Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Thomson Aviation Pty Ltd
[2011] NNTTA 12
•14 February 2011
NATIONAL NATIVE TITLE TRIBUNAL
Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Thomson Aviation Pty Ltd, [2011] NNTTA 12 (14 February 2011)
Application No: WO10/118
IN THE MATTER of the Native Title Act1993 (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)
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The State of Western Australia
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Thomson Aviation Pty Ltd
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Melbourne
Date: 14 February 2011
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)
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)
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
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)
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)
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)
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 Lauren West, 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 Kevin Connell, Austwide Mining Title Management Pty Ltd
REASONS FOR DETERMINATION
On 7 October, 2009, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/4278 (‘the proposed licence’) to Thomson Aviation 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 proposed licence comprises an area of 85.14 square kilometres located 148 kilometres north of Halls Creek in the Shires of Wyndham-East Kimberley and Derby-West Kimberley. It is overlapped at 98.38 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 in these proceedings is the Wanjina-Wunggurr (Native Title) Aboriginal Corporation prescribed body corporate.
On 4 February, 2010, the native title party made an expedited procedure objection application to the Tribunal.
On 15 February, 2010, Deputy President Sumner was appointed as the Tribunal member to conduct the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgment of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At an adjourned status conference on 25 August, 2010, following a number of conferences and more than one request to extend compliance dates, the grantee party requested that the matter proceed to inquiry because agreement could not be reached between the grantee and native title parties.
The Government party lodged its evidence and contentions to the Tribunal on 10 May, 2010 and 24 May, 2010. The native title party lodged an unsigned statement of contentions and an unsworn affidavit of Wallace Midmee on 1 November, 2010. A signed statement of contentions, a sworn affidavit of Wallace Midmee and a sworn affidavit of Lauren West were received from the native title party on 9 November, 2010.
The Listing Hearing was convened on 11 November, 2010. The grantee party advised that it will rely on the evidence and contentions of the Government party.
I was appointed as the Member to conduct the inquiry in relation to expedited procedure objection WO10/118 on 13 January, 2011.
All parties have agreed that this matter can be determined ‘on the papers’ (i.e. without holding a further hearing). I am satisfied that the objection can be adequately determined in this way (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’), Deputy President Sumner considered the applicable legal principles (at 439-449 [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation, unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’) [formerly Department of Industry and Resources (‘DoIR’)]. Standard Condition 4 is also to be read with s 63AA of the Mining Act 1978 (WA) which requires approval by the DMP 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 (‘DIA’) and obtain advice from them that the proposed activities are acceptable.
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), (‘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 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 Deputy President Sosso in Silver v Northern Territory of Australia (2002) 169 FLR 1.
Evidence in Relation to the Proposed Act
The Government party has provided the following documents: a statement of contentions; a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence site; a report and plan from the DIA Register; a copy of the tenement application and the proposed endorsements and conditions of grant; and a tengraph quick appraisal.
A map prepared by the Tribunal’s Geospatial Services on 22 November, 2010, shows that there are no Aboriginal communities located within the proposed licence area, but there are three communities in the vicinity. Lakuwang is approximately thirty kilometres south of the proposed licence; Janterriji is approximately 42 kilometres south east and Yulumbu is approximately 50 kilometres south west of the proposed licence area.
DIA documentation provided by the Government party and the native title party confirms that there are no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) that overlap the area.
Government party documentation establishes the following underlying land tenure on the proposed licence area:
·PA67 Geothermal Discrete Area Release (100 per cent overlap);
·Vacant Crown Land (98.4 per cent overlap); and
·Indigenous Owned Lease 3114/1009 (Tableland) (1.6 per cent overlap).
There is also File Notation Area 8725, a Department of Environment and Conservation proposed Conservation Park, not endorsed by the DMP, which overlaps the proposed licence by 98.4 per cent. This proposed Conservation Park does not currently impact on any activities carried out in the area, but it may do in the future.
According to the Government party quick appraisal documentation, there has been previous mineral exploration activity in the area between 1992 and 2009. There are eight dead tenements which overlap E80/4278. Of these, three were surrendered, three were withdrawn and two were forfeited. A Tribunal overlap analysis report on the area shows that Future Act Objection Applications were lodged by the native title party in relation to two of these dead tenements (WO01/90 and WO06/371). Both of these objections were withdrawn due to agreement being reached between the parties.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker, at [21] - Conditions 1-4). Additional conditions imposed require that the pastoral lessee be notified of the grant of the licences and of certain exploration activities (refer to conditions 5-6).
In the contentions of the Government party, a further condition (‘the proposed condition’) will be placed on the grant of the proposed licence:
‘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-Wunnggurr Wilinggin People 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 and offered by the Kimberley Land Council.’
