Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v John Williams
[2018] NNTTA 9
•28 February 2018
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v John Williams and Another [2018] NNTTA 9 (28 February 2018)
Application No: | WO2017/0314 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (WCD2002/002)
(native title party)
- and -
John Williams
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 28 February 2018 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – non-disclosure directions – the act is an act attracting the expedited procedure |
Legislation: | Native Title Act 1993 (Cth) ss 109, 151, 155, 237 Mining Act 1978 (WA) s 66 Aboriginal Heritage Act 1972 (WA) s 5, s 18 Mining Regulations 1981 (WA), reg 20 |
Cases: | Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Lungunan v Geotech International’) Freddie v Western Australia (2007) 213 FLR 247; [2007] NNTTA 37 (‘Freddie v Western Australia’) James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 (‘James v Western Australia’) Peterson v Western Australia [2013] FCA 518 (‘Peterson v Western Australia’) Rosas v Northern Territory [2002] NNTTA 113; (2002) 169 FLR 330 (‘Rosas v Northern Territory’) Silver v Northern Territory [2002] NNNTA 18; (2002) 169 FLR 1 (‘Silver v Northern Territory’) Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley v Western Australia’) Western Australia/Winnie McHenry on behalf of the Noongar People [1999] NNTTA 210 (‘Western Australia v McHenry’) Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v John Williams and Others [2017] NNTTA 2 (‘Western Desert Lands Aboriginal Corporation v Williams’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representative of the native title party: | Ms Sarah Cimetta, Yamatji Marlpa Aboriginal Corporation |
| Representative of the grantee party: | Mr John Williams |
| Representatives of the Government party: | Ms Emily O’Keefe, State Solicitor’s Office Mr Michael McMahon, Department of Mines, Industry Regulation and Safety |
REASONS FOR DETERMINATION
This is a decision about whether or not the expedited procedure applies to the proposed grant of exploration licence E45/4568 (the licence) to Mr John Williams (Mr Williams). The State of Western Australia considers the grant of the licence is an act attracting the expedited procedure. By including the expedited procedure statement in their notice of the proposed grant, the State asserts the activities permitted under the licence are not likely to have the effects outlined in s 237 of the Native Title Act 1993 (Cth) (the Act). That is, the State asserts the grant is not likely to:
·interfere directly with community or social activities carried on by members of native title claims or determined areas;
·interfere with areas or sites of particular significance in accordance with traditions of the native title claimants or holders; or
·involve, or create rights whose exercise is likely to involve, major disturbance to the land and waters concerned.
The President of the National Native Title Tribunal, Raelene Webb QC, appointed me to conduct an inquiry and determine whether the expedited procedure applies.
The licence covers approximately 2,862 hectares in the Shire of East Pilbara. The State have noted in their contentions that only 1,209.27 hectares are available for grant as the remainder of the area applied for is overlapped by existing live tenements, and as such, cannot be granted. The Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (WDLAC) hold exclusive native title rights and interests on behalf of the common law native title holders over the whole licence area. These native title holders, the Martu people, are identified in two native title determinations, James v Western Australia and Peterson v Western Australia. WDLAC exercised their right to lodge an objection against the State's assertion that the expedited procedure applies, and argue the expedited procedure should not apply as interference or disturbance with one or more of the s 237 criteria is likely. Mr Williams argues the expedited procedure should apply.
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, Mr Williams and the State must negotiate in good faith with a view to reaching an agreement with WDLAC about the proposed grant of the licence.
I must base my decision on the s 237 criteria. The issues I need to determine in relation to these criteria are:
a)Is the grant of the licence likely to interfere directly with the community or social activities of WDLAC?
i.What are the community or social activities?
ii.What are the grantee party’s proposed activities?
iii.Is the grant of the licence likely to interfere directly with the community or social activities of WDLAC?
b)Is the grant of the licence likely to interfere with areas or sites of particular significance to WDLAC?
i.What areas or sites have WDLAC identified in relation to the licence area?
ii.Are any of the sites identified areas of particular significance to WDLAC?
c)Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
In answering these questions, I must make a predictive assessment. I look at what is likely to occur as a result of the grant and decide whether there is a real chance 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]). For the reasons outlined below, my determination is that the expedited procedure does apply.
