Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/William James Crocker

[2010] NNTTA 59

NATIONAL NATIVE TITLE TRIBUNAL

Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/William James Crocker, [2010] NNTTA 59 (30 April 2010)

Application No:        WO09/511

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) (native title party)

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The State of Western Australia (Government party)

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William James Crocker (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Daniel O’Dea, Member
Place:  Perth
Date:  30 April 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, 148, 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), 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 William Crocker

REASONS FOR DETERMINATION

1. On 3 April 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 E80/4112 (‘the tenement’, ‘the tenement area’) to William James Crocker (‘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. The tenement, in accordance with the s 29 notice, comprises an area of 39.45 square kilometres located 196 kilometres south-westerly of Wyndham in the Shire of Wyndham-East Kimberley. It is overlapped at 100 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.

3. On 3 August 2009, the native title party made an expedited procedure objection application to the Tribunal.

4. On 18 August 2009, Deputy President Sumner was appointed Member for the purposes of the conduct of 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.

5. On 22 October 2009, the grantee party informed the Tribunal via telephone that he did not wish to negotiate any further and requested the matter proceed to inquiry.  He also advised that he would not be available for the first status conference and made a request for Direction dates to be amended and brought forward. At the first status conference held on 28 October 2009, neither the grantee party nor native title party was in attendance. On the information received from the grantee party, the Tribunal confirmed the matter was to proceed to inquiry under the Directions given by Deputy President Sumner until all parties were informed. On 25 November, the Government party made a request to amend Directions by a further three weeks. The Tribunal sought the views of all parties and the native title party requested a further extension of time which was opposed by the Government party. The Tribunal considered the parties’ submissions and on 30 November 2009 granted the native title party’s request.

6. The Government party lodged its evidence and contentions on 26 November 2009 and 4 December 2009. The native title party lodged a statement of contentions and unsworn affidavit on 9 March 2010.

7. On 16 March 2010, the grantee party lodged with the Tribunal his letter of 16 February 2010 addressed to the Department of Mines and Petroleum (‘DMP’). The letter includes a request by the grantee party to amend the tenement area to exclude four blocks from the grant of the tenement.

8. On 18 March 2010, the Listing Hearing was convened and the native title party advised that an attempt would be made to have the unsworn affidavit affirmed in the following week; however the Government party and the grantee party agreed to accept the evidence as an unsigned witness statement of the native title party. The grantee party is to rely on the Government party evidence and contentions.  During the Listing Hearing, the grantee party discussed his letter of 16 February 2010.

9. Following my appointment on 18 March 2010 for the purposes of the conduct of the Inquiry, I sought a further submission from the Government party on the effect of amending the tenement area for the purposes of making my determination.

10. 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’), 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.

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 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 Deputy President 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 area:

   ·PA67 Geothermal Discrete Area Release (72.9 per cent overlap);

   ·PA67 Geothermal Discrete Area Release (27.1 per cent overlap);

   ·Indigenous Owned Lease 3114/997 (Gibb River) (96.2 per cent overlap);

   ·Gibb River Road Reserve (0.1 per cent overlap).

2. There are no Aboriginal communities identified within the tenement area.  However, according to the map prepared by the Tribunal, there are three Aboriginal communities within the vicinity of the tenement area.  Ngallagunda is the community in which Mr Alfie White resides, approximately eight kilometres south west of the tenement area along the Gibb River Road.  The community of Dodnun is located approximately 30 kilometres south west of the tenement area and similarly, the community of Kupungarri, near Mt Barnett homestead is 40 kilometres south west along the Gibb River Road.  The Mowamjum community is approximately 135 kilometres further on from Mt Barnett homestead, in a south westerly direction.

3. Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party and native title party reveals one registered Aboriginal site under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) overlapping the tenement area:

   • Site ID 14376 – Wan Gan Gurr (painting, artefacts/scatter).

