Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd

[2010] NNTTA 133

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd, [2010] NNTTA 133 (18 August 2010)

Application No:        WO09/401, WO09/519

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

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

Wanjina-Wunggurr (Native Title) Aboriginal Corporation – (WC99/11) (Applicant, native title party)

- and -

The State of Western Australia (Government party)

- and -

Braeburn Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  18 August 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 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
Environmental Protection Act 1986 (WA)
Land Administration Act 1977 (WA)

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, Member

Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250

Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391

Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362

Little & 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

Neowarra v Western Australia [2003] FCA 1402

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 (Wajarri)/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

Representatives of the     Ms Hema Hariharan, Kimberley Land Council
native title party:            Ms Ania Maszkowski, Kimberley Land Council

Representatives of the     Mr Domhnall McCloskey, State Solicitor’s Office
Government party:         Mr Greg Abbott, Department of Mines and Petroleum

Representative of the
grantee party:                 Mr Steve Milner, Austwide Mining Title Management Pty Ltd

REASONS FOR DETERMINATION

1. On 20 February 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 E80/4181 (‘the tenements’, ‘the tenement areas’) 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).

2. On 25 March 2009, the Government party gave notice under s 29 of the Act of its intention to grant exploration licence E04/1853 (‘the tenements’, ‘the tenement areas’) 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).

3. The tenement E80/4181, in accordance with the s 29 notice, comprises an area of 314.02 square kilometres located 232 kilometres west of Wyndham in the Shire of Wyndham-East Kimberley. The tenement E04/1853 comprises of an area 419.44 square kilometres located 254 kilometres west of Wyndham in the Shire of Wyndham-East Kimberley. The tenement E80/4181 is overlapped at 100 per cent and the tenement E04/1853 is overlapped 86.04 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.

4. On 18 June 2009, the native title party made an expedited procedure objection application to the Tribunal on the tenement application E80/4181.

5. On 27 July 2009, the native title party made an expedited procedure objection application to the Tribunal on the tenement application E04/1853.

6. On 7 July 2009, Deputy President Sumner was appointed Member for the purposes of the conduct of the Inquiry for tenement E80/4181. On 18 August 2009, DP Sumner was appointed Member for the purposes of the conduct of the Inquiry for tenement E04/1853. 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.

7. On 2 October 2009, the grantee party informed the Tribunal via telephone that it did not wish to negotiate any further and requested the matter proceed to inquiry for the tenement E80/4181. The native title party made a request for Direction dates to be amended and extended and this request was subsequently approved by DP Sumner on 3 November 2009.

8. On 21 October 2009, the grantee party requested the matter proceed to inquiry for the tenement E04/1853. The native title party made a request for Direction dates to be amended and extended and this request was subsequently approved by DP Sumner on 12 October 2009.

9. The Government party lodged its evidence and contentions on 7 September 2009 and 25 March 2010. The native title party lodged a statement of contentions and unsworn affidavit on 16 November 2009.

10. On 18 May 2010, the grantee party lodged with the Tribunal their Statement of Contentions for both E80/4181 and E04/1853.

11. On 27 May 2010, the Listing Hearing was convened and the native title party advised that an attempt would be made to have the unsworn affidavit affirmed and would advise of the lodgement of the signed affidavit in due course; the Government party and the grantee party agreed to accept the evidence as an unsigned affidavit of the native title party, although the Government party noted they would not accept a signed affidavit post determination.

12. On 23 April 2010, Member Daniel O’Dea was appointed as the Member for the purposes of the conduct of the Inquiry.

13. At the Listing Hearing all 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

1. 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.’

1. 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.

2. 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 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.

3. 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

1. Government party documentation establishes the following underlying land tenure on the tenement areas:

   E80/4181:

   ·Crown Reserve 41886 for the use and benefit of Aboriginal Inhabitants (0.8 per cent overlap);

   ·Crown Reserve 8247 General stock and traveller use (4.6 per cent overlap);

   ·Vacant Crown Land (94.6 per cent overlap)

E04/1853:

·Crown Reserve 27164 Conservation of Flora and Fauna (14 per cent overlap)

·Crown Reserve 8247 General stock and traveller use (0.4 per cent overlap)

·Vacant Crown Land (85.6 per cent overlap)

1. 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 E80/4181.  Marunbabidi is the community in which Mr Paddy Neowarra resides, and is approximately 2 kilometres east of the tenement area E80/4181. 

2. 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 areas.