Preliminary evidentiary matters
The native title party material
WDLAC submitted a statement of contentions, attaching the affidavits of Mr Stephen Morgan and Ms Sarah Bell, together with a document titled: ‘A Report about the Cultural Significance of country within Tenement E45/4568’ (the Bell-Gonda Report) prepared for WDLAC by Ms Sarah Bell and Ms Zsuzsanna Gonda.
Mr Morgan is an anthropologist currently employed by WDLAC who states he has done fieldwork with many Aboriginal groups in the Pilbara and Murchison and is familiar with the area surrounding the licence. Ms Bell is also an anthropologist currently employed by WDLAC who states she worked as a researcher on a number of the native title claims adjacent to and/or to the south of the Martu determination area. Ms Bell says that she has developed a particular knowledge and understanding of both the classical Martu hunter-gatherer society and of their contemporary cultural life, including a broad understanding of the mythological and cultural landscape of that region of the Western Desert. Ms Bell co-authored the Bell-Gonda Report. I accept the experience of Mr Morgan and Ms Bell and that the evidence presented relates to the native title holders and the licence area.
In accordance with Amended Directions (Direction 5) made 11 January 2018, WDLAC submitted in reply a further report titled: ‘A provision of additional evidence in relation to tenement E45/4568’ prepared for WDLAC by Ms Zsuzsanna Gonda and Mr Stephen Morgan (the Gonda-Morgan Report) together with the signed statements of Martu elder Desmond Taylor (Taylor statement) declared 13 April 2016 and submitted in relation to objection application WO2015/0911; and, the joint statement of elders Kevin Fred and Kenny Thomas (Fred-Thomas statement) declared 23 March 2016 and submitted in relation to objection application WO2015/0926. Annexed to the statements are two maps marked ‘JW1’ and ‘JW2’. Objection applications WO2015/0911 and WO2015/0926 were determined in Western Desert Lands Aboriginal Corporation v Williams.
Mr Taylor and Mr Thomas state they are senior initiated Martu men and current directors of WDLAC (Jamukurnu-Yapalikunu) RNTBC. Mr Fred states he is a senior initiated Martu man and is currently employed as a WDLAC liaison officer. I accept Mr Taylor, Mr Thomas and Mr Fred have authority to speak for the native title holders for the licence area.
WDLAC applied for non-disclosure directions under s 155 of the Act in relation to the elder’s statements and mapping material, as well as for the Gonda-Morgan Report. As with Western Desert Lands Aboriginal Corporation v Williams, I was satisfied that it was appropriate that directions be made restricting the parties’ use of that information. While I have considered that evidence, I refer to it specifically in this decision only to the extent I need to make my reasons clear.
The grantee party material
Mr Williams provided a statement of contentions together with: a map of the licence area depicting the area of interest and the areas not required; a list of exploration reports extracted from the State Government’s mineral exploration database (WAMEX) that cover the licence area; a map depicting ‘Geochem’ locations for the licence; and a map depicting drill hole locations on the licence area.
Mr Williams did not provide any reply to the contentions and evidence provided by WDLAC pursuant to Direction 5 as he was entitled to do in accordance with Direction 6.
The Government party material
The Government party evidence, contentions and documents indicate that: the licence area (that is available for grant) is 1209.27 hectares and the Aboriginal sites database shows no registered sites or other heritage places in the licence application area. The area is 100% ‘vacant Crown land’, 100% the subject of determinations of native title, 100% the subject of an Indigenous Land Use Agreement (Lake Disappointment Project Mining and Indigenous), and been the subject of a number of tenements. The initial term of grant is five years, and is renewable. The Government party state in their contentions that a condition will be placed on the grant of the licence that WDLAC may request and the grantee party shall execute a Regional Standard Heritage Agreement (RSHA) within certain timeframes.