4. According to the Government party Quick Appraisal documentation it shows that one ‘pending’ exploration licence E80/4067 overlaps E80/4112 at 33.3 per cent and two previously granted ‘dead’ tenements were E80/2697 (withdrawn) and E80/2785 (forfeited), each overlapping E80/4112 at 66.7 per cent. Tribunal records indicate that E80/4067 is currently subject to an objection application (WO09/324) lodged by the native title party on 25 May 2009 and remains in the expedited procedure inquiry process. The ‘dead’ tenements E80/2697 and E80/2785 were subject to objections applications WO01/293 and WO02/214 by the Wanjina-Wunggurr Willinggin native title claimants, (WC99/11) with WO01/293 dismissed on 7 November 2001 under s 148(a) and WO02/214 withdrawn on 8 November 2001 with agreement reached.

5. The Government party provided its further submission on 24 March 2010 and 7 April 2010, circulated to all parties, on the proposed amendment to the tenement area including diagrams and a statement by Mr Scott Montgomery as follows:

   ‘I advise that the abovementioned tenement will be granted with the area excised as requested by Mr Crocker. The licence instrument will have a section that shows the land exclude (sic) from the grant, this information will be shown in there.

   The Mining Act 1978 allows the Minister for Mines and Petroleum to grant any portion of the land applied for to an applicant, other reasons for excisions in the grant of a tenement are prior applications that have priority, reserved land, land not available to applicants due to government policy and requests for excision by applicants.

   The excised area cannot be included back into the tenement unless there is a portion of the block still available to the application at which time they can apply for an Application to Amalgamate. This in effect starts a whole new future act process and the amalgamation will be required to be advertised under the expedited procedure.’

1. In accordance with the s 29 notice, the area of the tenement is 39.45 square kilometres which represents 12 blocks on the application for mining tenement provided in form 21, lodged by the grantee party with the Mining Registrar in Karratha on 12 December 2007. The amendment is to exclude 4 of those blocks which are located on the eastern boundary of the tenement application. This is represented in the diagrams of the Government party submission made on 24 March 2010. The request amends the boundary placing the DIA site 14376 outside the tenement application area. Consequently, the area the subject of the tenement application and the area the subject of this inquiry, is confined to the amended area.

2. The grant of the tenement 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 5-6 imposed require that the pastoral lessee is notified of the grant of the licences and of certain exploration activities. Condition 7 imposed requires that no interference with Geodetic Survey Stations MTE 52 to 54 and FK 55 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

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

   ‘In respect of the area covered by the licence the License (sic), the Licensee, if so requested in writing by the Wanjina-Wunggurr (Native Title) Aboriginal Corporation the holders of the rights and interests constituting the native title of the Wanjina-Wunggurr Wilinggin People recognized in Federal Court application no. WAD 6015 of 1999 (WC99/11) such a request being sent by pre-paid posts (sic) to reach the Licensee’s address at 76 Phillip Road, Dalkeith, WA 6009 not more than ninety days after the grant of their license, shall within thirty days of the request execute in favour of the Wanjina-Wunggurr (Native Title) Aboriginal Corporation such Regional Standard Heritage Agreement as may be endorsed by peak industry groups and 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 and 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:

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

   ·The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

Evidence provided by the native title party

1. The native title party’s Statement of Contentions was accompanied by a document entitled ‘Affidavit of Alfie White’. It was prepared in the normal affidavit form on the basis that it would be affirmed by Mr White. At the Listing Hearing held on 18 March 2010, the grantee party and the Government party had no objection to the unsworn affidavit being submitted as evidence by the native title party in the form of an unsigned witness statement. Mr White 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. I rely 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] which previously considered whether documents of a similar kind are admissible, and, on that basis accept the evidence of Mr White, particularly as it is uncontested.

2. The unsworn affidavit of Mr Alfie White, accepted as an unsigned witness statement, states:

   AFFIDAVIT OF ALFIE WHITE (AW Aff.)

   ‘I, Alfie White, of Ngallagunda Station, Gibb River Road in the State of Western Australia, affirm:

   1.My name is Alfie White. My Aboriginal name is Nalwud. I have Jugara and Onol skin. I was born at the old native hospital in Derby in 1951 on 18 August. My mother is Nru Nuru, she was born in the bush near Mt Barnett.

