Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v John Williams
[2017] NNTTA 2
•25 January 2017
NATIONAL NATIVE TITLE TRIBUNAL
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v John Williams and Others [2017] NNTTA 2 (25 January 2017)
| Application No: | WO2015/0911 and WO2015/0926 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC
(native title party)
- and -
John Williams
(first grantee party)
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David John Hutson
(second grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara, Member |
Place: | Brisbane |
Date: | 25 January 2017 |
| Catchwords: | Native title – future acts – proposed grant of prospecting licence and exploration licence – expedited procedure objection applications – gender-restricted evidence – whether acts are likely to interfere directly with community or social activities – traditional burning – whether acts are likely to interfere with areas or sites of particular significance – important men’s site – intentions of grantee party – whether acts are likely to involve major disturbance to land or waters |
| Legislation: | Native Title Act 1993 (Cth), ss 32(4), 237 Mining Act 1978 (WA), ss 28, 30 Aboriginal Heritage Act 1972 (WA) Mining Regulations 1982 (WA), reg 14, 20 |
| Cases: | Albert Little & Others on behalf of Badimia/Western Australia/Lake Moore Gypsum Pty Ltd [2012] NNTTA 56 (‘Little v Lake Moore Gypsum’) Champion v Western Australia (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion v Western Australia’) Cheinmora v Striker Resources NL; Dann v State of Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’) Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 (‘Lungunan v Geotech International’) Dann v Western Australia (1997) 74 FCR 391; [1997] FCA 332 (‘Dann v Western Australia’) David Smirke and Others on behalf of the Jurruru People/Western Australia/Aurora Resources Pty Ltd [2009] NNTTA 142 (‘Smirke v Aurora Resources’) 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’) Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (‘Little v Oriole Resources’) Peterson v Western Australia [2013] FCA 518 (‘Peterson v Western Australia’) Silver v Northern Territory of Australia (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’) Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v WA Mining Resources Pty Ltd and Another [2015] NNTTA 41 (‘Tarlka Matuwa Piarku v WA Mining Resources’) Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘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 Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘WDLAC v Teck Australia’) WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘WF v Emergent Resources’) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’) |
| Representatives of the native title party: | Matthew Kinder, Western Desert Lands Aboriginal Corporation |
| Representative of the grantee party: | John Williams |
| Representatives of the Government party: | Domhnall McCloskey, State Solicitors Office Bethany Conway, Department of Mines and Petroleum |
REASONS FOR DETERMINATION
The State of Western Australia has provided notice of its intention to grant a prospecting licence (P45/2983) to Mr John Williams (first grantee party) and an exploration licence (E45/4557) to Mr Williams and Mr David John Hutson (second grantee party) (together, ‘licences’). The proposed licences are situated south-west of Telfer in the State’s East-Pilbara region. The exploration licence covers 56,235.64ha (per overlap analysis) which is approximately 36km south-west of Telfer, and the prospecting licence covers 121.93ha (per overlap analysis) which is approximately 16km south-west of Telfer. The prospecting licence is approximately 8km to the north-west of the exploration licence’s western-most boundary. The State included an expedited procedure statement in their notice about the grants.
The two licences are wholly situated within the area for which the Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC (‘WDLAC’) holds exclusive native title rights and interests on behalf of the common law native title holders. These native title holders, the Martu people, are identified in two native title determinations, James v Western Australia and Peterson v Western Australia. WDLAC, as the relevant native title party for the purposes of the future act provisions of the Native Title Act 1993 (Cth), exercised its right to lodge an objection to the inclusion of the expedited procedure statement with the National Native Title Tribunal (‘Tribunal’). I have been appointed by the President of the Tribunal, Raelene Webb QC, to conduct an inquiry to determine whether or not the expedited procedure applies.
If an act attracts the expedited procedure, the licences can be validly granted by the State without the requirement for negotiation between the State, the grantee parties and WDLAC (see Native Title Act, s 32(4)). A decision that the expedited procedure does not apply means the normal negotiation procedure is required. In those circumstances the State and the grantee parties must negotiate in good faith with WDLAC, with a view to reaching an agreement about the grant of the licences.
In accordance with Directions made in the inquiry, the State, the grantee parties and WDLAC provided contentions in respect of whether the expedited procedure applies to each of the licence applications. The grantee parties in their contentions provide similar evidence in respect of the activities that will be conducted on each licence. The proposed activities as described by the grantee parties in both matters are similar and within the scope of the authority granted under the licences, notwithstanding the significant disparity in the size of the licence application areas. Due to the geographical proximity of both licence areas, and the similarity in the evidence provided by the grantee parties and WDLAC for the purposes of the inquiry, with the concurrence of the parties, I decided to hold this inquiry on the papers and determine the objections together.
On receipt of an objection, the Tribunal must conduct an inquiry to determine whether the proposed grant attracts the expedited procedure. It must do so by reference to the following criteria, which are set out in s 237 of the Native Title Act:
(a)Is the proposed grant likely to interfere directly with the carrying on of the community or social activities of the native title holders?
(b)Is the proposed grant likely to interfere with areas or sites of particular significance to the native title holders in accordance with their traditions?
(c)Is the proposed grant likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
I must answer these questions by making a predictive assessment of whether the grant of the licences is likely to have those effects. In performing that assessment, I must look at what is likely to occur as a result of the grants and decide whether there is a real chance or risk of interference or major disturbance, having regard to the rights conferred by the grant of the licences, the nature of the explorer’s proposed activities and the applicable regulatory regime (see Walley v Western Australia at [8]-[9]).