Having considered the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’ as permitted by s 151 of the Act, without the need for an oral hearing. All parties indicated they were happy to proceed on the papers.
(a) Is the grant of the licence likely to interfere directly with the native title holders’ community or social activities?
What are the community or social activities?
WDLAC contend the licence is located in a region of dense cultural meaning to the Martu people. They state the Martu community continue to undertake a range of tradition based land management practices and social activities in and around the licence area including traditional camping, hunting and gathering natural resources and burning activities along the southern extent of the Karakutikati Ranges south of Telfer. They assert the significance of being on country for the Martu community is ‘not merely social, recreational or economic in nature, but is also an enactment in cultural responsibilities that are set down according to the Tjukurrpa’.
Ms Bell deposes that she co-authored the Bell-Gonda Report “which provides as (sic) assessment of the community activity and the cultural significance of the country where Tenement E45/4568 is located”. While the Gonda-Bell report is not annexed to Ms Bell’s affidavit, the report is separately provided with the WDLAC contentions and evidence. The Bell-Gonda Report was produced through a desktop review of a variety of sources including an undated and unsigned statement of Evelyn Mitchell (the content of which would appear to be the same as the statement declared 24 March 2016 and provided in objection inquiry WO2015/926 concerning an adjacent prospecting licence application).
At paragraph [14] of the Bell-Gonda Report it is said: “Community activities carried out within Tenement E45/4568 and the surrounding area are ordered by belief systems and law handed down from the Tjukurrpa, on country activities emulating the creative forces of the ancestral beings across the landscape.”
The Bell-Gonda Report references passages from Western Desert Lands Aboriginal Corporation v Williams and suggests that community or social activities existing in the tenement areas under consideration in that matter extend to the area of tenement E45/4568.
Caring for country
WDLAC rely on the material described at [7]-[9] above which includes evidence submitted in Western Desert Lands Aboriginal Corporation v Williams in relation to two adjacent tenements to the north west and south east (one prospecting licence and one exploration licence). As I observed in Western Desert Lands Aboriginal Corporation v Williams at [20], Martu describe a range of ‘caring for country’ activities, including a ranger program organised through another Martu organisation, Kanyirninpa Jukurrpa. The elders state that traditional burning ‘keeps the country healthy’ by promoting the regrowth and regeneration of vegetation, and facilitates traditional activities by opening up tracks and flushing out or attracting animals for hunting. The evidence of Mr Taylor, in particular, emphasises the close relationship between traditional burning, Martu cultural beliefs and land management practices, and other traditional activities such as hunting and gathering medicinal plants. This is further explained in the Gonda-Morgan Report at paragraphs [19]-[25].
WDLAC state the rangers and Martu elders continue to practice tradition-based burning activities over large expansive areas within Martu country, including portions of Karakutikati Ranges within the licence (as depicted in annexures ‘JW1’ and JW2’ to the Fred-Thomas statement). They say burning activities have specific meaning to the Martu people, tied to the Tjukurrpa and renewal of country. Disturbance of the Tjukurrpa through the disruption of burning activities can have serious consequences for the Martu community. Mr Taylor states rangers regularly burn the country after the wet season ‘during the winter time starting from about May to August before law time’.
Evidence presented relating to traditional burning in the region was described at paragraphs [21]-[24] of Western Desert Lands Aboriginal Corporation v Williams. Relevant to the present matter (and referred to at [16] of the Morgan affidavit) at paragraph [39] of the Fred-Thomas statement, specific mention is made of the Karakutikati Ranges. Specifically, ‘We burn this country by starting along the bottom of the ranges (Karakutikati Ranges). Those ranges got their name from the kirti-kirti – our Pitjikarli totem.’ Mr Morgan says this area of country (the Karakutikati Ranges) is within tenement E45/4568.