This condition will not affect or assist the native title party or the grantee party as there is no such Regional Standard Heritage Agreement ‘endorsed by peak industry groups and offered by the Kimberley Land Council’ presently 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:
·The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
·The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Evidence provided by the native title party
The native title party has provided the following documents:
Statement of contentions of the native title party signed and dated 8 November, 2010;
An affidavit of Mr Wallace Midmee, dated 8 November, 2010, the signing of which was witnessed by Ms Lauren West, a solicitor for the native title representative body; and
An affidavit of Ms Lauren West dated 9 November, 2010, attesting to Mr Midmee’s authority to speak for the exploration licence area and the manner in which the affidavit of Mr Midmee was obtained.
The statement of Mr Midmee is as follows:
1. My name is Wallace Midmee. I was born on 1 July 1941 at Tableland Station. My name ‘Midmee’ means rifle fish.
2. I know the area where Thomson Aviation Pty Ltd, the “grantee party”, has applied for Exploration Licence E80/4278, the “Exploration Licence Area”, very well, because the Exploration Licence Area is on the country I belong to. I have walked all over the Exploration Licence Area with my mother and my father.
3. I have been shown a map of the Exploration Licence Area. The map I was shown is attached to this affidavit and marked “A”.
4. My connection to this country is through my father’s side.
INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE
5. There is good hunting and fishing in and around the Exploration Licence Area.
6. When I go to the area I hunt kangaroo (djeeding), goanna (gundooluj) and emu (ngarrabuda) and I fish for brimm (djumbanburra), catfish (dulingi), fresh water rock cod (nyugoonyun) and barramundi (dayall).
7. I collect bush tucker from in and around the Exploration Licence Area. There are green plums (darloon), black plums (minjudwarda), bush potato (bunarri) and bush banana (mugaballa) in this area.
8. When I was young I went to the Exploration Licence Area a lot. Now I still go there sometimes.
9. The Exploration Licence Area is river country. When the river is low I go there to look for barramundi. When I put a special mangrove in the water, the fish come up to the surface and I can catch them. We call it Mullawuny.
10.Near the river at the top of the Exploration Licence Area there is bush honey which we collect from trees and rocks. We call it burrwoodgee.
11.When I go to the Exploration Licence Area I teach young people about this country. I show our kids how to hunt, gather, sing and dance, the same way my father and my uncle taught me.
INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE
12. 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.
13.I buried my old man (father’s father) in a graveyard north of Percy Yard, near to the Exploration Licence Area. We call this No 1 Percy Yard Dwalwan.
14.The top of the hill is a camping place for the old people. We call this place Roondoon. The old people would camp there and live in caves during the wet season. There are special things still there. When they camped there, they travelled in and over the Exploration Licence Area for hunting and fishing.
15.There was an old man who lived at the bottom of the Chamberlin (sic) River. He would catch and skin dingoes and sell them in Bedford Downs, then come back again. For a long time he sold the dingoes to the station manager. That old man he lived there but is finished now.
16.The old man had many things buried in and around his camp including in the Exploration Licence Area. The mining company needs to speak to me before they go on the Exploration Licence Area. They might dig up a grave or take a sample from the wrong place.
17. There is a special spring at the top of the Durack Range. We call it Goowoolurr. We take our young people to this spring to show them short-necked turtle (dugungbul) and long-necked turtle (woolarm murrawal).
18.There are ceremonial grounds along the Chamberlin (sic) River area. We call this area Gwardmindin. My old man, my uncle and my grandfather been telling me stories for all that area.
19.The water from the Chamberlin (sic) River flows into the rivers within the Exploration Licence Area.
20. 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
21. 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.
22. 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. Our country is special, it’s our life. We have to look after it and show our young people.
23.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. They might dig up a grave or take a sample from the wrong place. Or they might damage our water supply.
The evidence of Mr Midmee is uncontested and I accept it. Mr Midmee is a native title holder of the Wanjina-Wunggurr Wilinggin Native Title Lands. I accept that Mr Midmee has authority to speak for the country on behalf of the native title party, which is confirmed by the supporting affidavit of Ms Lauren West.
Ms West attests that Paddy Neowarra, a named applicant for the Wanjina Wunggurr Wilinggin Native Title Holders, directed her to talk to the Malay family regarding the proposed licence area. Lindsay Malay then told Ms West that his uncle, Wallace Midmee, and his aunty, Betty Walker, were the people that she needed to speak to. Ms West met with Mr Midmee and Ms Walker and showed them maps of the proposed licence area; they confirmed that they were the traditional owners of the area.
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 proposed licence, 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, the conditions to be imposed on the exploration licence and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of the community or social activities of the native title party in relation to the area of land concerned. The Government party also contends that the grant of the proposed licence is not likely to interfere directly with the carrying on of the community or social activities of the native title party because there are no Aboriginal communities situated in the area.
