Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd
[2010] NNTTA 150
•15 September 2010
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 150 (15 September 2010)
Application No: WO10/61
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Wanjina-Wunggurr (Native Title) Aboriginal Corporation – (WC99/11) (Applicant, native title party)
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The State of Western Australia (Government party)
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Braeburn Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT NOT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 15 September 2010
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Mining Act 1978 (WA), s 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Champion v Western Australia and Another [2005] 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250
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
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 (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso
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
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133 (18 August 2010), Daniel O’Dea
Representatives:
Native Title party: Ms Hema Hariharan, Kimberley Land Council
Ms Ania Maszkowski, Kimberley Land Council
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Mr Greg Abbott, Department of Mines and Petroleum
Grantee party: Mr Steve Milner, Austwide Mining Title Management Pty Ltd
Ms Helen Polglaze, Bauxite Resources Pty Ltd
REASONS FOR DETERMINATION
On 23 September 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4259 (‘the tenement’, ‘the tenement area’) to Braeburn Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
The tenement E80/4259, in accordance with the s 29 notice, comprises an area of 254.41 square kilometres located 189 kilometres west of Wyndham in the Shire of Wyndham-East Kimberley. The tenement is 99.33 per cent within 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 25 January 2010, the native title party made an expedited procedure objection application to the Tribunal on the tenement application E80/4259.
On 8 February 2010, Deputy President Sumner was appointed Member for the purposes of the conduct of the Inquiry for tenement E80/4259. 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 first preliminary conference on 23 February 2010, the grantee party informed the Tribunal that it did not wish to negotiate any further and requested the matter proceed to inquiry. The native title party made three requests for Direction dates to be amended and extended and these requests were subsequently approved by DP Sumner as at 12 July 2010. A fourth request for Direction dates to be amended and extended by the native title party was subsequently approved by Member Daniel O’Dea on 23 July 2010. At this time a springing order was imposed to automatically dismiss the objection if the native title compliance was not served on the Tribunal by close of business 26 July 2010.
The Government party lodged its evidence and contentions on 3 May 2010 and 17 May 2010. The native title party lodged an unsigned statement of contentions and an unsworn affidavit on 26 July 2010. The native title party subsequently lodged a sworn affidavit on 5 August 2010 and signed contentions on 25 August 2010.
On 28 July 2010, the grantee party lodged with the Tribunal their Statement of Contentions for E80/4259.
On 21 July 2010, Member Daniel O’Dea was appointed as the Member for the purposes of the conduct of the Inquiry.
At the Listing Hearing all present parties agreed that this matter could be determined ‘on the papers’ (i.e. without holding a further hearing). I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).
Legal principles
Section 237 of the Act provides:
237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), DP 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.
With respect to issues arising under s 237(b), I also 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] and [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 DP Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1.
Evidence in Relation to the Proposed Act
Government party documentation establishes the following underlying land tenure on the tenement area:
E80/4259:
·Unnumbered Land Act reserve UNN 1011 (16.3 per cent of the tenement area)
·Pastoral Lease 3114/1174 DOONGAN (83.7 per cent of the tenement area)
There are no Aboriginal communities identified within the tenement area. However, according to the map prepared by the Tribunal, there is one Aboriginal community within the vicinity of the tenement area. Muranbabidi is the community in which Mr Paddy Neowarra resides, and is approximately 10 kilometres west of the tenement area.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party and native title party reveals no registered Aboriginal site under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) overlapping the tenement area.
According to the Government party Quick Appraisal documentation it shows that there are a total of nine dead tenements of which five exploration licences were withdrawn, while four temporary reserves were active between 1965 and 1986. It also demonstrates that a Crown Reserve 41369 Domestic Satellite Ground Station overlaps the tenement at less than 0.1 per cent.
There is a National Heritage Listing (NHL/106063, The Kimberley) over 100 per cent of the proposed licence under the jurisdiction of the Department of Environment, Water, Heritage and the Arts. According to the Department’s website, the status of NHL/106063 is ‘Ministerial request for assessment’.
The grant of the tenements 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).
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, formerly Department of Industry and Resources (‘DoIR’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act 1978 (WA) which requires approval by the DMP Environmental Officer 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.