   2.I am member of the Wanjina-Wunggurr Wilinggin Native Title Determination Application (WAD 6015/99).

   3.I know the area where William James Crocker, “the grantee party”, has applied for Exploration Licence Number E80/4112, “the exploration licence area”, very well, because I have been shown a map of the application area. The map I was shown is attached to this affidavit and marked “A”.

   INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

   4.The exploration licence area falls on the Wanjina-Wunggurr Wilinggin determination application. I know the claim area very well because my place dumbun is there, for white people it’s a branding yard and aboriginal people call it Murrian. That is my dreaming place. Dad shot a kangaroo walambar, a red kangaroo when they were building that yard. That was me. If I wear shorts you can see the two black marks, where my dad shot the walambar.

   5.The area in and around the exploration license area is known is (sic) an important place. There are a number of important places in this area that are known to me and the rest of the Wanjina-Wunggurr Wilinggin native title holders.

   6.When we go to the exploration license area, there is a bore there. We go to check on the bore. We drive up and down that road all the time.

   7.There is good hunting in many parts of the exploration licence area. We hunt for red kangaroo walambar they live on the ridges and flat country. We also hunt for emu jabara, and goanna karriala which is the big dry goanna. By the creek we hunt binadi and mangar. Binadi are the big goanna, but mangar only grows so big and no more. Binadi and mangar bury themselves, but the karriala he goes in that hole in the red soil.

   8.We used to have dogs to hunt goanna and sometimes we hunt goanna without dogs. We follow the tracks. And with the walambar, there may have been five and people used to sneak up with spear on him.

   9.Today we hunt with a gun, with the white man’s way. You have to go with the wind, kangaroos can smell you they are smart. But the goannas are dumb, you can sneak up on them anytime. We go hunting as often as we can.

   10.With the jabara, the old people taught me that you can go any side of the wind. You have a bunch of leaves in front of you, so that he doesn’t see you. Then when the flies come around, you grab the fly and throw them to the emu, so he can’t see you. That fly will be busy in his eye, so he won’t see you and then you spear him. You got to get real close. But with a gun you get behind a tree and shoot them.

   11.We have bush turkey in that area as well, but when it’s time for eggs and for them to have little ones, we leave them alone.

   12.You don’t see many animals in the dry season, they keep to the water. But during the wet season you see them everywhere.

   13.We collect many different types of bush foods in and around the exploration license area. There is kunubari (bungjuli). It is a black berry, beautiful and sweet. We use the bark from kunubari trees to smoke little kids and babies to make them strong and for cold sick too.

   14.Also collect the little berries garra from the exploration license area. They are the little berries. When they start off they are green, then they turn yellow. When they are cooked it is red in colour. Bush turkeys and Emus eat them as well. But, humans love them.

INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

15.I know the exploration licence area very well, my dreaming is there. There are many places in my country, including inside the exploration licence area, which are very important and have great significance to the Traditional Owners.

16.Old Nugget (Gudut), who lives out at Mowamjum near Derby, and his family had a fire at the base of the hill, right inside the exploration license area. A long time ago some Oombulgarri people came over the hill and speared them. Old Nugget was about 8 when he took off. It is now a burial area. We put three mounds of rock and gravel just like a grave. We did this back in the mid 60’s. The main thing is that we don’t want mining to dig up that one.

17.On top, around the tenement area there is a cave painting, that rock goes around like an umbrella, you have to lie down and look up to see it. If you looked down from above you don’t see anything. It is a very special place. We still go there often.

18.We protect that area, Nugget’s area and the cave painting. It is an important place. Old people told us to look after that Country. We don’t want to upset them.

19.We are looking after all the important places in our country. We are passing on these stories to our young people. The fathers are telling these stories, to the youngfellas, so that they know their Country and look after it.

MAJOR DISTURBANCE TO LAND OR WATER

20.I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.

21.Strangers must ask for permission before coming onto my country because we have got a lot of very special places on my country, from our old-time people and from the early days. We are afraid if strangers arrive in our country uninvited. We know that strangers, especially the white man don’t follow our Law they just jump in anyway. They have to slow down and come and meet with us.