WDLAC provides evidence of the current carrying out of community and social activities of the Martu people on the licence areas including camping, the hunting and gathering of bush tucker, conducting traditional burning and ceremony. WDLAC submits that the evidence attests to the close relationship between those community and social activities and significant secret men’s and women’s sites, songlines, dreaming, burial sites and ceremonial places associated with those activities. It contends that the grant of the licences will interfere with those activities and sites, and cause major disturbance to the land and waters concerned.
The grantee parties contend that interference is unlikely to occur because ‘most of our activities are very low impact;’ the proposed exploration is intended to be no greater than previous exploration; and drilling, which they regard as ‘high impact,’ would only occur on previously disturbed land and will not proceed without first proposing to consult with ‘local elders.’
In light of these matters, the following issues are relevant for determining whether the grants attract the expedited procedure:
(a)Is there likely to be interference with community or social activities?
i.What are the community or social activities?
ii.What are the grantee parties’ proposed activities?
iii.Is there a real risk of interference with the community or social activities?
(b)Is there likely to be interference with areas or sites of particular significance?
i.What areas or sites are identified as being of particular significance?
ii.Are any of the identified areas or sites of particular significance?
iii.What are the grantee parties’ intentions with respect to heritage protection?
iv.Is there a real risk of interference with areas or sites of particular significance?
(c)Is there likely to be major disturbance to the land or waters concerned?
The evidence
The prospecting licence (P45/2983; WO2015/926)
In relation to the proposed prospecting licence WDLAC rely on the statement of elders Kevin Fred and Kenny Thomas declared 23 March 2016 (‘Martu Elders Statement 1’), and the statement of Evelyn Mitchell declared 24 March 2016. Annexed to the Martu Elders Statement 1 is a map marked ‘JW2’. There does not appear to be an annexure JW1. The Martu Elders Statement 1 was provided subject to directions made by me on 2 May 2016, restricting disclosure of the statement and annexure to male persons only.
The first grantee party provided a seven-page statement by Mr Williams together with: Appendix 1 ‘News Reports of Ground-Breaking Agreement with Wongatha in 2004,’ which refers to an agreement Mr Williams negotiated with another native title claim group; Appendix 2, which is list of abstracts from mineral exploration reports extracted from the State Government’s mineral exploration database (WAMEX) ‘for more than six previous mineral exploration companies over this small area;’ and Appendix 3, which is a copy of the Aboriginal Heritage Due Diligence Guidelines version 3, 30 April 2013, published by the Government of Western Australia. The guidelines are described by Mr Williams as ‘the guidelines to our Aboriginal Heritage Plan.’
The Government party evidence and documents indicate that: the licence area is 121.86ha and the Aboriginal sites database shows one registered site, namely site 11806 (Hamish’s Cave) and no other heritage places in the licence application area. The area is 100% ‘vacant Crown land,’ 100% the subject of a determination of native title, 100% the subject of an Indigenous Land Use Agreement (Lake Disappointment Project Mining and Indigenous), and the subject of approximately 12 ‘dead tenements.’ The initial term of grant is four years, renewable, and the prescribed limit the holder may excavate, extract or remove is 500t (Regulation 14, Mining Regulations 1981). Paragraph 17 of the Government Party contentions provided 13 June 2016 states that: ‘… the Grantee Party made a statutory declaration on 29/06/2015 in which he declared that “The Tenement Applicant is currently negotiating a regional tenement agreement with the WDLAC on behalf of the Martu.”’ A copy of the statutory declaration is attached to the Government Party contentions.
The exploration licence (E45/4557; WO2015/911)
In relation to the proposed exploration licence WDLAC rely on another statement of elders Kevin Fred and Kenny Thomas declared 23 March 2016 (‘Martu Elders Statement 2’), and the statement of Desmond Taylor declared 13 April 2016. Annexed to the Martu Elders Statement 2 are two maps, one marked ‘JWDH1’ and the other ‘JWDH2.’ Both statements and annexures were provided subject to directions made by me on 2 May 2016, restricting disclosure of the statements to male persons only.
The grantee parties provided a 10-page statement by Mr Williams. Attached to the statement are various documents, including a list of abstracts from WAMEX reports covering the exploration licence area. Also attached under cover of a separate email from Mr Williams and referred to as Appendix 3 is a copy of version 3 of the Aboriginal Heritage Due Diligence Guidelines.
The Government party contentions and documents indicate that: the licence area is 56,194.43ha 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, 98.7% the subject of an Indigenous Land Use Agreement (Lake Disappointment Project Mining and Indigenous), and the subject of between 100 and 200 ‘dead tenements.’ The initial term of grant is five years, renewable, and the prescribed limit of material the holder may excavate, extract or remove is 1000t (Regulation 20, Mining Regulations 1981). Paragraph 16 of the Government Party contentions provided 10 June 2016 states that: ‘…John Williams has made a statutory declaration in which he declares at paragraph 2 that “The Tenement Applicant has offered to enter into a Regional Standard Heritage Agreement (RSHA) with the MARTU – WDLAC by executing the RSHA and sending it to 4 CLIVE ST, WEST PERTH on 23rd Sept 2015 for the MARTU to execute should they accept the offer.”’ The statutory declaration is attached to the Government Party contentions.
