Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Meridan (Lennard Shelf Project) Pty Ltd and Another
[2018] NNTTA 60
•15 October 2018
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Meridan (Lennard Shelf Project) Pty Ltd and Another [2018] NNTTA 60 (15 October 2018)
Application No: WO2017/0303
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 -
The State of Western Australia
(Government Party)
- and -
Meridan (Lennard Shelf Project) Pty Ltd
(Grantee party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal:Ms H Shurven, Member
Place:Perth
Date: 15 October 2018
Catch Words: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with 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, 151(2), 237
Mining Act 1978 (WA) s 66
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (Cherel v Faustus Nominees)
Cheinmora v Striker Resources NL & Ors; Dann v Western Australia [1996] FCA 1147; (1996) ALR 21 (Cheinmora v Striker Resources)
FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC [2014] FCA 1335 (FMG Pilbara v YAC)
Gooniyandi Aboriginal Corporation RNTBC v Kimberley Granite Quarries Pty Ltd and Another [2016] NNTTA 1 (Gooniyandi v Kimberley Quarries)
Karajarri Traditional Lands Association (Aboriginal Corporation)/Western Australia/ASJ Resources Pty Ltd [2012] NNTTA 18 (Karajarri Traditional Lands Association v ASJ Resources)
Kevin Peter Walley and Others on behalf of the Ngoonooru Wadjari People/Western Australia/Allan Neville Brosnan, [2001] NNTTA 78 (Walley v Brosnan)
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (Parker v Ammon)
Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd,[2002] NNTTA 18; (2002) 169 FLR 1 (Silver v Northern Territory)
Rosas v Northern Territory (2002) 169 FLR 1; [2002] NNTT 113 (Rosas v Northern Territory)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (Parker v Western Australia)
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (Smith v Western Australia)
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 20 (Ward v Western Australia)
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (Western Australia v Thomas)
Yindjibarndi Aboriginal Corporation v FMG Pilbara Pty Ltd and Another [2014] NNTT 8 (Yindjibarndi Aboriginal Corporation v FMG Pilbara)
Representative of
the Native Title Party: Mr Alex Romano, Kimberly Land Council
Representatives of Mr Michael McMahon, Department of Minerals, Industry and Safety
the Government Party: Ms Francis Cardell-Oliver, State Solicitors office
Representative of the
Grantee Party: Ms Emily Wilson, Castledine Gregory
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E04/2464 (the licence, the licence area) to Ridgecape Holdings Pty Ltd (Ridgecape), who is now the beneficial owner of the grantee Meridan (Lennard Shelf Project) Pty Ltd. The State of Western Australia (the State) gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant the licence for reasons that the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Act. That is, the State considers the grant of the licence is an act attracting the expedited procedure under the Act. All references to sections of legislation in this determination are to the Act, unless otherwise stated.
The area available for grant covers approximately 4058.88 hectares and falls wholly within the Wanjina-Wunggurr Wilinggin native title determination No 1 (WCD2004/001). No other native title claim or determination overlaps the licence area. Two mining claims – M04/161 and M04/162 – overlap part of the proposed licence, and that area of approximately 1174 hectares is not available for grant.
The Wanjina-Wunggurr (Native Title) Aboriginal Corporation (Wanjina-Wunggurr/the Corporation) hold native title in the whole of the licence area, on behalf of the members of the Wanjina-Wunggurr Community, for their respective communal, group and individual rights and interests in the determination area. Members of the Wanjina-Wunggurr community have exercised their right to lodge an objection with the National Native Title Tribunal (the Tribunal) against the State’s assertion that the expedited procedure applies. The Community argues the expedited procedure should not apply as interference or disturbance with one or more of the criteria in s 237 of the Act is likely. The former President of the Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
According to s 237 of the Act, 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 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 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.
What information did parties rely on?
Wanjina-Wunggurr material
The Wanjina-Wunggurr submitted contentions and supporting evidence, contending the grant of the proposed licence is not an act attracting the expedited procedure and that the objection should be upheld.
