Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Macallum Group Limited
[2017] NNTTA 58
•19 September 2017
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation v Macallum Group Limited and Another [2017] NNTTA 58 (19 September 2017)
Application No: | WO2016/0616 |
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 (WCD2004/001)
(native title party)
- and -
Macallum Group Limited
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Ms H Shurven, Member |
Place: | Perth |
Date: | 19 September 2017 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – non-disclosure directions – the act is not an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 109, 151, 155, 237 Mining Act 1978 (WA) s 66 Aboriginal Heritage Act 1972 (WA) s 5 |
Cases: | Cheinmora v Striker Resources NL [1996] FCA 1147; (1996) ALR 21 (‘Cheinmora v Striker Resources’) Daisy Lungunan on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Nyikina Mangala v Geotech International’) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Forrest v Aruma Exploration’) Neowarra v Western Australia [2012] FCA 974 (‘Neowarra v Western Australia’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley v Western Australia’) Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208 (‘Ward v Western Australia’) Western Australia/Glen Derrick Councillor and Others on behalf of the Naaguja Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA 41 (‘Naaguja Peoples v Bayform Holdings’) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert Lands v Teck Australia’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representatives of the native title party: | Dante Mavec, Kimberley Land Council Angela Booth, Kimberley Land Council |
| Representative of the grantee party: | Janet Procak, All Mining Legal |
| Representatives of the Government party: | Emily O’Keeffe, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E04/2438 to Macallum Group Limited (Macallum Group). The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure. By including the expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licence covers approximately 120.97 square kilometres in the Shire of Derby-West Kimberley. The Wanjina-Wunggurr (Native Title) Corporation hold native title rights and interests, on behalf of members of the Wanjina-Wunggurr community (Wanjina-Wunggurr) over the whole licence area due to their determination of native title in Neowarra v Western Australia. Wanjina-Wunggurr exercised their right to lodge an objection against the State’s assertion that the expedited procedure applies, and argue the expedited procedure should not apply as interference or disturbance with one or more of the s 237 criteria is likely. Macallum Group argues the expedited procedure should apply.
If I find the expedited procedure applies, the licence can be granted without parties being required to negotiate with each other. If I find it does not apply, Macallum Group must negotiate in good faith with a view to reaching an agreement with Wanjina-Wunggurr about the proposed grant of the licence. Simply put, this means parties must negotiate with an open mind and a genuine desire to reach agreement. For the reasons outlined below, my determination is that the expedited procedure does not apply.
I must base my decision on the s 237 criteria. The issues I need to determine in relation to these criteria are:
(a)Is the grant of the licence likely to interfere directly with the community or social activities of Wanjina-Wunggurr?
(b)Is the grant of the licence likely to interfere with areas or sites of particular significance to Wanjina-Wunggurr? and
(c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
In answering these questions, I must make a predictive assessment. I look at what is likely to occur as a result of the grant and decide whether there is a real chance of interference or major disturbance, having regard to the rights conferred by the grant of the licence, the nature of the proposal and the applicable regulatory regime (see Walley v Western Australia at [8]–[9]).
Preliminary evidentiary matters
All parties provided contentions and evidence in this matter. Wanjina-Wunggurr’s evidence included the joint affidavit of Kevin Lele Dann and Robin Dann, and the affidavit of Pansy Nulgit. Mr Kevin Dann and Mr Robin Dann state they are ‘Ngarinyin determined native title holders in relation to the licence area’. Ms Nulgit states she is a ‘senior Ngarinyin elder’. I note Ngarinyin is one of three language groups that make up the cultural group recognised as Wanjina-Wunggurr in Neowarra v Western Australia. I accept Mr Kevin Dann, Mr Robin Dann and Ms Nulgit each have the authority to speak on behalf of Wanjina-Wunggurr for the licence area.