22.If stranger-blackfellas come to our country, they don’t muck around because they understand. If strangers damage a site, artifact or other important place or thing, we feel very upset you know. It’s like the same thing for country.

23.If blackfellas damage any important places or things in my country, they would get sick. We might hold a meeting with him and tell him not to touch that place again.

24.Strangers cannot help themselves to our country. They have to ask us first. If we say, NO, they must leave our country, but if we say, YES, they can talk with us. If they make money out of my country, they should give my community a little bit because they are taking something from our country, our land.

25.If we make an agreement with mining people, we will tell them where they can go on our country. If we say ‘Yes’ to drilling, we expect something to come back to us, like help making a road, and helping my community. This is because we are looking after this country.

26.We have won our Native Title and we have exclusive possession. We have native title so that we can protect our Country. If people want to come on to our country they do it the right way. They must ask permission from the Traditional Owners, and we want them to sign an Agreement so that we can protect the places and so that they respect our native title rights and interests.

1. The evidence of Mr White is uncontested and I accept it. Mr White is a native title holder of the Wanjina-Wunggurr Wilinggin Native Title Lands.  I accept that Mr White has the requisite authority to speak for country on behalf of the native title holders.  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 licence 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 evidence of Mr White establishes that he knows the claim area very well ‘because my place dumbun is there’.  A ‘dumbun’ in Mr White’s traditional law is a special place or ‘home’ for a clan or people, an own country which is often associated with Wanjina painting sites and membership of the dumbun carries with it rights in relation to the estate expressed with different degrees of emphasis and exclusivity (see Neowarra v Western Australia [2003] FCA 1402 at [204]). The story of Mr White’s father shooting a red kangaroo at Murrian (‘the branding yard’) where Mr White’s dumbun is located and his consequent birthmarks signify that Murrian is an area of great importance for him (AW Aff para 4).

5. The evidence of Mr White establishes that there is good hunting activity in many parts of the tenement area (AW Aff paras 7 to 12) which includes hunting for red kangaroo walambar, emu jabara, goanna karriala, big goanna binada and also mangar a smaller goanna and bush turkey. The evidence does not establish the frequency of those activities with any degree of specificity other than to state that ‘We go hunting as often as we can.’ (AW Aff para 9). The evidence also establishes the various ways in which hunting occurs including by seasonal variations and traditional and contemporary hunting practices.  Mr White has indicated that he resides at Ngallagunda Station which is located on the Gibb River Road, some eight kilometres south of the tenement application area, and consequently, easily accessible, certainly by vehicle.

6. The evidences establishes that many bush foods are collected, including kunubari (bunjuli) a black cherry, kunubari a bark from trees ‘to smoke little kids and babies to make them strong and for cold sick too’ and garra which are little berries (AW Aff para 13 to 14).  The frequency of this activity is not specified although overall the evidence does establish that the native title party visits the tenement area frequently, for example, Mr White refers to a bore in the tenement area which ‘We go to check on the bore. We drive up and down that road all the time’ (AW Aff para 6).  It is notable that the Gibb River Road passes through the middle of the tenement application area and it also passes very close to Ngallagunda Station and Mount Barnett Station, to the south.

7. There is also reference to community and social activities in paragraph 19 of Mr White’s affidavit which provides evidence of important places in the tenement area and how the fathers are telling the stories to the ‘youngfellas, so that they know their Country and look after it.’

8. The evidence of Mr White does not deal specifically with the frequency of the conduct of the community and social activities of hunting, gathering and teaching, which he has outlined in his affidavit.  However, the proximity of the tenement application area to the community in which he lives and its accessibility due to the tenement being traversed by the Gibb River Road, would suggest that it was at least possible for Mr White and his fellow native title holders to access the area frequently for the purposes they describe.  On the other hand, it is also possible to infer, from the evidence, that they would also access the rest of the area, which is the subject of their native title, in that vicinity, for similar purposes.  Further, as Mr White has suggested, hunting is better in the wet season than in the dry (AW Aff para 12).