The evidence of Mr Midmee establishes that there is good hunting and fishing in and around the proposed licence area (WM Aff, at paras 5-6) which includes hunting for kangaroo (djeeding), goanna (gundoolunj) and emu (ngarrabuda) and fishing for brim (djumbanburra), catfish (dulingi), fresh water rock cod (nyugoonyun) and barramundi (dayall). The evidence describes a method for fishing when the river is low: “When I put a special mangrove in the water, the fish come up to the surface and I can catch them. We call it Mullawuny” (WM Aff, at para 9). The evidence does not establish the frequency of these activities with any degree of specificity other than to state that “When I was young I went to the Exploration Licence Area a lot. Now I still go there sometimes” (WM Aff, at para 8).
The evidences establishes that bush tucker is collected from in and around the proposed licence area, including green plums (darloon), black plums (udwarda), bush potato (bunarri) and bush banana (mugaballa). Mr Midmee states that, “Near the river at the top of the Exploration Licence Area there is bush honey which we collect from trees and rocks. We call it burrwoodgee” (WM Aff, at para 10). There is no mention of the frequency of these gathering activities.
The evidence refers to community and social activities associated with teaching young people about the country and showing “our kids how to hunt, gather, sing and dance, the same way my father and my uncle taught me” (WM Aff, at para 11). The evidence of Mr Midmee establishes that he knows the proposed licence area very well because it is the country he belongs to. He says that he has walked all over the area with his mother and father (WM Aff, at para 2).
The evidence of Mr Midmee does not deal specifically with the frequency of the conduct of the activities of hunting, gathering and teaching, which he has outlined in his affidavit. Mr Midmee lives in the Yulumbu community, which is located approximately 50 kilometres from the boundary of the proposed licence area. He talks about going to the area “sometimes” and, in relation to the activities described, Mr Midmee usually refers to “in and around the Exploration Licence Area.” The activities described are not specifically linked to the proposed licence area. It is also possible to infer, from the evidence, that the community accesses the rest of the area, which is also the subject of their native title, in that vicinity, for similar purposes.
The Tribunal has found, on numerous occasions, that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with native title party community or social activities, except in an incidental and insubstantial way. In these circumstances, while I accept, on the evidence, that the native title party uses the area for hunting, fishing, gathering and the other community and social activities that are referred to in the affidavit of Mr Midmee, I do not believe that the sorts of exploration activities likely to be undertaken, and their episodic nature, is likely to interfere with the conduct of those community and social activities. This is more so when you consider that the area of the native title party’s determination encompasses approximately 63, 000 square kilometres and the proposed licence area is 85.14 square kilometres. There will be many other areas in which the native title party will be able to conduct those community and social activities, if there were to be temporary interference 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)), at [43]-[44].
Taking all these factors into consideration, I find that the grant of the proposed licence is not likely to directly interfere with the exercise of the community or social activities of the native title party.
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 at para 14), I adopt the findings of Deputy President Sumner in Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd, NNTT WO06/248 and WO06/250, [2007] NNTTA 11 (31 January 2007) at [22]. Since the 1998 amendments to the Act, the expedited procedure is not attracted if there is direct interference with the ‘carrying on of the community or social activities’ of the native title holders. Carr J’s statement is no longer applicable.
Sites of particular significance (s 237(b))
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 (special or more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows that there are no registered sites within the proposed licence area, but this does not mean there may not be sites or areas of particular significance to the native title party over the proposed licence 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 sections 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal, recently in Maitland Parker at [31]-[38] 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), (‘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.
Mr Midmee attests in his affidavit that, “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” (WM Aff, at para 12). Mr Midmee then goes on to talk about five places which are of particular significance to him. Firstly, the burial place of “my old man”, in a graveyard north of Percy yard, “near to” the “Exploration Licence Area” and called Dwalwan. Secondly, he refers to a camping place for the old people on the top of a hill called Roondoon. Mr Midmee attests, “The old people would camp there and live in caves during the wet season. There are special things there” (WM Aff, at para 14). Thirdly, Mr Midmee talks about an area at the bottom of the “Chamberlin River” where an old man lived and caught and skinned dingoes to sell in Bedford Downs (WM Aff, at para 15). The evidence provides that the old man had many things buried in and around his camp, including in the proposed licence area. In relation to these sites, Mr Midmee is concerned to ensure that the mining company speak with him before going onto the area because they might dig up a grave or take a sample from the wrong place. Fourthly Mr Midmee talks about a special spring at the top of the Durack Range called Goowoolurr where the community take their young people to show them short necked-turtle (dugungbul) and long necked-turtle (woolarm murrawal). Finally, Mr Midmee talks about ceremonial grounds along the Chamberlain River area (Gwardmindin). He says that “My old man, my uncle and my grandfather been telling me stories for all that area” (WM Aff, at para 18).