The Karakutikati Ranges are depicted on a number of the maps in evidence including: JW1; JW2; Annexure 1 to the Government Party’s Statement of Contentions in Response to the Contentions of the Native Title Party; and annexed to the Affidavit of Stephen Wayne Morgan. While not a topographical map, the Annexure to the Government party’s contentions indicates that the Karakutikati Ranges dissect the northern portion of the application area at an angle of roughly 45 degrees. The map also shows the areas of the application area which are available for grant. The map annexed to Mr Morgan’s affidavit shows the external boundary of the application area, the Karakutikati Range, and a roughly rectangular area south of the range marked ‘burning off area’.
Hunting and gathering
WDLAC state they engage in hunting and gathering natural resources over the licence area. The evidence submitted in relation to hunting and gathering concerns the two adjacent licences subject to Western Desert Lands Aboriginal Corporation v Williams. In his statement Mr Taylor says the exploration licence area (in Williams) has places where they camp, hunt, collect and gather bush tucker and medicines, and there are also ceremonial and burial grounds in the area. Ms Bell refers to Martu elder Evelyn Mitchell, who describes the ongoing use of country in the adjacent prospecting licence as collecting bush tucker. Ms Bell contends that grant of the licence will impact the hunting and gathering activities over the tenement.
I accept the Martu community undertake traditional camping, hunting and gathering natural resources in and around the licence area, but their contentions are not specific to the licence area and do not provide evidence in support that the grant of the licence will interfere directly with these activities.
What are the grantee party’s proposed activities?
I note 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 1,000 tonnes of material from the licence area (Regulation 20, Mining Regulations 1981).
Mr Williams states his intended exploration work program will be low impact, and will involve: data compilation, data review of the vast information already available on the WAMEX system, geophysical modelling, data collection by foot and soil sampling by foot. He says that he will access the licence by existing tracks, and ‘any further activity will depend on the findings of the initial exploration work’. Mr Williams explains the field exploration program(s) will run for three weeks. He notes WDLAC’s concerns regarding interference with traditional burning activities and states that he is happy to consult with Kanyirninpa Jukurrpa and Martu representatives.
Mr Williams says he is the registered owner of two adjacent active licences with ongoing work programs.
Mr Williams says because of existing granted tenements (within the external boundary of E45/4568) there are only three areas which can be granted comprising a total area of 1,209.27 hectares (GVP Contentions [3]). Of those three areas Mr Williams says only one is an ‘area of interest’. Attached to Mr Williams Statement of Contentions is a map showing the external boundary of tenement application E45/4568; the three areas available for grant; the area identified as ‘area of interest’; and, the areas identified ‘area not required’. The ‘area of interest’ is in the northern portion of the licence area.
The State proposes to grant the licence subject to ten endorsements and two conditions (Annexure 4 of their contentions). The State also proposes to include the condition described at [11] of the Government Party’s contentions requiring the grantee party to execute a Regional Standard Heritage Agreement should one be requested by WDLAC, and that relevant timeframes be met. The State note the area of the proposed licence has been subject to prior mineral exploration and possibly mining activity. The State contends the exploration activities planned by Mr Williams are not likely to have any real disruptive effect upon any community or social activities, and Mr Williams has indicated a willingness to consult with WDLAC. It also states WDLAC has the opportunity to invoke the proposed RSHA condition.
Is the grant of the licence likely to interfere directly with the community or social activities of WDLAC?