Wanjina-Wunggurr applied for non-disclosure directions under s 155 in relation to some of the affidavit material. I was satisfied of the sensitive nature of that material and, accordingly, made directions restricting the parties’ use of that information. While I have been able to consider that evidence, I refer to it specifically in this decision only to the extent I need to make my reasons clear.
Macallum Group’s contentions attach the affidavit of their legal representative, Janet Procak. In her affidavit, Ms Procak includes information about Macallum Group’s proposed exploration activities, as instructed by Mr Andrew Penketham, Manager Projects, and Mr Neal Culpan, Principal Geologist, both of Macallum Group.
I briefly note various parties have made submissions as to the nature and quality of other parties’ contentions and evidence. I do not explore these arguments in great depth, as I do not consider them to have much merit. The Tribunal, pursuant to s 109(3), is not bound by technicalities, legal forms or rules of evidence in carrying out its functions. Having considered the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151, without the need for an oral hearing. All parties indicated they were happy to proceed on the papers.
Section 237(a)
As stated in Ward v Western Australia at [26], ‘where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence’. On numerous occasions, the Tribunal has balanced a native title party’s evidence of social or community activities against a grantee party’s proposed exploration or prospecting activities and has concluded these activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
What community or social activities do Wanjina-Wunggurr undertake on the licence?
Wanjina-Wunggurr do not make any contentions in relation to s 237(a), but state they rely on the affidavit evidence ‘for its full effect’. Wanjina-Wunggurr’s reply clarifies that while their contentions focus on s 237(b), this approach ‘should not be understood as implicit concession as to any matter raised in another party’s submissions or evidence which is not addressed’.
In considering the material before me, I note some evidence broadly identifies social and community activities. For example, Mr Kevin Dann and Mr Robin Dann’s evidence provides some indication of social or community activities that occur in an area near Wagon Pass. The affidavit states:
Our family has a community called Windjingayr which is not far to the northwest of the Tenement Area, near Wagon Pass. We work as rangers and we go to the Tenement Area to do rock artwork with Melissa Marshall, who is an archaeologist. We monitor and record the rock art and protect it.
Mapping provided by parties shows Windjingayr is several kilometres to the north west of Wagon Pass, outside, though within easy commuting distance from, the licence. I note that Wagon Pass is registered with the Department of Aboriginal Affairs (DAA) as being an Aboriginal site in the north western corner of the licence, as having a restricted file and boundary, and which is categorised as an ‘Artefacts Scatter, Engraving, Painting and Mythological’ site. There are 12 more registered sites recorded within or overlapping the licence to some extent, and four ‘other heritage places’ within the licence. Eight of these 17 sites are categorised as having a boundary and site of a restricted nature. A site recorded as a ‘registered site’ on the DAA register means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (AHA). A site recorded as an ‘other heritage place’ means a place which has been assessed as not meeting s 5, or a place about which information has been received, but has not yet been assessed.
Mr Kevin Dann and Mr Robin Dann broadly describe intergenerational teaching and storytelling occurring on the licence, relating to ‘the river’, ‘the old homestead’, and ‘really tall white gum trees’. They state: ‘we take our brothers and sisters and kids out there and show them and tell them that story when we see those trees’. They also state, ‘Growing up, we’d get shown certain places where our communities lived, where people were buried’.
Wanjina-Wunggurr also make reference to burial areas located within the licence, which are marked on mapping annexed to the affidavit, one of which is said to be the site for a future ceremony related to repatriation of bones returned from overseas which were taken from the Barker Gorge area. Barker Gorge is almost in the centre of the licence, along the Napier Range which runs diagonally through the licence, and which is said to be the site of many burial places.
Mr Kevin Dann and Mr Robin Dann attest they need to protect certain areas of the licence. For example, they state:
The whole Napier Range within the Tenement Area is full of bodies and bones that we need to protect. This part of the range is just near where our camp Windjingayr is and where the old homestead used to be. Countrymen were always living and working out of there.