1. According to the Government party Quick Appraisal documentation it shows that in relation to exploration licence E80/4181 there are a total of ten dead tenements of which one exploration licence was active between 2003 and 2004, while seven other exploration licences were either withdrawn or refused. In relation to exploration licence E04/1853 there are a total of ten dead tenements of which one exploration licence was active between 1995 and 1996, while seven other exploration licences were withdrawn.

2. 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).  An additional condition 5 to be imposed requires that the written consent of the Minister responsible for the Mining Act 1978 (WA) be obtained before commencing any exploration activities on the Watering Place for Travellers and Stock Reserve 8247, Benefit of Aboriginal Inhabitants Reserve 41886 and Conservation of Flora and Fauna Reserve 27164.

3. In the contentions of the Government party, a further condition (‘the proposed condition’) will be placed on the grant of the tenement E04/1853:

   ‘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 a request being sent by pre-paid post to reach the Licensee’s address, Austwide Mining Title Management Pty Ltd, PO Box 1403, 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’.

4. 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.

5. 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 tenements E80/4181 and E04/1853:

   ·The licensee’s attention is drawn to the provisions of the AHA and any Regulations thereunder.

   ·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.

   ·The land the subject of this licence affects rainforest areas. The licensee is advised to contact the Department of Environment and Conservation for detailed information on the management requirements for rainforest areas and rainforest monitoring sites or sites present within the tenement area.

The following endorsement (which differs from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed for tenement E80/4181:

·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 (WA) and which is shown designated as 5371 in TENGRAPH.

Evidence provided by the native title party

1. The native title party’s Statement of Contentions was accompanied by a document entitled Affidavit of Paddy Neowarra. It was prepared in the normal affidavit form on the basis that it would be affirmed by Mr Neowarra. At the Listing Hearing held on 27 May 2010, the grantee party and the Government party had no objection to the unsworn affidavit being submitted as evidence by the native title party. Mr Neowarra is a native title holder of the Wanjina-Wunggurr Wilinggin Native Title Lands and I accept that he has the requisite authority to speak on behalf of the native title holders.  The Tribunal has frequently referred to the fact that it relies on the principles set out by Member (now Deputy President) Sosso in Hughes v State of Western Australia and Another [2003] NNTTA 69; (2003) 182 FLR 362 at [13]-[18] (‘Hughes’) which considered the question of the admissibility of unsworn or unsigned documents in circumstances not dissimilar to this.

2. I entirely agree with the position taken by DP Sosso in Hughes.  The Tribunal is not bound by the rules of evidence albeit it is by the rules of procedural fairness.  The Tribunal is required to consider questions of the acceptance of evidence on a practical and informal basis.  The principles that are discussed by DP Sosso confirm that in normal circumstances the Tribunal will not reject material which has not met the standards which the laws of evidence would require.  However, I believe it necessary to make a number of observations in relation to this particular matter.  The sworn affidavit of Mr Neowarra was received by the Tribunal on 5 August 2010.  It is, it would appear, a properly and formerly executed affidavit.  The document that was previously before the Tribunal was an unsworn, unmarked document which was headed Affidavit of Paddy Neowarra and although set out in the form one would expect of an affidavit, was not signed, marked or authenticated in any way.  The document that was before DP Sosso in Hughes was similarly set out in affidavit form, but to each page was affixed the mark, in the form of a cross, of the deponent and next to that mark the name of the deponent was written by an unidentified person who, presumably, witnessed the affixation of the mark of the deponent.  In other words, there was some indication that the document, after it had been prepared in typed form, was presented to the deponent for their inspection and authentication.  In the matter before us, prior to the receipt of the sworn affidavit by Mr Neowarra, the document was unmarked and unauthenticated in any way.  The Tribunal, in previous matters, has taken the view that, notwithstanding the fact that a document is unauthenticated in any way, if there is no objection to the form of the document and the content is uncontested, that it will accept the document for consideration as evidence.  Nevertheless, representatives of native title parties should take every reasonable step to avoid such a situation.

3. The point of making these comments is that the principles set out in Hughes are principles which relate to the document which has some form of authentication attached to it.  In my view, if a document, such as the one presented by Mr Neowarra prior to the receipt of the sworn affidavit, was objected to by any party on the basis of its content, I would not be inclined to accept it.  Suffice it to say that in my view, Hughes, of itself, does not allow for the automatic acceptance of material in which there is no authentication that the document actually reflects the opinions and beliefs of the purported deponent.  In any event, the native title party has presented a sworn affidavit of Mr Neowarra.  It is uncontested and I accept it.