Wanjina-Wunggurr relies on the following evidence:
(a)Affidavit of Ms Pansy Nulgit;
(b)a joint affidavit of Mr Kevin Lele Dann and Mr Robin Dann; and
(c)the Aboriginal Heritage Information System (AHIS) search.
Ms Pansy Nulgit is a senior elder and cultural advisor. I accept she can speak for the licence area. Mr Kevin and Mr Robin Dann are senior caretakers for the licence area and I accept they can also speak on behalf of the area.
Wanjina-Wunggurr express their connections to all the country identified on the map provided with their materials, which includes the licence area. The map shows the location of areas referred to in the affidavit evidence, including Chedda Cliffs, Napier Range, Barker Gorge and the Barker River.
According to the Department of Planning, Land and Heritage’s (DPLH) AHIS, there are four registered sites within the licence:
(a) 12582 Wagon Pass – artefacts/scatter, painting, arch deposit, engraving;
(b) 12584 Mt Leslie – artefacts/scatter, painting [I note the site and the geographical feature of Mt Leslie is variously spelled Lesley throughout the materials];
(c) 13946 Wagon Pass, Napier Range – artefacts/scatter, engraving, mythological, painting; and
(d) 14124 Napier Range (Area 4) – skeletal material/burial.
The AHIS also lists other heritage places that are recorded within the licence area:
(a)14125 Napier Range (Area 5) – artefacts/scatter, engraving, grinding patches/grooves, painting, skeletal material/burial, arch deposit, camp shell; and
(b)18174 Napier Range – artefacts/scatter, burial, skeletal material, arch deposit.
It is not contentious that members of the Wanjina-Wunggurr community live at Windjingayr, which is located within the proposed licence. Wanjina-Wunggurr contend that members of the community regularly access Windjingayr and the proposed licence to hunt, camp, access, protect painting and burial sites and use the resources of the area. The Wanjina-Wunggurr further contend that if Ridgecape were to access the area near to Windjingayr without the knowledge of members of Wanjina-Wunggurr, it would likely interfere with the willingness of members of the Wanjina-Wunggurr community to access and use the area for their community and social activities. Wanjina-Wunggurr also relies on evidence of repatriation ceremonies for ancestor remains on or near the licence.
The State’s material
The State lodged:
(a)Statement of Contentions;
(b)Map of proposed licence;
(c)Tengraph Quick Appraisal Form for the proposed licence;
(d)DPLH AHIS results for the proposed licence;
(e)Endorsements and Conditions to be imposed in respect of the proposed licence; and
(f)Map showing proposed licence and location of Chedda Cliffs, Napier Range, Barker Gorge and the Barker River.
The States contentions accept there is a community at Windjingayr, which is located in the proposed licence area and is routinely accessed by members of the Wanjina-Wunggurr community throughout the year, particularly in the dry season in order to be able to live and remain in the community. However, the State suggests there is insufficient evidence the Wanjina-Wunggurr social or community activities will be disrupted in the event the licence is granted. The State argue there is insufficient evidence the grant of the licence would interfere with hunting and camping activities; and that it remains unclear as to whether repatriation ceremonies take place within the licence area and whether such ceremonies will be conducted in the future.
The State contends the grant of the licence is unlikely to interfere with or obstruct any sites of particular significance due to Ridgecape’s willingness to enter into Regional Standard Heritage Agreement (RSHA), together with the RSHA condition and the accompanying Endorsements and Conditions the State would impose as part of the grant of the licence. The State makes brief contentions regarding their view that the presence of non-native title holders in the vicinity of sites of significance is unlikely to constitute interference for the purposes of s 237(b).
The area of the proposed licence has previously been the subject of: 11 granted exploration licences, overlapping the proposed licence area by up to 81.3 per cent; 75 mineral claims, overlapping the proposed licence area by up to 2.3 per cent; and 3 temporary reserves, overlapping the proposed tenement by up to 100 per cent.