In her affidavit, Ms Nulgit describes digging for pure white ochre in an area inside the licence, less than five kilometres from Barker Gorge. She describes its importance in detail and says:
We use the onmorll [white ochre] for culture and dancing. We paint them kids and the adult men and women when we dance, but only if they wear the naga. Everytime we paint it we feel more powered. When we paint the kids up with the onmorll, they get calm and happy…
We will see that onmorll when we return bones to Barker Gorge this year, for the ceremony.
Nobody should take that onmorll but us.
What activities do Macallum Group intend to undertake on the licence?
I note that, upon the grant of a licence, an explorer can exercise their full suite of rights, which are set out in s 66 of the Mining Act 1978 (WA).
The State summarises Macallum Group’s material and outline they understand exploration will occur on the top of Napier Range and two historic open pit mines (Narlarla No 1 and 2) where mining has already occurred. The State’s Tengraph material shows an area called Narlarla, which is described as a shut, open pit. Ms Procak’s affidavit sets out Macallum Group’s proposed exploration activities, and a comment about past activity, as follows:
(a)exploration will occur on top of the Napier Range, proximal to the know [sic] areas of base metal mineralisation, around two historic open pit mines (Number 1 Pit and Number 2 Pit) [reference to attachment];
(b)the proposed activities within the Exploration Licence include mapping, soil sampling and rock chip sampling, of which none are expected to impact any of the Aboriginal Heritage sites;
(c)existing roads and tracks will be utilised for accessing the Exploration Licence [reference to attachment];
(d)due to the wet season impacting access it is expected that field work would be a maximum of two trips per year in the initial stages of exploration;
(e)each field trip is expected to be no more than three weeks in duration;
(f)extensive open pit mining has occurred on the Napier Range in the Number 1 and Number 2 Pit areas. The Grantee Party has provided photographs depicting the level of disturbances on these areas [reference to attachment].
Wanjina-Wunggurr contend the Tribunal should presume the full extent of rights would be exercised and submit Macallum Group’s material does not address their intentions ‘to a sufficient degree of specificity for the Tribunal to be satisfied about the Grantee Party’s intended activities over the lifetime of the proposed tenement’. They note of the assertions listed above: (b) is worded so as to include those activities, but it is not a conclusive list; and (d) is constrained in that it only applies to the initial stages of exploration. Regarding (a), Wanjina-Wunggurr assert:
· it is not apparent from the evidence or the map how close to or far from the pits the activities will be occurring;
· the initial interest area shown on Ms Procak’s map ‘corresponds to’ the area containing labels Barker Gorge and Narlarla Mine (disused) on the affidavit map of Messrs Dann;
· the evidence, inclusive of the DAA sites, shows various sites and areas of particular significance within or in the vicinity of the area of initial interest;
· Macallum Group provides no evidence that exploration activities will be conducted solely within the two Narlarla mine pits.
Macallum Group further assert:
· they will ‘notify [Wanjina-Wunggurr] prior to any exploration activity that is likely to restrict the gathering of bush tucker, medicines and hunting of game and will consult with [Wanjina-Wunggurr] on ways of minimising any disturbance’;
· they will not exclude any s 237(a) activities unless it is in an area that is unsafe (if it is unsafe they will consult with the Wanjina-Wunggurr to seek an arrangement agreeable to both parties);
· they will not restrict Wanjina-Wunggurr’s access except where safety concerns prevail.
Is the grant of the licence likely to interfere directly with the community or social activities of Wanjina-Wunggurr?
In this inquiry, I have balanced the general and limited evidence of Wanjina-Wunggurr’s community and social activities against the activities Macallum Group have indicated they intend to undertake and could undertake should they exercise the full suite of rights available to them under s 66 of the Mining Act 1978 (WA). In Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [16]), President Webb summarised the approach of the Tribunal and Federal Court, and noted ‘the level of interference with community and social activities must be substantial rather than trivial’.