An additional five conditions (5-9) to be imposed require that:
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 rings; water carting equipment or other mechanical equipment.
6.The licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of: -
· The grant of the licence; or
· 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 responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Domestic Satellite Ground Station Reserve 41369.
8.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.
Consent to explore on Canning Stock Route Reserve granted subject to:
9.No exploration activities being carried out on Stock Route Reserve UNN 1011 which restrict the use of the reserve.
In the contentions of the Government party (at 5(d)), a further condition (‘the proposed condition’) will be placed on the grant of the tenement E80/4259:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Wanjina-Wunggurr (Native Title) Aboriginal Corporation the native title prescribed body corporate holding the determined native title of the Wanjina-Wunggurr Wilinggin recognised in Federal Court application no. WAD 6015/99 (WC99/11), such request being sent by pre-paid post to reach the Licensee’s address, C/- Austwide Mining Title Management Pty Ltd, PO Box 1434, Wangara WA 6947 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wanjina-Wunggurr (Native Title) Aboriginal Corporation the Regional Standard Heritage Agreement endorsed by peak industry groups offered by the Kimberley Land Council.
The imposition of this condition will be of little avail to either the native title party or the grantee party as there is no such Regional Standard Heritage Agreement ‘endorsed by peak industry groups offered by the Kimberley Land Council’ in existence. The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed for tenement E80/4259:
1.The licensee’s attention is drawn to the provisions of the AHA and any Regulations thereunder.
2.The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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.
Evidence provided by the native title party
The native title party provided evidence in the form of this sworn affidavit of Mr Paddy Neowarra which states:
AFFIDAVIT OF PADDY NEOWARRA (PN Aff)
I, Paddy Neowarra, Retired Stockman, of Muranbabidi Community in the State of Western Australia, affirm:
1.My name is Paddy Neowarra. I am one of the senior people for the Wanjina Wunggurr Wilinggin Native Title Holders.
2.My skin name is Woolayi. There are two types of skin names in my country my skin name is Woolayi.
3.I know the area where Braeburn Pty Ltd, “the grantee party” have applied for Exploration Licence Number E80/4259, the “Exploration Licence Area”, very well, because the Exploration License (sic) Area is on Wanjina Wunggurr Wilinggin country, the country I belong to. I’m a senior law man, so I know the area very well. The map of the Exploration License (sic) Area is attached to this affidavit and marked “A”.
4.Muranbabidi Community is in the west of the Exploration License (sic) Area, near King Edward River. I grew up on the area where the grantee party want to go. Muranbabidi is my community.
5.My connection to country and to the Exploration Licence Area is through my father’s side Kaolaroo area.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
6.The exploration licence area falls on Wanjina Wunggurr Wilinggin country.
7.There are several ceremony grounds there in and around the Exploration License (sic) Area. These are very important places.
8.I go bush towards Mudijan and Mundja near Muranbabidi Community.
9.I go to the Exploration License (sic) Area for hunting kangaroo (yaliy), bush turkey (bellard, immino), emu (tjapera or japarad). When they [pastoralists] are not mustering out there. We go for fishing, lots of fishing. Sometimes we go with a gun or spear for bream or crock. That place, the Exploration Licence Area, we call it Mungarr Koana.
10.There are lots of palm trees there on the Exploration License Area. They have got like cabbage on that tree. There are rock figs (murranda) on the Exploration Licence Area. We get medicine there from the lorr and keleljat (sic) The Lorr we burn it and wet it and rub it on yourself. Kelelljat (sic), is like gum. We burn it and put it in water and rub it into sores. It’s a cure for scabies.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
11.I know the Exploration Licence Area very well. There are many places in my country, including inside the Exploration Licence Area, which are very important and have great significance to us.
12.There are lots of paintings in and around the Exploration Licence Area, especially on the north side. There are a lot of paintings near the Doongan Ranges. They would destroy them. Heritage is very important.
13.There are some women’s sites in and around the north and eastern sides of the Exploration License (sic) Area, particularly close to the King Edward River.
14.We do ceremonies and in and around the Exploration License (sic) Area.
15.There are dreamtime stories from and cover the Exploration License (sic) Area. But I don’t want to talk about this.