Ridgecape Holding’s material
Ridgecape has not provided any evidence in relation to their intended activities within the licence area, or their intentions towards protecting Aboriginal heritage and willingness to work with Wanjina-Wunggurr, particularly given the Aboriginal community on the licence. Ridgecape have indicated they rely on the contentions and documents lodged by the State in this inquiry.
I note the State’s contentions and evidence provides little information regarding Ridgecape’s intentions or their intended activities over the lifetime of the licence area. I understand 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). This includes removing up to 1000 tonnes of material from the area. I have assumed Ridgecape will exercise the full suite of rights in the absence of any other information.
Facts and Issues
Parties conferred and attempted to draft a Statement of Agreed Facts to submit to the Tribunal, as per inquiry directions. Parties were unable to agree. The direction was vacated and no Statement was provided. In accordance with s 151(2) of the Act, I am satisfied the objection application can be adequately determined on the papers.
I base my decision on the s 237 criteria in determining whether a future act is an act attracting the expedited procedure. In performing this assessment, I must look at what is likely to occur as a result of the grant and decide whether there is a real chance or risk 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]).
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, Ridgecape Holdings and the State must negotiate in good faith with the Wanjina-Wunggurr community with a view to reaching an agreement with the Corporation about the proposed grant of the licence.
Section 237(a): Interference with community or social activities
In accordance with s 237(a) of the Act, there must be a direct and substantial interference with social or community activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must find a balance between a native title party’s evidence of social and community activities against an explorer’s proposed exploration activities. The Tribunal may conclude the activities can coexist without direct or substantial interference (see Rosas v Northern Territory at [7]).
The term ‘community activities’ is not necessarily limited to the activities of a particular localised community. However, if evidence is not derived from the collective experiences of a localised group of persons, then specific evidence must be provided to identify the individuals as a community (see Silver v Northern Territory at [59]). The term ‘social activities’ can encompass activities carried on by an individual or small group in certain circumstances, such as where the activities have a wider social dimension (see Silver v Northern Territory at [60]).
In reaching its decision the Tribunal must:
(a)determine whether the proposed future act is likely to be the proximate cause of interference;
(b)determine the level of interference with community and social activities (which must be substantial rather than trivial); and
(c)have regard to other factors that might constrain the native title party’s community or social activities
(see Smith v Western Australia at [451]).
Is the grant of the licence likely to interfere directly with Wanjina-Wunggurr community or social activities?
Wanjina-Wunggurr contends the proposed licence area is the subject of current community and social activities by members of the Wanjina-Wunggurr community. Wanjina-Wunggurr relies on the existence of its registered native title rights and interests. I have taken those interests into account to the extent that the community and social activities of which there is evidence are a manifestation of those rights and interests (see Western Australia v Thomas at 166-167). I note the area around Windjingayr has been determined as being exclusive native title.
The evidence provided by Wanjina-Wunggurr as it relates to the community of Windjingayr (located within the licence area) establishes that members of the Wanjina-Wunggurr community live and remain at that community. The Wanjina-Wunggurr people continue to use and maintain the water source and other structures that are built at and near Windjingayr. The Wanjina-Wunggurr people express that exploration will directly interfere with social and community activities on the licence area.
Wanjina-Wunggurr identify that the licence area, compared to the remainder of the determination area, is a place where Wanjina-Wunggurr families have lived for many generations and it is a place regularly visited for camping and hunting. Important food sources of the area include hunting kangaroo and turkey.
I take into consideration the affidavit material, which makes reference to the community at Windjingayr and indicates that members of the Wanjina-Wunggurr community visit there regularly, especially during the dry season. The Windjingayr community (located in the centre west part of the licence) is an area which is stated to be rich in kangaroo and turkey and the people of the community have been hunting and camping there for a long time. Mr Kevin and Robin Dann explain that ‘right up in the northern part of the licence area (just over the back of Mount Lesley) there is an old uncapped bore where the water overflows and the kangaroo and turkey go to’. Mount Lesley is approximately 4 kilometres north of the community, and mapping indicates it is on or very near to the licence area.