Burial place north of Percy 1 Yard - I understand that graves and cemeteries are places of great importance in most cultures and it is of great importance to protect and preserve them. I have no doubt that the burial place of Mr Midmee’s “old man” is a site which has particular significance for Mr Midmee. This site is likely to have particular significance for the native title party as a whole also because Mr Midmee’s family are the traditional owners of the area and well known among the native title party group (as demonstrated in the affidavit of Lauren West). Also, Mr Midmee describes the area as a graveyard, so there may be other members of the native title party buried there. Percy 1 Yard is located approximately five kilometres from the southern boundary of the proposed licence. Mr Midmee is not specific in describing the location of the graveyard but says that it is north of Percy Yard, near to the proposed licence area. This description indicates that the site is not located within the proposed licence area; as such it is not likely to be interfered with by the grantee party in their exploration activity. In respect that the native title party may be concerned that the site will be interfered with in gaining access to the proposed licence, by virtue of this determination, the grantee party has been put on notice of the existence and general location of this site. I note that there is no evidence to suggest that the grantee party will not act lawfully and in accordance with the AHA.
Camping ground for the old people - Mr Midmee is not specific in his description of the location of this site. He refers to its location at “the top of the hill.” The Durack Range runs along the Chamberlain River, to the south and east of the proposed licence, and it might be that the hill is part of the range. However, Mr Midmee specifically refers to the Durack Range to describe the location of a different site and this may indicate that the hill does not form part of the Range, because, if it did, he would have described it as so. In respect of whether the site is of particular significance to the native title party, Mr Midmee provides evidence that there are special things at the camp site. 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. The evidence provided is not sufficiently specific as to identify the site as situated within the proposed licence area and hence I am unable to conclude that there is likely to be interference with it.
Bottom of Chamberlain River where “the old man” lived - According to a map prepared by the Tribunal’s Geospatial Services, the bottom of the Chamberlain River is over thirty kilometres from the southern boundary of the proposed licence. Mr Midmee’s affidavit states that the old man would catch and skin dingoes and then sell them in Bedford Downs. Bedford Downs station is also located approximately thirty kilometres from the proposed licence area. The evidence does not establish that the place where the old man lived is a site of particular significance for the native title party. In any case, the distance of the site from the subject area leads me to a finding that it is not likely to be interfered with by exploration activity within the proposed licence.
Spring at the top of the Durack Range - The Durack Range runs along the eastern and southern boundaries of the proposed licence and, at the closest point, is about ten kilometres from the boundary. The evidence does not demonstrate that the Spring is a site of special or more than ordinary significance to the native title party. Presumably, there are numerous areas where the community takes their young people to teach them about aspects of the country. Similarly, to the previously discussed sites, I find that the location of the Spring, as described by Mr Midmee, being several kilometres from the proposed licence, means that it is not likely to be interfered with.
Ceremonial grounds along the Chamberlain River – As noted above, the Chamberlain River runs along the eastern and southern boundaries of the proposed licence, and, at its closest point, is about three kilometres from it. The evidence provided is not sufficiently particular to establish that these ceremonial grounds are located within the proposed licence and hence likely to be interfered with.
On the basis of the evidence before me, I am unable to conclude that there are any sites of particular significance to the native title party within the proposed licence. In any case, if there are sites of significance within or in the vicinity of the proposed licence, I can see no reason why the protective regimes under the AHA should not be sufficient to ensure that there is unlikely to be interference with these sites. Further, as previously mentioned, by virtue of this determination, the grantee party has been put on notice of the existence of any sites referred to in the evidence that may be in the vicinity of the proposed licence.
Major disturbance to land and waters (s 237(c))
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).
The affidavit of Mr Midmee expresses concern that “strangers must come and see people and ask for permission before coming onto our country because we have a lot of very special places on my country, from our old-time people and from the early days” (WM Aff, at para 22). Mr Midmee states “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. They might dig up a grave or take a sample from the wrong place” (WM Aff, at para 23). Mr Midmee also expresses concern that those undertaking the exploration activity might damage the community’s water supply (WM Aff, at para 23).
As already dealt with above, the evidence of the native title party does not establish that there are any sites of particular significance or graves within the proposed licence area.
In respect to damage to the community’s water supply, from the evidence before me, I presume that the source of water that Mr Midmee is referring to is the Chamberlain River. As exploration activity is low impact and the river at its closest point is some kilometres from the proposed licence boundary, I find it unlikely that a major disturbance to these waters is likely to occur.
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 a finding of major disturbance. There must be some physical disturbance over and above that which will be prevented or made unlikely by the protective provisions and remedial regimes of the jurisdiction concerned. The only activities in this matter that can be pointed to are 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 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
The determination of the Tribunal is that the grant of exploration licence E80/4278 to Thomson Aviation Pty Ltd is an act attracting the expedited procedure.
Neville MacPherson
Member
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