area or site of particular significance unlikely, taking account of what the grantee party intends to do, including in relation to the scope of exploration activities, site protection and consultation with the native title party.
The grantee party has not provided an indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith; (2000) 163 FLR 32 at 50–51 [34]–[35]). However, there is no evidence to suggest that the grantee will not act lawfully and in accordance with the AHA.
The Tribunal, when engaging in the predictive assessment process can only take cognisance of the evidence with which it is provided. I note that in Banjo Wurrunmurra at [35] the detailed evidence adduced in relation to the particular significance of sites, is far more specific than the evidence submitted by the native title party in this matter. It is my view that the evidence in this matter does not exhibit ‘site rich’ characteristics sufficient to justify a finding that the regulatory regime will be inadequate. On the evidence in this matter there is one site of particular significance which has been identified. Knowledge of this site means that the grantee party will be unable to avail himself of the defence in s 62 of the AHA if charged with an offence under it. Although there is no specific evidence from the grantee party about its attitude to compliance with the AHA, there is no evidence to suggest that he will not act lawfully and in accordance with it. In order to ensure that he complies with the AHA it will be necessary for the grantee party to consult with the native title party to ensure that he avoids the site identified by the evidence and others which may exist. I am satisfied that the presumption of regularity is applicable in this matter and that interference with sites of particular significance from the exploration activity is unlikely.
Major disturbance to land or waters (s 237(c))
The Tribunal is required to make an evaluative judgement on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243, (2005) 146 FCR 576 at [41] - [57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The native title party contends that major disturbance would be likely to occur as a result of the activities permitted by the grant of exploration licences, and lists those potentially damaging activities as being reverse circulation drilling in areas of hypersaline ground water, diamond core drilling and the creation of drill holes, excavation of up to 1000 tonnes of material and creation of infrastructure associated with exploration activities. However, there is no evidence there will not be compliance with the Government party’s regulatory regime governing exploration activities; and the conditions imposed on the exploration licence dealing with ground disturbing activities include the standard requirement for rehabilitation of the land (standard conditions 1-4). Further, such activities properly regulated, are not likely to cause major disturbance from the perspective of the Australian community, including the Aboriginal community.
The more significant question in relation to this limb of s 237 is the issue raised by all three witnesses to the effect that, in accordance with their law, it is necessary for the grantee party to consult with them before entering that area and that if the grantee party were to fail to consult with people and talk with the native title holders, ‘bad things could happen’ (AMB Aff at p 20). The native title party, in its contentions, asserts that under the law of the native title party, ‘anyone who is not from the country included in the tenement area must ask permission before coming onto the country’ (NTP Contention 38(a)). Such consultation is said to be required from both a general perspective and from the more specific perspective of the protection of the Wanjina site in the tenement area.
The focus of the enquiry in s 237(c) is in relation to ‘major disturbance’ (see Dann v Western Australia (1997) 74 FCR 391 at 395). In evaluating major disturbance the Tribunal has accepted that it may give weight to the cultural concerns to a group of native title holders. However, the starting point and precondition of the enquiry is evidence of the physical disturbance the proposed act will have on the land and waters concerned (see Rosas v Northern Territory (2002) 169 FLR 330 at 359). In other words, cultural considerations alone cannot form the basis of a finding of major disturbance. There must be some physical disturbance as a pre condition (see Willcox J in Dann at 395). In this matter the physical disturbance to the area will be confined to the carrying out of the exploration activities under the terms of the licence granted. It has already been found that in that circumstance it is unlikely that those activities will cause major disturbance. In the absence of any other evidence of physical disturbance, the concerns expressed by the native title party in relation to their offence at the grantee party entering their land without speaking to them, is insufficient to establish that such major disturbance is likely to occur.
Determination
The determination of the Tribunal is that the grant of exploration licence E04/1771 to William James Crocker is an act which attracts the expedited procedure.
Daniel O’Dea
Member
26 June 2009
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