Wanjina-Wunggurr contends the grant of the proposed licence will interfere with access to and protection of rock painting sites. The evidence outlines that those sites may be damaged or that non-native title holders may get sick if they look at them without a traditional owner being present. The evidence before the Tribunal also suggests any access to these areas without the permission of senior traditional owners is likely to interfere with the area, in accordance with traditions of the Wanjina-Wunggurr. The evidence points to the issue that access to these areas is restricted under traditional laws and customs and that even ‘low impact’ activities such as the taking of rocks or soil for sampling would interfere with the traditional laws and customs of the Wanjina-Wunggurr.
Wanjina-Wunggurr contends that living in a community, conducting repatriation ceremonies and hunting and camping in the vicinity of that community are all activities which will be interfered with unless there is direct consultation with the Wanjina-Wunggurr people before entering the area.
I note the affidavit of Mr Kevin and Robin Dann (at 8 and 12) outlines that repatriation ceremonies relating to the remains of deceased Wanjina-Wunggurr people have taken place. While it is not clear exactly where they took place with respect to the licence, I find it is established that there are many burial sites ‘near the community’, through Chedda Cliffs (which are partly on the licence) and along Napier Range (which is also partly on the licence). The affidavit evidence outlines that Wanjina-Wunggurr consider any access of Ridgecape exploration activities in the vicinity of burial sites or Windjingayr would likely interfere with social and community activities endorsing the traditions of members of the Wanjina-Wunggurr community. This especially includes through the use of exploration machinery or vehicles when exploring.
The State are not satisfied that the Wanjina-Wunggurr community and social activities will be disrupted in the event that the licence is granted. The State assert mere feelings of hurt, surprise, fright or offence referred to in the affidavit material is not relevant to s 237.
The State argue that part of the Wanjina-Wunggurr evidence suggests a virtual veto over exploration, by focusing on native title holders being ‘unhappy’ or ‘anxious’ at strangers coming onto the area and anticipating this will be sufficient to stop exploration activities (at 27). The State have cited Gooniyandi v Kimberley Quarries in support of that argument. The Wanjina-Wunggurr contentions argue (at 16):
In the NTP’s [native title party’s] respectful submission, the State’s interpretation of this case is not consistent with established principles of the Tribunal which direct attention to whether the grant of the tenement is likely to interfere with a particular activity which is a manifestation of the NTP’s determined native title rights and interests, which in part of the Tenement Area around Windjingayr, includes an entitlement against the whole world to possession, occupation, use and enjoyment of the land and waters.
In Gooniyandi v Kimberley Quarries, I found the expedited procedure applied. The veto argument was raised in relation to s 237(c), however, it has also been raised in previous tribunal decisions in relation to other limbs of s 237. In my reading of the evidence in the current inquiry, Wanjina-Wunggurr argue that because of the sensitive nature of the area, including a community on the licence, and burial sites, the threshold for interference in terms of the limbs of s 237 is lower than it would be in other circumstances. They do not appear to suggest there should be a general veto over exploration activities.
The State further submit in their view there is insufficient evidence of current hunting and camping activities. The State also submit there is insufficient evidence indicating how the grant of the proposed licence would interfere directly with the activities referred to in the affidavit material. However, I do note the affidavits refer to various community and social activities on and around Windjingayr, including hunting, which occur ‘heaps’ and ‘people head out there all the time’ particularly in the dry season. They also say ‘before it was a community it was a camp for our old people’.
What activities do Ridgecape Holding’s propose to undertake on the licence?
There is no information provided regarding what specific activities Ridgecape will be undertaking on the proposed licence area. Outlined in the States contentions (at 16) is that ‘Ridgecape filed a statement of contentions on 2 May 2018 stating that it is authorised by the Grantee Party to act on its behalf in these proceedings and that it relies on the contentions and evidence filed or to be filed by the Government Party’.