Is there likely to be interference with community or social activities?
What are the community or social activities?
The WDLAC evidence describes a region where areas, places and landscapes are deeply connected to the dreaming(s) and significant songlines of the Pitjikarli: ‘Our old people camped, lived and hunted all around Pitjikarli country, especially around Irramindi (Telfer) where the soak still is today. We still go back to that soak at Irramindi every year. We go back and take our young men and women and teach them our stories and dreaming about Pitjikarli country’ (paragraph 10, Martu Elders Statement 1).
The Irramindi soak is not within either licence application area, but is a relatively short distance to the north. The Irramindi soak and other locations such as the registered site known as Hamish’s Cave, which sits within the application area for P45/2983, were created, visited, or marked in the dreaming. The songlines which run through both licence application areas describe and celebrate those events and the elders sing the journey. Those events and stories are taught to the ‘young ones’ today – on visits to country and at law business: ‘We go back and take our young men and women and teach them our stories and dreaming about Pitjikarli country.’ They say that when they prepare for law time they travel to Parrngurr along ‘the old road that goes through the middle of this [the exploration licence application] area.’ The track is marked on annexure ‘JWDH1.’
It is accepted that community accommodation and services are not located on either licence application area. WDLAC note in its contentions that the exploration licence area is ‘in relative close proximity to two communities’ in which members of WDLAC reside – Parrngurr, 90km south, and Punmu, 60km to the west. As mentioned above, the prospecting licence is approximately 16km south-west of Telfer. The Irramindi soak is in the vicinity of Telfer.
WDLAC contends that the deponents and other members of the native title party carry out a range of community and social activities ‘including camping, hunting and gathering bush tucker, conducting traditional burning, ceremony, births, and conducting traditional meetings.’ WDLAC argues there is a close relationship between those community and social activities and secret men’s and women’s sites, burial sites and ceremonial places and that the common law native title holders’ belief in creation during the dreamtime determines the ordering of their community activities.
Caring for country
The Martu deponents describe a range of ‘caring for country’ activities conducted by the community in and around the licence application areas, including under a ranger program organised through another Martu organisation, Kanyirninpa Jukurrpa. They say that, in the cool season, families from Parrngur and Punmu clean out soaks, waterholes and regularly burn the country. They say that if they do not carry out these activities ‘our bush tucker and medicines will be lost.’ 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.
According to the elders, Martu rangers manage the traditional burning ‘through[out] Karlamilyi and in and around this [exploration licence application] area.’ The elders also state that they burn the country in and around the prospecting licence application area to protect their totem, the kirti-kirti or hill kangaroo. The Martu rangers carry out burning in large groups consisting of five or six vehicles travelling along small tracks from Parrngurr heading north east through Karlamilyi to Punmu or along the Punmu-Telfer road from Warralong community (the Warralong community is significantly to the west of the licence areas).
Mr Taylor says that Martu traditional burning can cover a very large and expansive area of country. He says that when the burning is done they avoid burial places and other secret locations during law time: ‘The rangers make sure Elders are taken on all trips to ensure these places are protected.’ He says that elders may not tell exactly what or why they have to avoid certain places but the ranger teams know to respect and honour what the elders say. Mr Taylor describes the activity as ‘burn, wait for rain to cleanse, sing for rain.’ He says it is part of a ceremony, ‘beginning with smoking the country, the rain then completes the ceremony washing away the bad things that have happened.’
Burning country is described by Ms Mitchell as a land management exercise, that is, ‘to bring it back healthy all year round’ – and this protects, for example, kirti-kirti (hill kangaroo). She notes that ‘without talking this prospector will not know where Martu are burning … we can teach him when to be on that country.’
Mr Taylor says he is informed by a senior woman, the holder of a significant songline, that there are burial places located in the licence area near the boundary with Karlamilyi (the southern boundary of the exploration licence area) and ladies still visit and keep the place free from damage and unwanted visitors.
Hunting and gathering; teaching
Mr Taylor in his statement says (in relation to the exploration licence application area) that the licence area has places where they camp, hunt, collect and gather bush tucker and medicines, and there are also ceremonial and burial grounds in the area. He says there are a number of soaks and claypans on the eastern side where ‘we stop and camp,’ make spears from the warruwarru trees, and take boys and teach them the songline that runs through the area. Mr Taylor also identifies soaks on the western side of the exploration licence area off the Punmu-Parrngurr road near the boundary of Karlamilyi where ‘we will stop at these soaks and make spears today’ and ‘take young boys and teach song with elders.’ These soaks are marked on annexure ‘JWDH2’ and appear a short distance outside the licence application area on the western side.
Ms Mitchell in her statement (in relation to the prospecting licence application area) talks about a cave which is known to non-Martu people as Hamish’s Cave. Ms Mitchell says the cave is a men’s dreaming site and it is ‘not for women to know’ the story for the cave: ‘we know the name of that cave but we are not allowed to say it under Martu law. We don’t go inside that cave, we don’t want to be killed. That would happen to us. That is Martu culture.’ She also refers to places on the north side of the cave where there are signs of ancestor’s camping, grinding stones, sacred wanna (digging sticks), and punna or wirni (carved dishes or bowls). She says ‘[w]e still make them today.’ She talks about a grinding stone she used to teach her daughter which is kept hidden in that area. She says that ‘each year I take my young ones, other Pitjikarli young ones, and other Martu from the Warnman, Manyjilyjarra and Nguliyjartu tribes … I show them where our ancestors camped, tell them stories, show them bush tucker … we collect and use the seed of the yuwinji and spinifex to make bush damper and ground the seeds “paru” with grinding stones in this tenement area near that special cave.’