16.We have burial sites everywhere there on the Exploration License (sic) Area. Lots of people passed away there. Lots of people buried there. Where the Wanjina paintings are there are (sic), there are all burial grounds. We take those bones of the dead people and put it where the Wanjina paintings are. Back to their country, where they came from.
17.The law grounds in the Exploration License (sic) Area are special to us. Every year we go for ceremonies there. This year there will be ceremony for my grandchild there. We do one kind of ceremony there every November and December. That time we call Djiolaat.
18.We don’t want like people getting close to those law areas. If they go out there without talking to us, they break our law. We need to know where they are heading. Can’t go there without permission.
19.We are looking after all the important places in our country. We have to teach the kids the country, about tucker there and the Aboriginal Law for the place so that they know their Country and look after it. That Law comes from our old people. It comes from a long time ago and still goes on today.
MAJOR DISTURBANCE TO LAND OR WATER
20.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.
21.Strangers must come and see people and ask for permission before coming onto our country because we have got a lot of very special places on my country, from our old-time people and from the early days. That’s why we need to know where people are headed. Lots of people can have accidents. Lots of people have bad accidents there already, when they went there and didn’t speak to us first. That’s why they have to meet with us, and we’ll take them.
22.If strangers damage a site, artefact or other dreaming areas we feel very upset you know. We feel very sad, like someone close to us has died. It’s like the same thing for country.
23.Strangers cannot help themselves to our country. They have got to ask us first. They should really talk to Traditional Owners, so we can understand really what they want to do. If we say No, they must leave our country, but if we say “yes” they can stay and talk with us. If they make money out of my country, they can maybe give my community a little bit because they are taking something from our country our land.
Mr Neowarra states that he is a senior member of the native title party. He was one of the applicants in the native title party’s claim prior to its determination. I accept he has the authority to speak on behalf of the native title party. The evidence of Mr Neowarra is uncontested and I accept it. When he uses the plural pronouns we and us, I accept he is referring to himself and his fellow native title holders.
I do note, that in the native title party’s contentions at paragraph 19, they suggest that there are two registered sites within the tenement area. This conflicts with the evidence adduced by the grantee party at Attachment B to its Statement of Contentions and the Government party at the appended extract from the Aboriginal Heritage Inquiry System (Department of Indigenous Affairs) in its contentions. There is no further evidence identifying these purported registered sites. I suspect that it is a drafting error and I conclude that there are no registered sites within the tenement area.
Evidence provided by the Grantee Party
The grantee party’s statement of contentions was accompanied by a mining tenement summary report from the Department of Mines and Petroleum marked ‘A’, an extract from the Aboriginal Heritage Inquiry System marked ‘B’ which demonstrates that there are no registered sites in the tenement area and a written submission ‘Application for the Written Consent of the National Native Title Tribunal to the Granting of Exploration Licences: E04/1853, E80/4180, E80/8181, E80/4223, E80/4258, E80/4259 Kimberley Region’ which includes a proposed exploration programme, marked ‘C’.
The grantee party states that they support and rely on the contentions of the Government party.
The grantee party also states that it acknowledges its responsibilities under the AHA and undertakes to conduct heritage surveys of the tenement area prior to conducting exploration activities. Furthermore, the grantee party reiterates that it will undertake to comply with the relevant statutes, protocols, codes of practices, conditions of grant of the tenement and all other requirements of relevant authorities and Government. The grantee party contends that the impact exploration over the tenement area will have will result in minimal impact on the surface of the land and upon the local communities.
The proposed work programme encompasses detailed photo-interpretation from existing colour air photography, regional reconnaissance by foot, examining rock and soil, surface sampling by means of small drill rig along existing tracks and traverse lines.
Community or Social Activities (s 237(a))
The Tribunal is required to make a predictive assessment as to whether, as a matter of fact, the grant of the tenement, and the activities undertaken pursuant to it, are likely to interfere with the community or social activities of the native title party (in the sense of there being a real chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). The notion of direct interference involves an evaluative judgment as to whether 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 into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63 and conditions to be imposed on exploration licences 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 Government party’s evidence establishes that limited exploration activity has occurred in the tenement area.
The native title party contends that, within the tenement area, members of the native title party belong to that country, they camp and conduct their community and law within the tenement area, look after Aboriginal paintings, burial places and sites of importance and have ancestors and family who are buried there.