I accept Wanjina-Wunggurr undertakes social or community activities, particularly protecting significant areas, intergenerational teaching and collecting white ochre, on the licence area. However, I note that the licence area is over 120 square kilometres, and the activities appear to be conducted in relatively discrete parts of the licence, albeit concentrating around sites such as burial and other sensitive areas. I consider the implications of this more fully under the examination of sites of particular significance below. In relation to social or community activities, even assuming the full suite of exploration activities are conducted, I conclude there is insufficient evidence to establish activities of Wanjina-Wunggurr are undertaken to such an extent, or in such a manner, that they are likely to be substantially and directly interfered with by Macallum Group’s activities.
Section 237(b)
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
What areas or sites of particular significance do Wanjina-Wunggurr identify on the licence?
Napier Range, including Barker Gorge
Wanjina-Wunggurr contend the evidence establishes that Napier Range and its surrounds (including Barker Gorge) is an area of particular significance to the native title holders. They state a number of features, which may themselves be sites or areas of particular significance, give the Napier Range its character of particular significance. Mr Kevin Dann and Mr Robin Dann state the Napier Range runs through the bottom of the licence area and is ‘a very significant place for us’. In explaining the significance of Napier Range, Mr Kevin Dann and Mr Robin Dann describe a dreamtime story about two dogs, rock Wanjina art (which is a story as well as a painting), other paintings, burial places and remains.
The State contend that, although the Napier Range is described as a very significant area ‘there is no basis provided for distinguishing the part of the Range within the proposed tenement area as being of particular significance compared with the rest of the Range or the Determination area’.
The State note that, to the extent that Wanjina-Wunggurr rely on any cumulative significance of all sites described, they rely on the Tribunal’s view in Nyikina Mangala v Geotech International that there can be no suggestion that the existence of a significant number of sites which do not individually meet the threshold can become a cumulative category (see [43]). However, I also note in that matter, the Tribunal stated:
In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities.
By way of summary, I note the materials provided establish that the area of the Napier Range has numerous burial sites. Their location has been described sufficiently so I know they are within the licence area and there is no doubt they are connected to the dreaming story, which runs along Napier Range. There is also evidence of nearby paintings, which are significant, and bones from that area, which were taken overseas and are to be repatriated to the area. Leaving the question of whether the whole of Napier Range is a site of significance aside for a moment, I outline the evidence provided in relation to its separate features in more detail below.
Paintings
Mr Kevin Dann and Mr Robin Dann’s affidavit states there is a very big Wanjina (painting) in a location which is sufficiently described for the purposes of this inquiry (but which I do not repeat here as it is a sensitive subject), and is where the whole Wanjina songline finishes. A photo of that Wanjina has been included (subject to non-disclosure directions). The location of the Wanjina is marked on the map annexed to the affidavit.
The affidavit also explains additional paintings exist depicting old people who drowned in a flash flood. These are marked on a map locating them near the centre of the licence, and shown in a photograph produced. They explain the prevalence of art in the area is probably because the area was a good place for camping, and state:
Each one of these paintings is important, irreplaceable. We would be upset if any of those paintings got scrubbed off. They are fading from natural causes and we do not want any mining companies coming in and making that worse.
The State contend the evidence ‘more precisely locates’ only two paintings within the licence area, and the ‘broad references’ to other paintings within the area do not provide sufficient detail. Regarding the asserted importance and irreplaceability of the paintings, the State says further information is needed to demonstrate how they stand out from other places. In their reply, Wanjina-Wunggurr regard that as a mischaracterisation of the evidence and contend specific identification of stories and characteristics of sites has been provided in the evidence.
Remains and burial areas
Mr Kevin Dann and Mr Robin Dann’s affidavit describes old ruins located at the Napier Downs homestead (shown on the map to be inside the licence area near Barker Gorge) as a ‘pretty place’. They state ‘it’s very unique for people going back there’, with reference to specific people’s births there or nearby, and various people talking about relatives being born there. The State contends this evidence is not sufficient to demonstrate more than ordinary significance.