The evidence concerning the presence of objects which are kept in a traditional way and used for traditional purposes and to teach ‘young ones’ important aspects of tradition and custom are in my view consistent with a conclusion that both community and social activities are undertaken in that area. The location of this place, close to the important men’s site, the keeping of the physical objects on country, and the evidence of current practice lead me to conclude that the activities described are those of the kind referred to in s 237(a) in respect of the prospecting licence application area.
Traditional ceremony
The elders talk of significant songlines and ceremony which is shared by all Martu ‘and our different language and area groups.’ They describe the path of the songline sweeping through the west and south of the exploration licence area, in the Magnunyun or dreamtime when the country was made. There are places along the way where ceremonial objects are stored. The elders state that both licence areas are intersected by and connected to songlines and they still sing these songs each year at law business.
The elders refer to camping by the rangers undertaking traditional burning which has been practiced by the Martu ‘for long time ever since Magnunyun (dreaming).’ Camping for the purpose of ranger activities such as traditional burning appears to take place on or around the soaks near the western boundary of the exploration licence, referred to by Mr Taylor and marked on annexure ‘JWDH2.’ This location also appears to be a japiya (or increase) site – a place where elders ‘return to renew and refresh spirit.’ Mr Taylor says that ‘women would be in danger in this area.’
What are the grantee parties’ proposed activities?
The predictive assessment the Tribunal is charged with, in accordance with s 237, is an assessment of what activities are ‘likely’ to be done, and not what activities could be done pursuant to the proposed grant of the licences.
As described in [15]and [12] above, the key differences between the two licences are in area, term, and prescribed limits for ground disturbance. The licences allow the holder to enter and explore or prospect the areas and to excavate, extract or remove earth, rock, stone, fluid or other mineral bearing substances. The grant is also subject to any conditions that the State may impose.
The State proposes to grant the licences with identical endorsements and conditions, which are:
· Condition 1: any surface holes drilled for the purpose of exploration be capped, filled, or otherwise made safe immediately after completion;
· Condition 2: a complete environmental rehabilitation of any ground disturbance within six months of excavation to the approval of the Department of Mines and Petroleum’s Environmental Officer;
· Condition 3: the complete removal of any rubbish and other materials left on the licence prior to or at the termination of the exploration program; and
· Condition 4: prohibition of the use of any drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans without the prior written approval of the Department’s Environmental Officer.
The grant of the licences is subject to endorsements drawing the grantee parties’ attention to the provisions of the Aboriginal Heritage Act 1972 (WA) and regulations, as well as other matters relating to water resources in the licence areas.
Mr Williams provided material to the inquiry as outlined in [14] and [11] above. He describes his experience as a geologist, explorer and miner in Western Australia, including in the Telfer area, who has successfully negotiated native title agreements in the past. In his statement, Mr Williams describes the terrain and includes photographs and graphics to assist in the explanation of his proposed activities, features of the landscape, and previous impacts. In relation to both areas he indicates that proposed activities are intended to be no greater than previous exploration, noting that records held by the Department of Mines and Petroleum indicate a large number of historical tenements over the area of the exploration licence, and some over the area of the prospecting licence.
Mr Williams states that in relation to the exploration licence application area there are ‘no Aboriginal Heritage Areas,’ although he notes there are sites in the Karlamilyi national park (adjacent to the south-east boundary of the exploration licence) and to the north of the area. On the area of the prospecting licence he refers to satellite imagery showing ‘existing tracks from previous explorers which were able to avoid the registered Aboriginal Heritage Area.’ He says: ‘I will ensure this area is respected and avoided at all times during mineral exploration activities. We will naturally be engaging local elders before venturing into the area and conducting a heritage survey if deemed necessary.’
In relation to both licence areas, Mr Williams says: ‘most of our activities are very low impact.’ He says ‘selected areas will be soil sampled where just 15 grams of very fine soil material is taken from each location 500 metres apart.’ He goes on to say: ‘Drilling which we regard as “high impact” exploration, will only be carried out over previously disturbed land and not without the consultation of local Elders; otherwise a Heritage Survey will be conducted beforehand engaging local elders and archaeological personnel.’
Immediately following this statement in relation to the exploration licence application, Mr Williams says: ‘However under the WDLAC proposed agreement our activities become very cost prohibitive.’ In his statement concerning the prospecting licence, Mr Williams outlines a number of concerns about the proposed agreement, including costs, the broad level of discretion given to WDLAC with respect to the number of meetings and reviews, and what he describes as ‘inflexible requirements for a heritage survey,’ regardless of whether a survey has already been undertaken over the same area.
Statutory declarations attached to the contentions and evidence provided by the Government party and referred to above at [15] (regarding the exploration licence application) and [12] (regarding the prospecting licence application) disclose the following:
·‘The Tenement Applicant has offered to enter into a Regional Standard Heritage Agreement (RSHA) with the MARTU – WDLAC by executing the RSHA and sending it to 4 CLIVE ST, WEST PERTH on 23rd Sept 2015 for the MARTU to execute should they accept the offer;’ and
·‘The Tenement Applicant is currently negotiating a regional tenement agreement with the WDLAC on behalf of the Martu.’