The Government party at contentions [39] ‘accepts the activities described by reference to the NTP’s evidence at paragraph [37] are activities of the kind contemplated in s 237(a) of the NTA’. Paragraph [37] is as follows:
The Cultural Significance Report explains in more detail tradition-based practices and social activities conducted by the Martu community within and surrounding the proposed tenement. The Report relies on evidence referred to in the Williams decision, anthropological references, Ms Mitchell’s 2016 statement (an unsigned version is attached to the Report) and advice from Mr Morgan. The Report states the Martu people carry out the following:
(a) a range of caring for country activities such as the maintenance of waterholes and burning of country undertaken to keep country healthy;
(b) collecting bush tucker all year round/in the wet season and hunting within P45/2983 which is adjacent to the proposed tenement;
(c) showing the young ones where the ancestors camped, telling them stories near Hamish’s Cave and making wanna or punna or wirni;
(d) camping, hunting, collecting bush tucker and medicines, making spears and teaching the songline with E45/4557 which is adjacent and to the south and east of the proposed tenement; and
(e) tradition-based burning activities over large expansive areas within Martu country, including the western portion of the tenement.
This statement is qualified at [38] by stating that the evidence provided by the native title party regarding burning, hunting, gathering bush tucker and bush medicine, camping and other traditional activities ‘is of a general nature, with limited evidence as to the frequency and intensity’. They also say that the native title party evidence outlines the nature of some activities conducted on or near the proposed tenement, but not how the grant of the proposed tenement is likely to interfere with those activities.
I accept WDLAC undertakes traditional burning activities over a portion of the licence area. To find interference is likely in accordance with s 237(a) of the Act, there must be a direct and substantial interference with community or social activities (see Yindjibarndi Aboriginal Corporation v FMG Pilbara at [16]). The Tribunal must balance a native title party’s evidence of community or social activities against a grantee party’s proposed exploration activities and may conclude the activities can coexist without direct or substantial interference (see for example, Rosas v Northern Territory at [71]).
The Government party at [35] of their contentions “accepts some of the “Burning Off Area” identified in the map attached to the Morgan Affidavit corresponds with the area available for grant within the proposed tenement”.
As discussed at [23] above the Karakutikati Ranges are depicted on a number of the maps in evidence including: JW1; JW2; Annexure 1 to the Government Party’s Statement of Contentions in Response to the Contentions of the native title party; and annexed to the Affidavit of Stephen Wayne Morgan,
The map annexed to the Government party’s contentions indicates that the Karakutikati Ranges dissect the northern portion of the application area at an angle of roughly 45 degrees. The map also shows the areas (of the application) which are available for grant. The map annexed to Mr Morgan’s affidavit shows the external boundary of the application area, the Karakutikati Range and a roughly rectangular area on the southern side of the range marked ‘burning off area’. Attached to Mr Williams Statement of Contentions is a map showing the external boundary of tenement application E45/4568; the three areas available for grant; the area identified as ‘area of interest’; and the areas identified ‘area not required’.
If the map at Annexure 1 to the Government party contentions, the map annexed to Mr Morgan’s affidavit and the map at Attachment 1 to the grantee party contentions are superimposed then the overlap between the ‘burning off area’ as identified by WDLAC and the ‘area of interest’ as identified by Mr Williams is in the south west portion of the ‘area of interest’ is relatively small.
The State contends the Bell-Gonda Report ‘fails to meaningfully engage with the grantee party’s contentions’ regarding Mr Williams’ intention to organise his exploration activities to avoid WDLAC’s burning activities. The State says that the area where burning is said to take place includes one of the three parts of the proposed licence which are available for grant. It says there is no reason why the grantee party could not avoid WDLAC’s burning activities given this information.
Conclusion
I find there is insufficient evidence to conclude that Mr Williams’ proposed exploration activity might interfere with WDLAC’s burning activities. As stated at [37], the overlap of the ‘burning off area’ as identified by WDLAC with the grantee party’s ‘area of interest’ is relatively small. Mr Williams has indicated that he is aware of WDLAC’s concerns about interference with traditional burning activities and is happy to consult with Kanyirninpa Jukurrpa and Martu representatives. Mr Williams has also indicated that any field work program(s) will only run for three weeks. As WDLAC have indicated traditional burning activities occur for approximately four months of the year, I am satisfied with the proper consultation these activities can be avoided by Mr Williams.