4. The sworn affidavit of Mr Paddy Neowarra, accepted as a signed affidavit, 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.I know the area where Braeburn Resources Pty Ltd “the grantee party”, have applied for Exploration Licence Numbers E80/4181, E04/1853, “the Exploration licence areas”, very well, because I have been shown maps of the application areas. The maps I was shown are attached to this affidavit and marked “A”.

   INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

   3.The Exploration licence area falls within Wanjina Wunggurr Wilinggin country.

   4.I know all that area shown on those maps, it is Galerungarry, that’s the “Rain Tribe” that’s my country and Gudu, my sister’s, country. It connects to Barrarungaari up the top, that’s Keith Neowatt’s country. I am the senior person for that country; I have the law for that country.

   5.I know the law for that country on those maps and I’ve written a book about all of the Willingin (sic) country with other people “The Gwion Gwion” in about 2000. That book tells about some of the places and law through there.

   6.I also gave evidence about that country in the Native Title Hearing in Court.

   INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

   7.I know the Exploration licence area very well. There are many places in my country, including inside the Exploration licence areas, which are very important and have great significance in the traditional religion of my community.

   8.Galerungarry is where the law started and it goes right through as far away as Fitzroy. Even if you ask that desert mob they will tell you that’s where the law started.

   9.The old people used to do ceremony up there. They used to tell us stories. Today, we still visit that place.

   10.The area on these maps is the most important places (sic) for Wungurr (sic) law. This is where the law starts, the Yarra, he took the law right around from the saltwater through to the desert, that’s like our ten commandments, what you can and can’t do – for everybody.

   11.There are many paintings, and stone arrangements, and burial places, and Wungurr (sic) sites through there. Sites for the crocodile, the kangaroo, “Walangunda” the Milky Way. I wrote about many of these places in my book. I still often visit that place.

   12.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.

   13.The waterholes are part of the Wungurr (sic), that’s where people come from and where their spirit goes when they pass away. You can’t just take water like that, you would disturb the spirits.

   14.The Exploration License Area E80/4181 on the map in Annexture A covers part of the Muranbabidi Reserve. That Reserve was put there because of the cultural significance of the area. We built our community there so we can look after that country.

   15.We are looking after all the important places in our country. We are passing on these stories to our young people.

   MAJOR DISTURBANCE TO LAND OR WATER

   16.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.

   17.I understand the sort of things mining companies do, we’ve worked with plenty of mining companies before and we get along well with them when they do the right thing, so we’ve seen how they carry out their exploration, because we work alongside them. We’ve just done that with United Minerals and we are happy with them. They came in the right way and talked with us first. We’ve done that with Rio Tinto too.

   18.We’re  not against mining companies but they can’t just go in there, they need to talk to us. We need to show them where they can and can’t go. If they go to the wrong places they will damage the spirits. If they take water from the wrong place or in the wrong way they will damage the spirits. There are places that men can’t go at all. We need to show them all of that.

   19.We don’t want mining right on the community either and we are worried that if we have mining activity near the tourist camp tourists won’t want to come. That’s how we support our community, from that tourist money.

   20.Strangers cannot help themselves to our country. 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.’

1. The evidence of Mr Paddy 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.

Community or social activities (s 237(a))

1. 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]).

2. 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.

3. The Government party’s evidence establishes that limited exploration activity has occurred in the tenement area.

4. 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.

5. The evidence of Mr Neowarra states that he knows the claim because ‘I know all that area shown on those maps, it is Galerungarry, that’s the “Rain Tribe” that’s my country and Gudu, my sister’s country. It connects to Barrarungaari up the top, that’s Keith Neowatt’s country. I am the senior person for that country; I have the law for that country’ (PN Aff para 4).  The evidence of Mr Neowarra to the effect that ‘all the area on those maps’ is Galerungarry is ambiguous.  Of the four maps, two show enlargements of the two tenement areas and two show a much greater area of country.  I infer that Mr Neowarra is referring to the broader area.  The evidence of Mr Neowarra does not deal with specific conduct of any community and social activities in the claim area, within or in the vicinity of the tenement areas.  There is not sufficient evidence provided to make an inference that the exploration activities likely to take place in the tenement areas will interfere with community or social activities of the group.

6. 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 63,163.66 square kilometres and the tenement areas combined are 733.46 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].