Both of Mr Williams’ statements refer to ‘our Aboriginal Heritage Plan’ and the guidelines which inform the plan. These ‘guidelines’ are said to be that:
·Aboriginal sites are an important part of the heritage of the whole community. They are of immense cultural, scientific, educational and historic interest;
·Aboriginal heritage sites provide Aboriginal people today with an important link to their present and past culture;
·many Aboriginal sites are fragile and can easily be damaged. When they are destroyed or damaged, information about past cultural and environmental changes may be lost forever. Information about the people who lived here for the last 45,000 years can only be obtained through the archaeological investigation of these sites; and
·protecting a site from erosion or other natural damage or from human activities such as development plans requires some form of management if the site is to retain its integrity and be preserved for the future.
Each of Mr Williams’ statements also attached a copy of the State’s Aboriginal Heritage Due Diligence Guidelines, which he describes as the ‘guidelines to our Aboriginal Heritage Plan.’ There is no ‘Aboriginal Heritage Plan’ attached to the contentions, and apart from the documents referred to in the statutory declarations it is not clear what the plan entails. There is no other reference to the negotiation of a regional tenement agreement between Mr Williams and WDLAC, except at page 7, paragraph 2 of Mr Williams’ statement where he says, in relation to the concerns outlined in the statements of the Martu Elders: ‘I have been discussing this with WDLAC for nearly 2 years now including their CEO and Chairman and I am very frustrated and concerned that WDLAC have not conveyed any of my intentions to these Elders.’
Is there a real risk of interference with the community or social activities?
Hunting and gathering; traditional ceremony
The evidence discloses the collective experience of a range of community and social activities which are manifestations of the native title party’s determined native title rights and interests. Caring for country and hunting might occur throughout Pitjikarli country, however, some activities are location specific. Ms Mitchell’s description of activities in the proximity of Hamish’s Cave for example would appear to be specifically carried out within the prospecting licence area.
Mr Williams at page 7 of his statement regarding the prospecting licence asserts that he will ensure the area of Hamish’s Cave ‘is respected and avoided at all times during mineral exploration activities’ and states they ‘will naturally be engaging local elders before venturing into the area and conducting heritage survey if deemed necessary.’ At page 5 of his statement, referring to an image reproduced from the State’s Aboriginal Heritage Inquiry System which identifies the location of the site in relation to the licence area, Mr Williams says that the area marked represents a ‘100 metre diameter Aboriginal Heritage Area that we intend to avoid at all times.’
I find Mr Williams’ statement somewhat confusing. It appears that the ‘Aboriginal Heritage Area’ is to be avoided. However, the statement at page 7 seems to qualify that position: ‘We will naturally be engaging local elders before venturing into the area.’ These two statements can only be reconciled if the reference to ‘the area’ in the second statement is taken to be a reference to the remainder of the licence area, rather than the ‘Aboriginal Heritage Area’ centred around Hamish’s Cave.
The ‘Aboriginal Heritage Area’ marked out on the imagery included in Mr William’s statement would be 50 metres in all directions from the site itself. The place referred to by Ms Mitchell is said to be to the north of Hamish’s Cave, but the distance is not specified. Given the nature of Hamish’s Cave and its significance as a men’s site, and the consequences for women in or around the site, it is likely that the place referred to by Ms Mitchell is outside the area marked ‘Aboriginal Heritage Area.’
Accordingly, I cannot be satisfied that the activities proposed by the first grantee party will not interfere with the carrying on of the community or social activities associated with the area to the north of Hamish’s Cave. The claim that soil samples of 15 grams will be taken at locations 500 metres apart does not seem credible given the area of the prospecting licence application has been described as roughly (only) 1km x 1km.
The elders refer in more general terms to places where ceremonial objects are stored. At [25] above, I note the evidence of Mr Taylor in relation to soaks on the western side of the exploration licence area where they take young boys and teach song and make spears, and which is also a japiya place (where elders return to renew and refresh spirit). The elders also state that damaging areas associated with particular songlines will ‘affect our ability to continue to perform this song on our country.’ Annexure ‘JWDH2’ indicates that the soaks are outside the licence application area.
WDLAC strongly argue that although some sites and areas referred to are outside the licence application areas they are connected to sites and areas within the application areas through the Jukurrpa. Be that as it may, I am not satisfied that the activities contemplated by the grantee parties within the licence areas will interfere directly with activities undertaken at the soaks or the japiya place.
Caring for country
As for the caring for country activities, specifically traditional burning, the evidence suggests that this occurs over large portions of the country within and surrounding the licence areas. The grant of these licences may have the effect of disrupting this practice and as such flow on and have a direct impact on the cultural duties and obligations of the Martu people. For example, the elders state that, unless Mr Williams talks to them, he will not know when or where burning is taking place, which ‘would be a big problem for the rangers’ (this concern is also shared by Ms Mitchell). As I observed in WDLAC v Teck Australia at [79], these concerns are particularly acute given the existence of Martu beliefs about their obligations to strangers who visit their country. Unless specific arrangements are made about the interaction of these activities, I consider there is a real risk of interference with the ability of the native title holders to carry on this activity in a way that is consistent with their cultural obligations.