I cannot conclude that Mr Williams’ exploration activity will lead to direct and substantial interference with hunting and gathering. The evidence provided by WDLAC is limited and is not specific to the licence area. WDLAC do not provide evidence supporting the proposition that the grant of the licence will interfere directly with these activities.
I am of the view that the exploration activities of Mr Williams are not likely to interfere with the practices of WDLAC within the meaning of s 237(a).
(b) Is the grant of the licence likely to interfere with areas or sites of particular significance to the native title holders?
An area or site of ‘particular significance’ is one of special or more than ordinary significance to the native title holders in accordance with their traditions (see Cheinmora v Striker Resources at 34–35). If an area or site is one of particular significance, it must be known and able to be located, and the nature of its significance explained (see Silver v Northern Territory at [91]).
What areas or sites have WDLAC identified in relation to the licence area?
The evidence must identify an area or site exists on the licence; explain its significance and distinguish it from other areas within the licence; and show it is of more than ordinary significance to the native title holders in accordance with their traditions. These requirements are preconditions of an inquiry into whether the grant of the licence is likely to cause interference with areas or sites of particular significance (Yindjibarndi Aboriginal Corporation v FMG Pilbara at [17], [125]).
WDLAC states there are a number of significant Tjukurrpa and songlines throughout the area of the licence, including male restricted Wati Kujarra Tjukurrpa (Two Men Dreaming) and associated with Walawalangu (initiation rituals). They say the Wati Kutjarra are manifest in a number of significant registered and unregistered places in the vicinity of the licence, including Karakutikati Ranges, Irramindi (Telfer) and Makiglki (Hamish’s Cave). I note that Irramindi and Makiglki are located outside of the licence area, approximately 3 kilometres to 10 kilometres north-west.
Are any of the identified areas or sites of particular significance to WDLAC?
Results from the Department of Aboriginal Affairs’ Aboriginal Heritage Inquiry System show there are no registered sites within the licence area. Hamish’s Cave is a registered site located outside of the licence. It is well established that a site or area may be of particular significance without being recorded on the Register of Aboriginal Sites (see Little v Lake Moore Gypsum at [67]). The word ‘particular’ in s 237(b) not only means ‘special or more than ordinary’ but that the particularity of the significance must be capable of identification (Western Australia v McHenry).
Tjukurrpa and songlines
WDLAC state the Wati Kujarra are known by Martu people as ‘travellers who left extensive dreaming tracks throughout Martu country and beyond’. The say the Wati Kujarra Tjukurrpa is one of the key foundational myths for Western Desert people and its rituals associated with male initiation. WDLAC’s submissions include reference to the Wati Kujarra Tjukurrpa and Walawalangu story and the restriction on disclosure of site locations within the vicinity of the licence. WDLAC states impacts on the sites will have effects on the Wati Kujarra songlines throughout the surrounding landscape. As indicated in evidence for Western Desert Lands Aboriginal Corporation v Williams, both Hamish’s Cave and Irramindi soak, specific manifestations of the Tjukurrpa, are in close proximity, however not located in the licence area.
WDLAC’s evidence makes reference to the mythological tracks and the restriction on disclosure of site locations and story details within the vicinity of the licence area. The paths of the songlines have been briefly described in the Fred-Thomas statement, however it is unclear as to whether this relates to the licence area or an adjacent prospecting licence for which the evidence was produced.
The Government party contends WDLAC’s evidence regarding other Tjurkurrpa sites is general and not sufficient to establish that sites within the licence areas or sites of particular significance. They assert the evidence suggests that the Dreaming and songlines within the licence area ‘might be deemed to be generally significant as opposed to particular sites identified to be specific culturally significant areas of particular significance under s 237(b)’.