Wanjina-Wunggurr contend that with respect to the intentions of Ridgecape, it is likely that at some point in the life of the licence, they will exercise their right to undertake exploration which is not low impact. Wanjina-Wunggurr believe that due to the community being located within the proposed licence area, with any intensive use of the area around the community and licence area, it would be reasonable to find that it would take fewer activities on the part of the explorer (in nature and extent) to interfere with the activities of the Wanjina-Wunggurr.
Conclusions
I take into consideration the Wanjina-Wunggurr community and social activities and note that Ridgecape Holdings has not provided any evidence in relation to their intended activities with the licence areas, as well as their intentions. I accept the Wanjina-Wunggurr hold exclusive native title around Windjingayr, use the licence area regularly throughout the year, particularly during the dry season, and live in the community according to their traditions. Importantly, a water source conducive to hunting activities, and other structures built at and near Windjingayr, are maintained by members of the Wanjina-Wunggurr community. I also accept there are burials throughout the licence, including within walking distance of Windjingayr.
Living in a community on the licence, and hunting and camping within the vicinity of that community and in the north of the licence, are all activities which I accept will be interfered with unless there is direct consultation between Ridgecape and members of the Wanjina-Wunggurr community prior to exploration activities. Even taking great care and complying with the States regulatory regime, it is not unreasonable to conclude that exploration activities, particularly if they were conducted near Windjingayr or on or near a burial site, would cause interference for the purpose of s 237(a) of the Act.
Section 237(b): Areas or sites of significance
An area or site of particular significance is one of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources at [34]–[35]). If an area or site is significant, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]). In Yindjibarndi Aboriginal Corporation v FMG Pilbara (at [130]), former President Webb placed this distinction on a wider footing, noting that s 237(b) requires the Tribunal to distinguish between areas and sites which are generally culturally significant and specific culturally significant areas and sites which are of particular significance.
With respect to issues arising under s 237(b), I note the following principles:
(a)a site or area of particular significance is one which is of special or more than ordinary significance to the native title holders (see Cheinmora v Striker Resources NL).
(b)when evaluating the degree of interference, the Tribunal must consider the nature of the site, the nature of the potential interference and the laws and traditions of the native title holders (see FMG Pilbara v YAC at [49]). It is up to the Tribunal to expressly and inferentially consider the nature of the sites in forming a view as to whether it was likely that the exploration activities may give rise to the interference to which s 237(b) of the Act is directed (see Parker v Western Australia at [18]).
On the interaction between s 237(b) and the site protection regime established under the Aboriginal Heritage Act 1972 (WA) (AHA), I adopt the findings made in Parker v Ammon at [31]–[38] and [40]-[41]; Karajarri Traditional Lands Association v ASJ Resources at [48]-[53], [84]-[87] and [91]; Cherel v Faustus Nominees at [81]-[91].
The State argue that interference must be physical, however, McKerracher J in FMG v YAC clarified that:
As to the contention for the State that the interference will ordinarily be physical, this is not expressly articulated in the legislation. There is no reference to physical interference and the word “interference“ is qualified by the expression “ … in accordance with [the native title party’s] traditions“. It may follow that mere entry onto the site other than on supervised terms and conditions at one level could be regarded as being physical, but may from the native title party’s perspective none the less be non-trivial interference.
Are there any sites of particular significance on the licence, and is the grant of the licence likely to interfere with areas or sites of particular significance to Wanjina-Wunggurr?