Given the nature of the activity, it is not difficult to conceive that the grantee parties’ proposed exploration might interfere with the carrying on of the native title holders’ burning activities if the grantee parties do no consult with the native title holders before entering the area, at least during the times of the year when burning is conducted. The possibility that the grantee parties might be in the area at a given time may directly interfere with the decision to carry out traditional burning, which would have a direct effect on the ability of the native title holders to observe their cultural obligations and carry out activities such as hunting and gathering that depend on intermittent burning. I accept there is a real risk of such interference on the exploration licence, considering the size of the licence area. However, I am not so satisfied in relation to the prospecting licence, given it covers a comparatively smaller area and the presence of culturally significant sites and artefacts suggests any burning in the area would need to be carefully managed and supervised.
Conclusion
I am not satisfied that the risk of interference with traditional burning (on the exploration licence application area) or the activities associated with the area near Hamish’s Cave is mitigated by the measures that the grantee parties propose, including the use of existing tracks and consultation with the local elders prior to conducting any high impact activities. The discretion of determining whether an area has been ‘previously disturbed’ rest solely with the grantee parties. The evidence regarding traditional burning suggests there is a real risk the grantee parties’ presence will, without consultation, interfere with traditional burning, regardless of the degree of impact associated with the grantee parties’ activities. The meaning of ‘consultation with local Elders’ is not explained, nor the process for undertaking consultation. It is apparent from Mr Williams’ statement that the WDLAC proposed agreement was not accepted because of concerns held by the grantee parties regarding fees, WDLAC’s discretion with regard to the number of meetings, and what are seen to be inflexible requirements for heritage surveys. It is difficult to conceive how such consultation could adequately take place without some kind of arrangement between the parties. That is a matter for further negotiation.
I am of the view that there is a real likelihood of interference with these practices within the meaning of s 237(a) unless the normal negotiation practice is followed.
Is there likely to be interference with areas or sites of particular significance?
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 it is asserted that an area or site is of particular significance, the area or site must be identified and the nature of its significance explained (Silver v Norther Territory at [91], referring to Western Australia v McHenry).
What areas or sites are identified as being of particular significance?
WDLAC must provide sufficient evidence to: show that 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]).
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). Sites and areas referred to by WDLAC in contentions and evidence include:
(a)Songlines described in Martu Elders Statement 2 at [21-[26]
(b)Burials: see Taylor statement at [30]-[31]
(c)Japiya (ngulu) site: see Taylor statement at [21]-[31] (ngulu means sacred, secret, dangerous)
(d)Soaks connected with the dreaming: see Taylor statement at [16]-[19]
(e)Hamish’s cave: see Mitchell statement at [7]-[8] and Martu Elders Statement 1 at [28]-[29]
(f)Wanna grinding stones: see Mitchell statement at [6], [12]-[13]
Are any of the identified areas or sites of particular significance?
Results from the Department of Aboriginal Affairs Aboriginal Heritage Inquiry System show there is only one registered for the prospecting licence, that is, the cave referred to in (e) above. There are no registered sites within the exploration licence.
As stated at [16] above, the WDLAC evidence describes a region where areas, places and landscape are deeply connected to the dreaming(s) and significant songlines of the Pitjikarli: ‘Our old people camped, lived and hunted all around Pitjikarli country, especially around Irramindi (Telfer) where the soak still is today. We still go back to that soak at Irramindi every year. We go back and take our young men and women and teach them our stories and dreaming about Pitjikarli country’ (paragraph 10, Martu Elders Statement 1).
At [17] above I note that the Irramindi soak is not within either licence application area, but is a relatively short distance to the north. The Irramindi soak and other locations such as the registered site known as Hamish’s Cave, which sits within the prospecting licence application area, were created, visited, or marked in the dreaming. According to the elders, both Irramindi and Hamish’s Cave are linked to an important regional songline. In particular, they describe the cave as an ‘important jukurr’ (or dreaming) and say that access to or knowledge about the cave is restricted to initiated men.
The elders also state that the songline links Irramindi and the cave to areas within the exploration licence. Specifically, a special part of this songline is said to travel through the exploration licence and is marked on annexure ‘JWDH1’ to the Martu Elders Statement 2. The elders describe this section of the songline as ‘part of a big song and dance ceremony’ and say that, due to the existence of a number of places where ceremonial objects are stored, access to the area is restricted to senior law men. According to the elders, there are features in this area which require protection and are only identifiable by initiated men. Mr Taylor also mentions two soaks near the boundary of Karlamilyi which he says are connected to the songline.
Based on the evidence before me, I find that the Irramindi soak, the japiya place, and the soaks referred to in the evidence of Mr Taylor are not on either licence application area, although annexures ‘JWDH1’ and ‘JWDH2’ suggest they are relatively close. Other sites which may be on the licence areas include: the burial places which are said to be in the licence area near the boundary with Karlamilyi (southern boundary of the exploration licence application area); and the places on the northern side of the cave (on the prospecting licence application area) described in the evidence of Ms Mitchell, where there are signs of ancestor’s camping, where objects are stored, and where community and social activities (particularly women’s business) continue today.
Based on the evidence, it appears to me that Hamish’s Cave is a site of profound importance to the Martu. The site is integral to the dreaming and important songlines. Its importance as a men’s site is well explained and its proximity to areas attended by women in the exercise of community and social activities is logical in terms of the social and cultural dynamics of Martu society. In the circumstances I am satisfied that the cave, identified on the register as Hamish’s Cave, is a site of particular significance.