Mr Williams contends WDLAC’s evidence is general rather than specific and relates to areas outside of the licence area. Mr Williams states he has demonstrated his commitment to protect heritage by offering the RSHA and understands the conditions under the Aboriginal Heritage Act 1972 (the AHA).
Although the Tribunal has previously found that dreaming tracks can be regarded as areas or sites of particular significance (see Freddie v Western Australia at [45]-[47]; Lungunan v Geotech International at [41]), the evidence in this instance suggests the dreaming and songlines within the licence area appear to be generally significant rather than sites identified to be of particular significance under s 237(b).
Karakutikati Ranges
WDLAC state the southern Karakutikati Ranges, located within the licence, are considered significant to the Martu people because of their association with the Wati Kujarra Tjukurrpa. The authors of the Bell-Gonda Report at [39] note that they did not have access to certain restricted material and stated that ‘it seems that the Karakutikati Ranges are considered significant to the Martu People, because of their association with the Wati Kajarra Tjukurrpa’, but say that Mr Morgan reviewed the restricted evidence and confirmed the specific significance of the Karakutikati Ranges. Subsequently in the Gonda-Morgan Report (provided as part of the Native Title Party reply), where the authors had accessed restricted material, they identify evidence which explains the association of the Karakutikati Ranges with the Wati Kutjarra Tjukurrpa.
Mr Morgan says in his affidavit that any damage to the Karakutikati Ranges would be ‘detrimental to the Martu people and would also damage the reputation of Martu elders beyond the boundaries of their Native Title area’. Further, in the Gonda-Morgan Report the authors say at [11]: ‘Inappropriate access to country, especially places of significance can result in real dangers for the Martu community and visitors’. The evidence to support the statement was given in the context of gender restricted places associated with the Walalwalangu within and around another tenement however, the obligation of the traditional owners is the protection of country, the responsibility to protect the places and keep ritual strong. The authors talk about culturally appropriate access and the need for a culturally appropriate agreement. They contend non ground disturbing activities such as culturally unauthorised access to places can have major ramifications for the community and those interfering with such places.
WDLAC states that these ranges have only been subject to minimal heritage surveying in the 1970s (an area measuring approximately 300 metres in diameter), with the majority of the area remaining unsurveyed. Ms Bell states in the Bell-Gonda Report that ‘in our opinion it is likely sites that may be of significance to Martu people will be interfered with or damaged if the tenement is granted’.
The authors of the Bell-Gonda report also say at [40] that although heritage surveying and significant assessments have not taken place, the Karakutikata Ranges and surrounding area are regularly visited by the Martu people during on country activities such as traditional burning. They conclude that ‘given the archaeological record of the surrounding landscape … along with the typology and hydrography of the Karakutikati Ranges, it is highly probably that unrecorded archaeological sites, such as camping places and artefact remains will be present in the tenement area…’. There is little specific evidence concerning visitation to the Karakutikata Ranges apart from visitation associated with traditional burning which occurs at the bottom of the southern side of the ranges as discussed earlier.
At section 1.5 of the Bell-Gonda Report the authors refer to a 1975 ethnographic and archaeological investigation which included a small portion of the Parallel Ranges (also known as the Karakutikati Ranges). They note that this is the only known heritage assessment of the country within E45/4568. At [47] they say that Hastie’s investigation largely focussed on the cultural value of rock shelters within the Patterson Range, Njiru Range, Parallel Ranges and Mount Crofton which contain multiple etchings and paintings with particular ethnographic significance to the Martu people.