The affidavit describes flash flooding that occurred not far from the homestead approximately ‘50 plus years’ ago which washed many old people away. It states there are some ‘very important’ tall white gum trees remaining, which were involved in the flooding event, and the bodies of ‘those old ladies who drowned’, were taken to a cave near the old mine. They state ‘if anyone touched those bones it would not be ok’. The State contend the evidence regarding the location of the white gum trees is too general. Wanjina-Wunggurr reiterate their evidence that they are located by reference to the old homestead and contend the inference can be made that they are within walking distance of both the old homestead and the cave near the old mine.
Mr Kevin Dann and Mr Robin Dann also describe three burial areas marked on the map in the vicinity of Narlarla Mine, Mt Lucy and Barker Gorge (‘there are burial sites all around Barker Gorge area’) with many people buried there in the caves. The State acknowledge these burial areas have been identified on the map annexed to the affidavit. The affidavit also states that there are bones stored on a ledge near Wombarella Creek and the State outline that specific evidence of the storage location has not been provided. I note Wombarella Creek runs through the licence area. The affidavit also states:
The whole Napier Range within the tenement area is full of bodies and bones that we need to protect’ and ‘the bones in this range are the bones of people from this country. They are our ancestors up in there, along the Napier Range and inside the Tenement area. There is a spiritual connection to the bones of the old people, and we want to look after them. Nobody should take those bones away or disturb them.
Regarding the other burial sites around Napier Range and Barker Gorge area, the State contends that specific evidence of the location has not been provided.
White ochre area
Ms Nulgit describes an area where white ochre (onmorll) is found within the licence area, located less than five kilometres from Barker George. She explains this ochre is ‘very significant’ to Wanjina people and describes a dreamtime story associated with the site about how red and white ochre represent different skin groups. She describes the positive effects of people using the white ochre for culture and dancing and says it will be used when they are returning bones to Barker Gorge during a ceremony later this year. She states ‘nobody should take that onmorll but us’.
The State assert evidence has not been provided as to why this particular ochre site stands out from other similar places in the determination area or to show its particular significance. I note Ms Nulgit provides a great deal of information about the ochre within the licence and its significance, which I do not repeat here as it is sensitive information.
Are these sites of particular significance in accordance with Wanjina-Wunggurr’s traditions?
Napier Range, including Barker Gorge
I conclude Napier Range does contain burial sites, which appear to be concentrated in certain areas, and also scattered throughout the Range. I conclude Barker Gorge, which is within the Napier Range, is a site of particular significance, given its connection with the dreaming story and burial sites. However, on the basis of the evidence before me, I do not find that the whole segment of the Napier Range which is within the licence, is a site of particular significance,
Paintings
I conclude the painting sites are sites of particular significance to Wanjina-Wunggurr, given the level of detail which has been provided about them, and their connection to the traditions and beliefs of that community. The paintings are intimately connected with stories of loss and burials, and dreamtime.
Remains and burial sites
The Tribunal has previously accepted that burial sites may be sites of particular significance notwithstanding a lack of evidence describing the specific connection between the site and the laws and customs of the native title holders (see Naaguja People v Bayform Holdings at [43]). I conclude the burial sites in this matter are sites of particular significance, again based on the level of information provided about them and their connection to Wanjina-Wunggurr’s beliefs and traditional systems.
White ochre area
I conclude the white ochre area is a site of particular significance, based on the level of information provided about that site and its importance in ceremony, which is integral to Wanjina-Wunggurr’s beliefs and traditional systems.
Is the grant of the licence likely to interfere with the sites of particular significance to Wanjina-Wunggurr?