7. The native title party has not provided any evidence which would allow an inference that community or social activities are being conducted within the tenement areas that would likely be affected by the exploration activities. Taking these factors into consideration, I find that the grant of the tenement is not likely to directly interfere with the exercise of the community or social activities of the native title party.

8. 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’ (NTP contentions p 14), as I have repeatedly said, I adopt the findings of DP 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.

Sites of particular significance (s 237(b))

1. 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.

2. 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 (‘Butcher Cherel’) 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.

3. Mr Neowarra attests, in his affidavit, that inside his ‘country’ there are many places ‘including inside the exploration licence areas, which are very important and have great significance in the traditional religion of my community’ (PN Aff para 7).  Mr Neowarra then goes on to talk of Galerungarry which he cites as the place where the law started and a place where ‘the old people used to do ceremony up there…Today, we still visit that place’ (PN Aff para 9).  I caused a search of the decision of Sundberg J in Neowarra v Western Australia [2003] FCA 1402, in which the evidence of Mr Neowarra was of central significance, and could find no reference to Galerungarry.

4. In his affidavit Mr Neowarra states that ‘the area on these maps is the most important places for Wungurr law…There are many paintings, and stone arrangements, and burial places, and Wungurr sites through there…We carry out ceremony on that country; we had a traditional burial out there a couple of years ago. There are other burial places out there and those bones can’t be disturbed’ (PN Aff para 10-12). The evidence suggests that the area Mr Neowarra refers to as ‘the area on these maps’ is the tenement areas, the area surrounding the tenement areas as well as the wider claim area. The native title party is required to provide sufficient detail and specificity in order to allow the Tribunal to make a predictive assessment in accordance with s 237(b) of the Act. I am prepared to accept that there may be sites of significance to the native title party that are contained inside the tenement areas as well as the entire claim area. However, as the evidence in this matter is not specific and less extensive, it leads to my conclusion that there is insufficient evidence to establish that there are sites of particular significance within the tenement areas.

5. Mr Neowarra’s statements in relation to painting, stone arrangements and burial places and ‘Wunggurr sites through there’ (PN Aff para 11) for the crocodile, Walangunda the Milky Way and the kangaroo does not identify these sites, nor their location. The use of the words ‘sites through there’, in my opinion, refers to the maps that were submitted into evidence and cited in his affidavit as marked “A”.

6. The evidence of the native title refers to the Reserve 41886, known as Marunbabidi, that is located and partially overlaps, the eastern border of the tenement application E80/4181 for which the Government party evidence states it proposes to impose condition 5 of the Draft Tenement Endorsement and Conditions Extract.

7. The evidence provided by the native title party in relation to sites is uncontested, but their specific location is unclear.  The evidence that he has provided does not establish that there are sites of particular significance to the native title holders as a whole.

8. On the basis of the evidence before me, I am unable to find that there are any sites of particular significance to the native title party within the tenement areas and, therefore, I am not required to proceed to make an assessment as to whether or not the presumption of regularity and the other protective regimes would be sufficient to protect such sites.

Major disturbance to land and waters (s 237(c))

1. The Tribunal is required to make an evaluative judgment 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).

2. The unsworn affidavit of Mr Neowarra states that the native title party is not against mining companies and that they have had good working relationships with other mining companies in the area in the past. Mr Neowarra indicates that if the grantee party enters the area of the tenements without permission or take water from the wrong place or in the wrong way ‘they will damage the spirits’ (PN Aff para 18). Mr Neowarra expresses concern that the native title party do not want mining ‘right on the community either and we are worried that if we have mining activity near the tourist camp tourists won’t want to come. That’s how we support our community, from that tourist money’ (PN Aff para 19). Using the words ‘the community’, I infer that Mr Neowarra is referring to the Muranbabidi Reserve community. I accept that the presence of strangers on the subject area may be upsetting to the native title holders. However, the starting point and the precondition of enquiry in matters relating to s 237(c) is evidence of physical disturbance that 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 concerns about unauthorised access, in terms of the native title holders’ traditional laws and customs, alone, cannot form the basis of the finding of major disturbance. There must be some physical disturbance over and above that which it has been judged will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that could be pointed to will be the exploration activities to be conducted by the grantee party. 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 the land without speaking to them, is not sufficient to establish that major disturbance is likely to occur. I find that there is not likely to be major disturbance to land or waters in this case.

Determination

1. The determination of the Tribunal is that the grant of exploration licences E80/4181 and E04/1853 to Braeburn Resources Pty Ltd is an act attracting the expedited procedure.

Daniel O’Dea
Member
18 August 2010