9. 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.  In these circumstances, while I accept, on the evidence, that the native title party uses the area extensively for hunting and gathering and the other community and social activities that are referred to in the affidavit of Mr White, 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 area, after the amendment, is less than 39.45 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].

10. Taking all 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.

11. 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), 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))

1. In relation to this limb of s 237, 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 White attests, in his affidavit, that inside the tenement area there are many places ‘which are very important and have great significance to the Traditional Owners’ (AW Aff para 15).  Mr White then goes on to talk of three places which are of particular significance to him.  Firstly, his dreaming site, the dumbun (referred to at [31] above), known as Murrian and located at a branding yard (AW Aff para 4).  Secondly, he refers to an area in which Old Nugget, who now lives in Mowamjum, and his family, had an encounter with people from Oombulgarri a long time ago.  It is now a burial site which was established by Mr White and others in the 1960s.  Mr White states ‘The main thing is that we don’t want mining to dig up that one’ (AW Aff para 16).   Finally, Mr White refers to a cave painting in a rock that ‘goes around like an umbrella’ … ‘which is a very special place.  We still go there often’ (AW Aff para 17).

4. The evidence of the native title and Government party refers to the DIA site 14376, known as Wan Gan Gurr, which includes paintings and artefacts/scatters, which is on the DIA register.  That particular site is located at the north eastern top of the tenement application area and is within that area which has now been excluded from the tenement area to be granted.  The evidence of Mr White in relation to the cave painting on a rock that ‘goes around like an umbrella’ (AW Aff para 17), may or may not be a reference to that site on the register.  It may be that the site referred to by Mr White is the same site and consequently has been excluded from the area under consideration.  The use of the words ‘on top’ to introduce his evidence about the cave suggests it is at the top or northern end of the tenement where the registered site is located.  I should note that, at the time Mr White prepared his affidavit, he was unaware that the grantee party intended to exclude the area of that site from the area that is proposed to be granted.  As there is no other reference to a site involving cave paintings, it is probable, in my view, that the site that Mr White is referring to is the same site as that which is on the Register. 

5. The site of the branding yard, at which Mr White’s dumbun is located, is within the area of the grant of the tenement on its western side.  The location of the burial area may or may not be in the area currently under consideration, but for the purposes of my assessment, I will assume that it is within that area. 

6. The evidence provided by the native title party in relation to these sites is uncontested, although their specific location is unclear.  Nevertheless, I am satisfied that for the purposes of this determination, the cave in the shape of an umbrella, is a site of particular significance to the native title party in accordance with their traditional laws and customs.  However, as I have concluded that the site of the cave is outside the area of the proposed tenement, it need not be further considered.  The site of the area of Mr White’s dumbun is clearly of particular significance to him as his dreaming place.  However, the evidence that he has provided does not establish that it is a site of particular significance to the native title holders as a whole. 

7. Mr White tells the story in his affidavit about the area where Old Nugget and his family were attacked by Oombulgarri people and which he and others created three mounds of rock and gravel to cover the burial area in the 1960s, adding ‘The main thing is that we don’t want mining to dig up that one’ (AW Aff para 16). Graves and cemeteries are of great importance in most cultures and it is of great importance to protect and preserve them. However, in this instance, and for the purposes of s 237(b) of the NTA, it does not seem to me that that burial site is one of particular significance to the native title holders. That been said, it would appear to be the case that the burial site, is a site which would be protected by the AHA. By virtue of these proceedings the grantee party now has notice of the existence of such a site within the tenement area and should take the necessary precautions.

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 area as amended 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 affidavit of Mr White expresses concern that if the grantee party enters the area of the tenement without permission and ‘If strangers damage a site, artifact or other important place or thing, we feel very upset you know.’ ‘Strangers cannot help themselves to our country. They have to ask us first’ (AW Aff para 22 and 24). 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 too 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 licence E80/4112 to William James Crocker is an act attracting the expedited procedure.

Daniel O’Dea
Member
30 April 2010