The evidence of Mr Neowarra states that he knows the area because ‘the Exploration License (sic) Area is on Wanjina Wunggurr Wilinggin country, the country I belong to. I’m a senior law man, so I know the area very well ... My connection to country and to the Exploration Licence Area is through my father’s side Kaolaroo area’ (PN Aff 3 and 5). The area Mr Neowarra refers to is a map attached to the affidavit evidence marked ‘A’ which identifies the tenement in the claim area, waterholes, pastoral lease and Crown Reserve 41369 domestic satellite station which lies within the tenement area.
Mr Neowarra describes how they hold ceremonies in and around the exploration licence area and a ceremony is held every year called Djiolaat in November and December, which will be held in the tenement area this year. However, there is no further detail on where specifically in the tenement area this ceremony will be held or the number of people who attend. Mr Neowarra attests that ‘There are several ceremony grounds there in and around the Exploration License (sic) Area. These are very important places. . . . The law grounds in the Exploration License (sic) Area are special to us’ (PN Aff 7 and 17) but does not specify or elaborate further on this point. Mr Neowarra states that ‘I go bush towards Mudijan and Mundja near Muranbabidi Community’ (PN Aff 8). The Tribunal’s geospatial mapping was unable to identify or locate Mudijan or Mundja, however, Muranbabidi is shown to be approximately 10 kilometres west of the tenement boundary.
The Tribunal has repeatedly found that because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with the native title party community or social activities except in an incidental and insubstantial way. I do not believe that the sorts of exploration activities likely to be undertaken and their episodic nature, is likely to cause interference with the conduct of those community and social activities. This is more so when you consider that given the area of the native title party’s determination encompasses 63,165.17 square kilometres and the tenement area is 254.41 square kilometres. There will be many other areas in which the native title party would be able to conduct those community and social activities if there were to be temporary interferences as a result of the exploration activities. (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].
The native title party has provided little evidence which would allow an inference that community or social activities are being regularly conducted within the tenement area, apart from the evidence relating to the conduct of the ceremony called Djiolaat in November and December. The grantee party has provided an outline of the staged exploration program it proposes to conduct which does not lead me to conclude the exploration activities will be such that they will significantly affect the conduct of community and social activities by the native title party within the tenement area. Although the grantee party has not provided any evidence of the time at which it will be conducting its exploration, it is commonplace to observe that exploration activities are not conducted during the wet season in the Kimberley (which is generally between November/December and March). It is notable that the area of the tenement is approximately 254.41 square kilometres, set within the native title party’s determination area of 63,165.17 square kilometres. Notwithstanding the fact that the proposed tenement area comprises a minuscule amount of the native title party’s determination area (approximately 0.40 per cent) according to the grantee party (see grantee party’s Statement of Contentions at (18)), it is clear that community and social activities are conducted within that area. In this matter, although I conclude that the activities which Mr Neowarra describes in his affidavit are, indeed, community and social activities for the purposes of s 237(a), it does not appear to me that there is any real likelihood that the activities of the grantee party on the tenement area will interfere with those community and social activities. Consequently, I find that the grant of the tenement is not likely to directly interfere with the exercise of the community and social activities of the native title party.
Sites of Particular Significance (s 237(b))
In relation to s 237(b), 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. As stated, the Register kept under the AHA shows there are no registered sites within the tenement area, but this does not mean there may not be sites or areas of particular significance to the native title party over the tenement area or in the 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 (see Maitland Parker at [31]-[38] and [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]). 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 found to exist.
Mr Neowarra attests, in his affidavit, that inside his ‘country’ there are many places ‘including inside the Exploration Licence Area, which are very important and have great significance to us’ (PN Aff 11). Mr Neowarra then goes on to talk of ‘women’s sites in and around the north and eastern sides of the Exploration License (sic) Area, particularly close to the King Edward River’ (PN Aff 13). Although Tribunal mapping supports the statement that there may be sites to the north and eastern sides of the tenement area particularly close to the King Edward River, it also shows that the King Edward River is approximately 12 kilometres east of the tenement’s eastern border and there are 6 registered sites within a 20 kilometre radius of the tenement area but none are located within the tenement area.