It is difficult for me to conclude though that the place to the north of the cave (on the prospecting licence application area) where objects are stored and used by women to teach and exercise community and social activities, would be directly interfered with if the objects were damaged, destroyed or removed. Although I find that at least some of these objects are culturally significant, the evidence does not support the particular significance of the area itself.
While I accept that burial sites are significant from a cultural and religious perspective, the burial sites mentioned in the present matter have not been identified with the degree of specificity required to support a finding of particular significance. Although Mr Taylor specifically refers to one burial site near the boundary with Karlamilyi, it is not apparent to me whether the site has a broader traditional significance for Martu people or Pitjikarli people generally.
In relation to the dreaming and songlines, in Tarlka Matuwa Piarku v WA Mining Resources Pty Ltd at [26] I said: ‘I do not accept the State’s argument that a jukurrpa or dreaming track cannot qualify as an area or site. 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]).’
To paraphrase Member O’Dea in WF v Emergent Resources at [39], it would seem reasonable to conclude that the areas the subject of the dreaming and songlines within the licence application areas might be deemed to be generally significant, whereas the sites, particularly the cave, Irramindi soak, and the other soaks and claypans, could be regarded as manifestations of specific activities of mythic beings, as specific culturally significant areas and therefore of particular significance to the Martu people.
Based on that analysis, I conclude that there are culturally significant areas within the licence application areas, but only Hamish’s Cave would qualify as a site of particular significance under s 237(b).
What are the grantee parties’ intentions with respect to heritage protection?
The grantee parties’ heritage protection intentions are described in [34] to [40] and [42] to [43] above.
In relation to the registered site on the prospecting licence application area, Mr Williams says: ‘I will ensure this area is respected and avoided at all times during mineral exploration activities.’ The area is marked on the imagery at page 7 of Mr Williams’ statement by a dotted circle identified as ‘Aboriginal heritage Area,’ the scale indicating a diameter of 100 metres. At page 5 of his statement, Mr Williams says that he intends to avoid the Aboriginal heritage Area ‘at all times.’ The apparent qualification to that statement which I refer to at [43] above must therefore, in context, concern only the remainder of the licence application area.
Is there a real risk of interference with areas or sites of particular significance?
WDLAC say that the country is imbued with such particular significance that any entry onto land containing sites or areas of particular significance which has not been agreed would be likely to result in interference. Although the evidence does not support the contention that unauthorised entry onto any area affected by the licences would constitute interference within the meaning of s 237(b), I accept that improper access to Hamish’s Cave may interfere with the site. The elders state that the site ‘is men’s only dreaming not for women to see or know. If women knew this there would be serious trouble.’ The elders also state that they instructed an anthropologist who accompanied them on a survey of the area to keep the survey report secret, as they ‘did not want people seeing any photos or information’ about the site. They also note the classification of the survey report means that Martu consent is required before it is released by the Department of Aboriginal Affairs, which is ‘the right way to treat Martu culture.’ Ms Mitchell also explains the impact and consequences of improper access to the site by women.
WDLAC say that the classification of ‘low impact’ exploration under the Regional Standard Heritage Agreement does not contemplate the implications for highly sensitive or gender restricted sites. It says the only way to ensure their sites are protected is through an agreement negotiated with WDLAC. The elders say that if a company starts exploring and damages any of the area marked in the dreaming ‘the spirit will be upset and will seek revenge from the law bosses who are in charge of this spirit.’ They cite an example of such revenge which occurred when the Martu were not consulted in relation to the Telfer pipeline which damaged country and caused flooding that stopped work at the mine and cut off communities.
The first grantee party’s intentions regarding the ‘Aboriginal heritage Area’ are described at [66] above. They say that the area will ‘be respected and avoided at all times during mineral exploration activities.’ This suggests that not even ‘low impact’ activities would be undertaken within the area, and the use of the term ‘avoided’ suggests that they will not enter on to the area. There is no obligation for parties to negotiate in relation to proposals in respect of which the State has asserted the expedited procedure. In a statutory declaration annexed to the Government party contentions concerning the prospecting licence application, the first grantee party declared that: ‘The tenement applicant is currently negotiating a regional tenement agreement with WDLAC on behalf of the Martu.’ The statutory declaration is dated 29 June 2015. At [40] above I note that there is no other reference to negotiations of a regional tenement agreement between Mr Williams and WDLAC, except at page 7 paragraph 2 of Mr William contentions where he says in relation to the concerns of Elders in their statements: ‘I have been discussing this with WDLAC for nearly 2 years now including their CEO and Chairman and I am very frustrated and concerned the WDLAC have not conveyed any of my intentions to these Elders.’ Failure to reach agreement is not relevant to the inquiry.
In evaluating the likely effect of the grant on the site at Hamish’s Cave, I have also had regard to the protective effect of the Aboriginal Heritage Act and the regulatory regime which supports its operation. WDLAC argues that I should give less weight to the protective effect of that regime due to the prior conduct of Mr Williams. Specifically, WDLAC refers to a document published by the Department of Mines and Petroleum in October 2014 entitled Prospecting in Western Australia – Your Rights and Obligations when Prospecting, page 6 of which states that ‘[p]ermission from the Native Title Party is required to enter land where exclusive native title rights have been determined to exist.’ WDLAC argues that such permission has not be obtained or sought by Mr Williams.