Wanjina-Wunggurr contends the evidence establishes these sites of particular significance:
(a)Burial sites which appear to be located in caves in the cliffs at Chedda Cliffs, in the Napier range, and throughout the licence, particularly close to Windjingayr (see Mr Kevin and Robin Dann Affidavit (at 8-12) and Ms Nulgit’s Affidavit (at 13-14);
(b)Wanjina rock art located throughout the Napier Range, including a big sacred painting at Wagon Pass (See Mr Kevin and Robin Dann Affidavit (at 13, 15-19) and Ms Nulgit’s Affidavit (at 13-14);
(c)The spring and kimburr rocks referred to throughout Ms Nulgit’s Affidavit and marked on the map annexed to that Affidavit (which is within the licence); and
(d)The water holes referred to in Mr Kevin and Robin Dann’s Affidavit (at 14), created by dingoes in the Dreamtime.
The Wanjina-Wunggurr contend that any ground disturbing activity in the proposed licence has a high likelihood of disturbing human remains and that rock chipping, sampling or other surface testing techniques will disturb sites of particular significance. The State offers no substantive contention disputing that any of these sites are sites of particular significance to the members of the Wanjina-Wunggurr community. The State’s contentions focus on the location of the sites and the likelihood of interference.
Burial sites
Wanjina-Wunggurr gives evidence as to ‘lots’ of burials on the licence area, referring to burials being ‘near the community’, and ‘all through Chedda Cliffs’. Burials are also described as ‘all up the Napier Range from Barker Gorge’. The State submit most of the Napier Range is located outside the proposed licence area. They say it is not clear from the evidence provided how many (if any) of the repatriation ceremonies of ancestor remains referred to by Wanjina-Wunggurr occurred inside the proposed licence area. Although a significant place for the Wanjina-Wunggurr people, the State believe that Barker River/Barker Gorge (which is referred to as a place of repatriation) is outside of the licence area. This is confirmed by mapping.
It is important to note the Tribunal can consider (in the context of s 237(b)) areas or sites outside the proposed licence which are close and will be affected. The fact that native title holders bring forward evidence in relation to land or waters that is either not part of the proposed tenement or the claim area, does not render that material irrelevant (see Silver v Northern Territory at [35]). However, for the purposes of my decision in this inquiry, I focus my attention on the sites of particular significance which are said to be on the licence. The Napier Range and Chedda Cliffs extend into the licence, and I accept evidence there are burials throughout those features and throughout the licence itself.
With specific regard to the evidence of repatriation ceremonies, I am satisfied these ceremonies are of cultural significance and that any ground-disturbing activities would interfere with traditional lore and customs of the traditional owners of the area. I refer to specific evidence of there being ‘lots of burials’ as being ‘near Windjingayr’ which can be accessed easily from Windjingayr, are located ‘up there in a rock’ and also located ‘through the Chedda Cliffs’. I note the reference to a specific burial site that was identified as being ‘in a cave in the range within walking distance of the community’.
I accept there are burial sites in the caves and throughout the licence area. I conclude the burial sites are sites of particular significance, given the focal point of the traditional community and social activities in the area. The grantee say nothing about their proposed activities, or how they may avoid interference with the paintings in caves or avoid interference with burial sites. I conclude that even in view of the States regulatory regime, including the proposed RSHA, that by acting lawfully on grant of the licence, Ridgecape is likely to disturb burial sites on the licence without negotiations with the Wanjina-Wunggurr community.
Given the intensive use of the area over time, including by the old people of the Wanjina-Wunggurr community, and the features on the licence and surrounds which are important to the traditions of that community, I accept the burial sites are sites of particular significance for the purposes of s 237(b).
While the State say that there are some burials that are likely to be located outside of the proposed licence, affidavit material has been presented from Wanjina-Wunggurr traditional owners who say there are burial sites on and throughout parts of the licence. The evidence establishes that access to these areas is restricted under traditional laws and customs and that even ‘low impact’ activities such as the taking of rocks or soil for sampling would interfere with the traditional laws and customs of the Wanjina-Wunggurr, and so be an interference of a site of particular significance for the purposes of s 237(b).