The State’s regulatory regime
The State contend, with reference to supporting authorities, that ‘in the absence of evidence to the contrary, the Tribunal should assume that a grantee party will not act in breach of the conditions imposed on a licence or the relevant statutes and regulations’. The State asserts that any concerns of Wanjina-Wunggurr about the exploration activity or things done by other grantee parties (such as past mining) are not sufficient to overcome that assumption and that ‘there is no evidence to indicate the AHA will not adequately protect against the risk of interference, particularly given the cooperative attitude of the Grantee Party’.
Macallum Group state, ‘The Grantee Party is familiar with and understands its obligations to comply with the requirements set out in the AHA prior to conducting any exploration activities within the vicinity of an Aboriginal heritage site’ and has never been prosecuted in relation to breaches of AHA. They indicate they will report any potential Aboriginal heritage site identified during the course of its activities in compliance with the AHA. Ms Procak’s affidavit states:
I am instructed that the Grantee Party has previous exploration experience in the area and are aware that there are Aboriginal sites of significance, the Grantee Party will at all times endeavour to avoid and respect any Aboriginal sites of significance through its exploration activities’ and ‘will notify the native title party of planned work activities.
Wanjina-Wunggurr states Macallum Group’s assertions are ‘generalised’ and lacking in specificity. They assert this ‘suggests a failure to appreciate the implications of the evidence already in the Grantee Party’s hands’, and no ‘intended steps’ to address particular issues. They claim good intentions are insufficient and do not diminish the likelihood of inadvertent interference.
The State intend to impose various endorsements and conditions, and note the use of mechanised equipment for surface disturbance or excavation of costeans requires the approval of a Departmental Environmental Officer. However, it does not appear this condition requires any consultation with Wanjina-Wunggurr.
The State contends it would place a condition on the grant, by which the explorer would execute a Regional Standard Heritage Agreement (RSHA) in favour of Wanjina-Wunggurr (Native Title) Aboriginal Corporation, if requested to do so by Wanjina-Wunggurr within certain circumstances. Macallum Group have indicated they would enter into such an agreement if required. The State regard that intention of Macallum Group’s as a relevant factor and indicating ‘a willingness to consult with the [Native Title Party] and amounts to evidence of the Grantee Party’s intention with respect to the protection of sites’. The State asserts the proposed condition ‘enhances the existing regulatory regime’. In their reply, Wanjina-Wunggurr accept the principle that RSHA proposals are relevant, though explains their representative body, Kimberley Land Council, has developed a different agreement (a standard Heritage Protection Agreement for the Kimberley region, and which Wanjina-Wunggurr endorse and performs the same function as an RSHA). They note RSHAs used in other areas (which ‘do not necessarily require any consultation in relation to ‘low impact’ exploration activities’) are not endorsed by Wanjina-Wunggurr.
Barker Gorge and burial sites within Barker Gorge
Barker Gorge is a discrete area, marked clearly on mapping, and so could be avoided by Macallum Group in its exploration activities. It is in an area where there is a concentration of DAA recorded sites and so Macallum Group is on notice regarding any activities that may occur after the initial exploration phase. I do not believe it is likely that the Barker Gorge area, or burial sites within that area, are likely to be interfered with by the grant of the licence.
Paintings
Regarding the Wanjina art, Mr Kevin Dann and Mr Robin Dann’s affidavit states ‘in our culture, it would not be alright for anyone to just go in and see those Wanjina pictures. We have an understanding with the pastoralist that he can only let our family in to those areas. That is our country and we are trying to protect the art’. The State’s view is there is no real risk of interference with any significant painting sites ‘even by mere access’. My view is that because of the clear spiritual importance of these paintings, the fact their location is not disclosed to those outside the community, and their importance in relation to the deaths of members of the community, it is likely that even inadvertent interference with the paintings would lead to interference for the purposes of 237(b).