The Government party contentions at [67] say that ‘evidence that is too general as to location will not allow the Tribunal to make a finding of particular significance in respect of the alleged sites or areas’. The State contends the evidence falls short of establishing that the whole of the Karakutikati Ranges is an area or site of particular significance to WDLAC within the meaning of s 237(b). In the Government party’s reply, it notes that WDLAC consider the Karakutikati Ranges an area or site of particular significance due to an association with the Wati Kujarra Tjukurrpa, yet the Taylor statement does not mention the Ranges when detailing the pathway of Dreaming tracks in the area. It contends it is not possible to verify if the Dreaming tracks come close to the Karakutikati Ranges given that a map depicting this has not been provided. It asserts that even if there is an overlap, ‘the mere fact that the path of the Tjukurrpa may cross the range of hills does not…make that area an area or site of particular significance’.
I agree with the Government party’s contention that WDLAC’s evidence falls short of establishing that the whole of the Karakutikati Ranges is an area or site of particular significance. In regards to possible sites within the Ranges, I will address these contentions below. WDLAC states the Ranges are considered significant because of their association with the Wati Kujarra Tjukurrpa, however, as stated at [50] the evidence suggests the dreaming and songlines within the licence area appear to be generally significant rather than sites identified to be of particular significance. Based on the evidence before me, I am unable to conclude that the Karakutikati Ranges are an area or site of particular significance to WDLAC within the meaning of s 237(b).
Cave paintings and other sites
The Aboriginal Heritage Inquiry System (AHIS) material attached to the Bell-Gonda Report references a report by J Hastie entitled: ‘Report on the Aboriginal Cave Paintings and Artefacts in the Telfer Region’. The ‘area description’ was recorded as: ‘The survey area consists of various locations in the Patterson Range Telfer region. See figures 1-8.’ Figures 1-8 were not included in the material.
In his affidavit at [11] Mr Morgan says: ‘The enquiry with the AHIS revealed that during the survey by Hastie (see attached AHIS report) a number of Aboriginal cave paintings were recorded which have not been registered as Aboriginal sites including an area in the north of E45/4568’. In the absence of any other evidence it would seem that the conclusion Mr Morgan draws that there are Aboriginal cave paintings in the area of the Karakutikati Ranges which is within E45/4568 is based on the information at [47] and [48] above. In the absence of other evidence, I don’t think that such a conclusion can be compelling.
It appears that the existence of cave paintings in the area of the Karakutikati Ranges within the area of E45/4568 is speculated, and, without any confirmation of their existence, their location, and evidence of their particular significance, I cannot conclude that they are sites of significance for the purposes of s 237(b).
In relation to other possible unrecorded archaeological sites, again, without any confirmation of their existence, their location and evidence of their particular significance, I cannot conclude that they are sites of significance for the purposes of s 237(b).
Conclusion
Because I find there is insufficient evidence to conclude that there are areas or sites of particular significance to the Martu people within the meaning of s 237(b) on the licence area, I do not need to consider whether interference is likely. Nonetheless, I note that the State proposes to impose a RSHA condition on the grant (as stated at [14]). Even though the Tribunal is not satisfied there are any areas or sites of particular significance, Mr Williams will still have obligations under the AHA. Again I note he has indicated a willingness to consult with WDLAC, and has advised his field program(s) will only run for three weeks.
(c) Is the grant of the licence likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned?
Section 237(c) was one of the grounds raised in WDLAC’s initial objection, but was not pursued in submissions and the evidence does not specifically address the issue of major disturbance. The State contends that while the evidence produced by WDLAC speaks of the impacts on the enactment of the Tjukurrpa, which is considered central to the ongoing health and wellbeing of country, this is not a major disturbance to land or waters. I have given weight to the conditions which the State intends to impose requiring Mr Williams to seek departmental approval before undertaking ground disturbing activity using mechanised equipment and to rehabilitate any disturbances to the land following the completion of exploration.
I do not consider there to be any evidence in support of a conclusion that the grant of the licence is likely to involve, or create rights whose exercise is likely to involve, major disturbance to land or waters.
Determination
My determination is that the grant of E45/4568 to John Williams is an act that attracts the expedited procedure.
Mr JR McNamara
Member
28 February 2018
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