Wanjina rock art and paintings
Evidence locating the paintings is general. Wanjina-Wunggurr contends there are particularly significant rock art sites located within the part of the Napier Range that traverses the proposed licence area, at Wagon Pass and in part of the Napier Range. The State accept that at least some paintings are within the proposed licence. They do, however, remain uncertain about how many paintings are located in the licence, as opposed to elsewhere in the Napier Range.
I accept there is a site of particular significance at Wagon Pass, and note the AHIS has sites registered at Wagon Pass, including paintings. I accept the State’s regulatory regime, including the proposed RSHA, will assist the explorer navigate their requirements in relation to the area of Wagon Pass. In relation to the other paintings, the evidence is not detailed enough for me to conclude they are sites of particular significance on the licence. As such, I do not analyse whether or not the explorer’s activities would interfere with those sites.
The spring, kimburr rocks, and waterhole
The waterhole site identified in the affidavit of Mr Robin and Kevin Dann is connected with a Dreamtime story and is identifiable as lying inside the western boundary of the lower part of the proposed licence area. The evidence states that people need to respect such waterholes and speak to the Wanjina-Wunggurr before accessing the area to ensure the area is being accessed appropriately.
Ms Nulgit identifies an important spring as a site of kimburr rock, which is rock of great significance to the Wanjina-Wunggurr, associated with spear head making and traditional activities.
From the evidence, I have concluded the waterhole and the spring are separate areas. I accept they are both areas of particular significance.
I accept the waterhole within the licence is a place of particular significance to the Wanjina-Wunggurr, because of its connection with the Dreaming story, the burials and the Wanjina paintings (which are central to Wanjina-Wunggurr culture). Evidence suggests the waterholes tied to the Dreaming are a focal point of Wanjina-Wunggurr law and respect for culture. Because of the level of sensitivity of the area, and its proximity to the aboriginal community on the licence, I am satisfied that the activities of the explorer are likely to interfere with the waterhole.
The map attached to Ms Nulgit’s affidavit appears to show the spring associated with the kimburr rock to be in or very near to the area which is not available for grant (the existing mining tenements). While I conclude the spring, with its spear head making association and kimburr rock is an area of particular significance because of its association with generations of Wanjina-Wunggurr and the traditional activities carried on there, I cannot conclude there is likely to be any interference with the spring or near surrounds if it is on the area not available for grant. While Ms Nulgit indicates the kimburr rock is also part of the Napier Range (which extends through the licence), there is insufficient evidence for me to conclude how far the area of kimburr rock extends from the spring, or to conclude part of the kimburr rock area is definitely within the area available for grant.
Conclusion
Wanjina-Wunggurr argue the licence area contains numerous significant sites which are sensitive under traditional law and custom and should not be accessible to people who are not a member of the Wanjina-Wunggurr community. They highlight that such sites may not be visited without causing disturbance under traditional law and custom, and should not be visited without the assistance of members of the Wanjina-Wunggurr community. Any interference such as rock chipping, sampling, surface testing techniques, and any other ground disturbing activities are likely to disturb the sites of significance.
I accept for the purposes of s 237(b), all of the sites listed at [42] of this decision are sites of particular significance. For the reasons outlined at [44]-[49] and [52]-[55], I accept the burial sites on the licence and the waterhole on the licence which is part of the Dreaming are likely to be interfered with by activities of the explorer.
Section 237(c): Major disturbance
In Yindjibarndi Aboriginal Corporation v FMG Pilbara, the Tribunal outlined the elements to be taken into account in assessing whether a future act will be an act causing ‘major disturbance’ according to s 237(c) of the Act (at [19]-[21]). I adopt that reasoning in this decision.
Wanjina-Wunggurr do not provide contentions or evidence in relation to s 237(c). 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’. Based on the available evidence, I do not conclude that s 237(c) will be offended by the grant of this licence.
Determination
I find the grant of exploration licence E04/2464 to Meridan (Lennard Shelf Project) Pty Ltd is not an act attracting the expedited procedure.
Helen Shurven
Member
15 October 2018
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