In his affidavit Mr Neowarra states that ‘there are dreamtime stories from and cover the Exploration License (sic) Area. But I don’t want to talk about this. . . . We have burial sites everywhere there on the Exploration License (sic) Area. Lots of people passed away there. Lots of people buried there. Where the Wanjina paintings are there are (sic), there are all burial grounds. We take those bones of the dead people and put it where the Wanjina paintings are. Back to their country, where they came from’ (PN Aff 15-16).
A superficial reading of the evidence of Mr Neowarra in relation to the ceremonial grounds, burial sites and caves containing Wanjina paintings might lead to the suggestion that he has failed to provide sufficient specificity or detail to accord the Tribunal the capacity to identify any sites of particular significance within the area. However, in my opinion, the nub of Mr Neowarra’s evidence is to the effect that there are numerous caves within the area with Wanjina paintings, ceremonial grounds and probably, most importantly, graves. I am prepared to accept that each of those three categories of site could constitute a site of particular significance for the purposes of s 237(b).
The evidence in this matter, consisting of an affidavit of Mr Neowarra, can be distinguished from the evidence of Mr Neowarra in Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133 (18 August 2010). In my view, the evidence in this matter is far more specific as to the location of the sites within the proposed tenement area and provides a greater level of detail in that evidence. For instance, in the evidence that Mr Neowarra provided in the earlier matter referred to above, he states at paragraph 12 of his affidavit in relation to the burial grounds:
We carry out ceremony on that country; we had a traditional burial out there a couple of years ago. There are burial places out there and those bones can’t be disturbed. I gave evidence on that in the Native Title hearing.
In this matter, Mr Neowarra gave evidence as follows at (PN Aff 16):
We have burial sites everywhere there on the Exploration License (sic) Area. Lots of people passed away there. Lots of people buried there. Where the Wanjina paintings are there are, (sic) there are all burial grounds. We take those bones of the dead people and put it where the Wanjina paintings are. Back to their country, where they came from.
In both cases, paragraph 7 in the earlier matter and at paragraph 11 in this matter, Mr Neowarra asserts that the areas are ‘very important and have great significance’ to us. The mere assertion that an area has particular significance carries little weight. In this matter Mr Neowarra has elaborated more comprehensively than he did in the previous matter on the basis which he believes that those areas are, in fact, of particular significance to the native title party. Consequently, in this matter, I am prepared to find that there are areas of particular significance including burial grounds, ceremonial grounds and caves containing Wanjina paintings within the tenement area. In those circumstances I am now required to make a predictive assessment as to whether or not, given the protective regime which is in place in Western Australia, will be sufficient to ensure that it is unlikely that such sites will be interfered with by the conduct of the activities that the grantee party will be entitled to undertake should the tenement be granted.
The question now is whether the presumption of regularity and the protective provisions of the AHA and associated procedures is sufficient to ensure that it is unlikely (in the sense of there being no real risk) of sites on the tenement being interfered with (see Champion v Western Australia and Another [2005] 190 FLR 362). As has been noted earlier at [21], the Government party’s proposed additional condition 5(d), requiring the grantee party to enter into a RSHA, is of little significance in this matter because no such agreement exists.
The grantee party has indicated, in its contentions, that it acknowledges and undertakes to adhere to its obligations under the AHA and to liaise closely with the landowners affected. The grantee party also contends that it has a sound record in working with Indigenous people and I have no grounds, whatsoever, to doubt any of those assertions and do not do so.
In making its predictive assessment, the Tribunal must pay particular attention to the specific details of each matter that comes before it. In this case, given the existence of sites of particular significance to the native title party on the area concerned, the tenement area, particularly the burial sites, which may be difficult to identify, and in the absence of any RSHA, it is my view that there is a real risk that sites of particular significance to the native title party, may be inadvertently interfered with by the grantee party. In those circumstances I find that there is a likelihood of interference with sites of particular significance to the native title party.
Major Disturbance to Land and Waters (s 237(c))
Consequent upon my finding in relation to s 237(b) it is not necessary for me to address this limb of the section.
Determination
The determination of the Tribunal is that the grant of exploration licence E80/4259 to Braeburn Resources Pty Ltd is not an act attracting the expedited procedure.
Daniel O’Dea
Member
15 September 2010
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