Section 28 of the Mining Act provides that no person shall enter or remain upon the surface of any private land for, among other things, the purpose of marking out land in connection with an application for a mining tenement unless the person is the owner in occupation of the land or is authorised to do so by a permit issued under s 30 of the Act or by virtue of a mining tenement. In the context, I interpret WDLAC’s contention as saying the presumption of regularity should not apply on the basis that Mr Williams did not obtain a permit to enter areas the subject of the Martu people’s exclusive native title for the purpose of marking out the prospecting licence. I note that a permit obtained under s 30 is not conditional on obtaining the permission of the private land holder; however, given neither Mr Williams nor the Government party responded to the contention, a common sense approach to the evidence requires me to draw an inference that a permit was not in fact obtained.
Regardless of that conclusion, I have no reason to doubt the sincerity of Mr Williams’ intention to respect and avoid the ‘Aboriginal heritage Area.’ Although I find that Mr Williams did not seek permission from WDLAC or obtain a permit to enter the land, I do not consider this to be sufficient to displace the presumption of regularity (cf Smirke v Aurora Resources at [67]; WF v Emergent Resources at [28]). I am satisfied that the regulatory regime, the registration of the site on the heritage database, and Mr Williams’ undertaking to respect and avoid at all times mineral exploration activities in the area described by Mr Williams as the ‘Aboriginal heritage Area,’ is sufficient to prevent interference with this site of particular significance.
Is there likely to be major disturbance to the land or waters concerned?
Section 237(c) is directed to whether the grant of the licences is likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters affected by the grants. What constitutes ‘major disturbance’ is determined by reference to the standards of the whole Australian community, though the views of the local Aboriginal community will of course be relevant to that assessment. In particular, the Tribunal will have regard to matters such as the community life, customs, traditions and cultural concerns of that community in evaluating the degree of disturbance (see Little v Oriole Resources at [52]-[54], referring to Dann v Western Australia at 395, 401 and 413). Nevertheless, the Tribunal has generally found that mineral exploration or prospecting activity is unlikely to involve major disturbance unless the land or waters have special characteristics which suggest that any disturbance arising from the activity could reasonably be characterised as such (see Champion v Western Australia at [77] and the cases cited).
WDLAC submits that the licence areas ‘include numerous sites and areas of particular significance, including sites which are highly sensitive or gender restricted in nature, which are connected to underlying Jukurrpa’ that connect them to other areas in the vicinity of the proposed licences. WDLAC argues that an impact to a site or area of that kind could therefore interfere with other sites or areas of significance within or outside the licence areas. It also argues that community and social activities carried on by its members ‘have a strong relationship with the highly sensitive and gender restricted sites’ found on the licence areas, noting that they lie in close proximity to the Parrngurr and Punmu communities. On this basis, WDLAC contends that, in the context of the community and social life and laws and customs of the common law native title holders, even perceived ‘low impact’ exploration could reasonably be regarded as causing major disturbance to the land and waters concerned and the associated community and social activities.
In my view, these arguments have greater relevance to the other criteria than the issue of whether major disturbance is likely to occur. I have already found that the grant of the licences is likely to interfere with certain community and social activities carried on by members of the native title party. I have also found that the evidence supports the existence of a number of significant sites, though I consider only one to be a site of particular significance within the meaning of s 237(b). It does not necessarily follow that the proposed exploration is likely to involve major disturbance. The likelihood that the grant of an exploration or prospecting licence will involve major disturbance depends on the degree of direct physical interference likely to occur as a result of the grant. This is a separate question to whether the grant is likely to interfere with a site of particular significance or the carrying on of a community or social activity, in which case the likelihood of interference will typically depend on the nature of the site or activity in question.
Although the evidence of the Martu deponents suggests there are cultural concerns about the impact of exploration activity, I am not satisfied the characteristics of the area are such that the proposed exploration program, whether characterised as ‘low impact’ or not, will necessarily involve major disturbance to the land or waters concerned. Its lack of detail notwithstanding, the impact associated with the exploration program is likely to be mitigated by the applicable heritage and environmental protection regimes. As I noted above, this is not a case where the presumption of regularity has been displaced. I have also given weight to the conditions which the State intends to impose requiring the grantee parties 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. In my view, these conditions, in the context of the overarching regulatory framework, are sufficient to mitigate any potential impacts to the land or waters arising from the grant of the licences.
For these reasons, I find the grant of the licences is not likely to involve major disturbance to the land or waters concerned.
Conclusion
For the reasons outlined above, I find that the grant of the licences is likely to directly interfere with the social and cultural activities of the native title party. Although the evidence establishes the existence of a site of particular significance on the prospecting licence, I am not satisfied the proposed exploration will interfere with the site. Nor am I satisfied that the grant of the licences will involve major disturbance to the land or waters concerned.
Based on the evidence before me I find that the expedited procedure does not apply and the parties must proceed under the normal negotiation procedures in accordance with the Native Title Act.
Determination
The determination of the Tribunal is that the grant of prospecting licence P45/2983 to John Williams and the grant of exploration licence E45/4557 to David John Hutson and John Williams and are not acts attracting the expedited procedure.
Mr JR McNamara
Member
25 January 2017
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