Remains and burial sites outside Barker Gorge
In relation to the remains and bones, as noted above, Mr Kevin Dann and Mr Robin Dann state they should not be disturbed. Wanjina-Wunggurr contend the area of the Napier Range and its surrounds ‘is a sensitive one under traditional law and custom’. They state:
It contains paintings which cannot be accessed without the permission of the native title holders, without causing disturbance under traditional law and custom. Due to the large number of deaths in the area in the twentieth century and the movement of remains through the action of extreme weather, there is a high likelihood that ground-disturbing activity within the tenement area, without appropriate consultation with native title holders, will physically disturb the human remains of ancestors of the native title holders.
Wanjina-Wunggurr also state the location of these burial sites are not readily identifiable by non-members of the native title party. They state there is a high volume of burial sites, particularly in the Narlarla Mine and Mt Lucy vicinity (as well as within Barker Gorge) and precise boundaries can only be identified by the native title party for various reasons.
The State’ view is there is no real risk of interference with burial sites. They note Macallum Group intends to conduct a maximum of two field work trips per year during the initial stages, to use existing tracks and to conduct activities on the previously used areas of the open pits 1 and 2. Macallum Group also state they will keep ground disturbance to a minimum. Specifically, regarding burial sites in the Narlarla Mine vicinity, the State notes Macallum Group’s activities at Narlarla Pits 1 and 2 are in areas that have been subject to extensive mining activity, and refers to the Tengraph Quick Appraisal in support. Macallum Group has stated that sites of particular significance would not be interfered with because there has already been disturbance over the area.
Wanjina-Wunggurr raise that Mr Kevin Dann and Mr Robin Dann’s affidavit notes an awareness of previous mining activity and they continue to regard the places described as sites or areas of particular significance, and so any previous disturbance, if it occurred, ‘has not been at a level or scale which has diminished the significance of the sites’. The Tribunal has held that just because an area has previously been disturbed does not mean the area has lost its traditional significance or that further disturbance would not constitute interference (see for example Forrest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]). While the Macallum Group states they will conduct low level exploration in the initial stages of the grant, there is nothing about their intentions for the later stages, or how they would avoid interference with sites of particular significance.
Due to the nature of the area, its connection to the dreamtime story and the ochre area, and the detail provided by the Wanjina-Wunggurr (which is not repeated in this decision in detail due to its sensitivity), burial sites along the Napier Range and outside of Barker Gorge) are likely to be interfered with, even by what Macallum Group categorises as low level exploration.
White ochre area
Wanjina-Wunggurr has provided evidence that there is an area of particular significance where ochre is sourced for ceremonial activities, and which will be used in ceremonies relating to repatriation of bones from overseas which were taken from the Barker Gorge area. The ceremonial activities, past and present, have been explained and I am confident in concluding that should Macallum Group inadvertently interfere with the area which is the source of the ochre, that would be a significant disruption and interference with the traditions of the Wanjina-Wunggurr community.
Conclusion
Given that there is likely to be interference with sites of particular significance for the purposes of s 237(b), notwithstanding the State’s regulatory regime, I conclude the expedited procedure should not apply to this act.
Section 237(c)
Will the grant of the licence be likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters?
Similar to their approach to s 237(a), the Wanjina-Wunggurr contentions expressly note they do not address s 237(c) and that the evidence is relied on ‘to its full effect’. I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
With reference to the exploration intentions in Ms Procak’s affidavit, Macallum Group contend that major disturbance under s 237(c) is not likely. Macallum Group note they are aware of the endorsement condition 2 about the Environmental Protection Act 1986 (WA) and associated regulation. They also contend the ‘Grantee party will act in compliance with all water resource management statutory obligations and, in accordance with Endorsement 8 of the Endorsements and Conditions, all activities will be undertaken [to] minimise damage disturbance or contamination of waterways including their beds and banks, and riparian and other water dependent vegetation’. They contend given the previous extensive mining activity, ‘the disturbances caused by the exploration activities will be unlikely to cause major disturbance’ and any disturbances that may occur will be rehabilitated as legally required.
I find the grant of the licence is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E04/2438 to Macallum Group Limited is not an act that attracts the expedited procedure.
Helen Shurven
Member
19 September 2017
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