WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd
[2012] NNTTA 17
•23 February 2012
NATIONAL NATIVE TITLE TRIBUNAL
WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd, [2012] NNTTA 17 (23 February 2012)
Application No: WO11/409
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants (WC99/24) (native title party)
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The State of Western Australia (Government party)
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Emergent Resources Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 23 February 2012
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere with sites of particular significance – expedited procedure attracted.
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 155, 237
Mining Act 1978 (WA), ss 20(5), 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Aboriginal and Torres Strait Islander Heritage Act 1972 (Cth)
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
David Smirke and Others on behalf of the Jurruru People/Western Australia/Aurora Resources Pty Ltd [2009] NNTTA 142
Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Les Tullock and Ors on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Pollock v Wellington (1996) 15 WAR 1
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24
Representative of the Ms Monica Franz, Central Desert Native Title Services
native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services
Representatives of the Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the
grantee party: Mr Clive Miller, Tenure Matters
REASONS FOR DETERMINATION
On 15 December 2010, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E53/1584 (‘the proposed licence’, ‘tenement’, ‘tenement area’) to Emergent Resources Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, an act which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 30.72 square kilometres in the Shire of Wiluna. The s 29 notice identifies the proposed licence as being located 100 kilometres west of Wiluna; however, Tribunal mapping indicates that it is in fact only 36 km west of the town. The proposed licence is situated entirely within the Wiluna registered native title claim (WC99/24 - registered on 24 September 1999). No other native title claims or determination areas overlap the proposed licence.
On 1 April 2011, an expedited procedure objection application was lodged with the Tribunal by WF (deceased) and others on behalf of the Wiluna native title claimants (‘the native title party’) in relation to the proposed licence (designated by the Tribunal as WO11/409).
On 3 May 2011, Deputy President Sumner was appointed Member for the purposes of the conduct of an inquiry to determine whether or not the expedited procedure is attracted. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and evidence for the inquiry. These directions allow a four month period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
At a status conference on 13 July 2011, all parties requested that the matter proceed to inquiry. On 13 July 2011, the native title party requested an extension to the dates for providing contentions and evidence, which was approved by DP Sumner on 18 July 2011.
The Government party lodged its evidence and contentions on 13 July 2011 and 1 August 2011. The native title party lodged the affidavits of Mr Maurice Wongawol, Mr Norman Thompson, Mr William Henry Kruse and Ms Kate Elizabeth Fulton on 22 August 2011, followed by a statement of contentions on 31 August 2011. The grantee party lodged its statement of contentions on 26 August 2011, followed by a supplementary statement of contentions on 7 October 2011.
On 14 September 2011, the Government party made an application to the Tribunal to cross-examine the deponents of the affidavits lodged by the native title party. The application was made on the basis that, in the view of the Government party, the objection was not a matter in which it was appropriate to proceed ‘on the papers’ (that is, without a hearing). Following a Listing Hearing on 15 September 2011, further directions were made by DP Sumner requiring parties to lodge submissions in relation to the Government party’s application.
On 14 October 2011, I was appointed as the Member for the purposes of the conduct of the Inquiry. On 19 October 2011, I approved a request by the native title party for an extension to the dates for lodging submissions and set a date for a directions hearing to determine whether the matter should proceed to a hearing. At the directions hearing on 22 November 2011, I determined that the native title party should have the opportunity to submit further evidence to address the concerns of the Government party and set directions accordingly. On 5 December 2011, the native title party lodged the affidavit of Mr Frankie Wongawol and on 12 December 2011 the Government party advised the Tribunal that it no longer wished to maintain its application to cross-examine the native title party’s witnesses. On 14 December 2011, the Government party lodged further contentions in relation to the affidavit of Mr Frankie Wongawol, followed by further supplementary contentions lodged by the grantee party on 19 December 2011.
Section 151(2) of the Act provides that the Tribunal may determine an application on the papers unless it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. In support of its application for the matter to be determined following a hearing, the Government party contended that the information contained in the affidavits of Mr Thompson and Mr Maurice Wongawol is of such a level of generality that it would be unfair to the Government party if the Tribunal were to accept and act on the affidavits without permitting the Government party to question the deponents. The Government party has now abandoned its application. Nevertheless, it is my view that the matters raised in the affidavits of Mr Maurice Wongawol and Mr Thompson are capable of being resolved without resorting to a formal hearing and I do not consider that the Government party or the grantee party have suffered any prejudice as a result of that decision. Accordingly, I am satisfied that the objection can be adequately determined on the papers.
Legal Principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley’), DP Sumner considered the applicable legal principles (at 439-449, [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454, [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) (‘Mining Act’) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at 453-454, [34]) have been strengthened.
With respect to issues arising under s 237(b), I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38] and [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175). I also adopt the findings of DP Sosso in Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18.
Evidence in Relation to the Proposed Act
Government party documentation establishes the underlying land tenure on the proposed licence as follows:
·Pastoral Lease 3114/1131 (Paroo) overlapping at 99 per cent;
·File Notation Area FNA/7148 at 2.6 per cent; and
·Road Reserve (Goldfields Highway) at less than 1 per cent.
There are no Aboriginal communities identified within the tenement area. However, according to Tribunal mapping, there are four Aboriginal communities within 40 to 45 kilometres west of the proposed licence (Bondini, Kutkabubba, Desert Gold and The Village), in addition to the town of Wiluna, where Mr Thompson, Mr Maurice Wongawol and Mr Frankie Wongawol reside.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals no registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) but indicates the following ‘Other Heritage Places’ within the proposed licence:
·Site ID 17234 – Quarry Site (quarry, artefacts/scatter – stored data, open access, no restriction); and
·Site ID 19678 – Tarlka (mythological, artefacts/scatter – information assessed, closed access, no restriction).
Government party Quick Appraisal documentation shows that there are three live tenements (one exploration licence and two prospecting licences) overlapping the proposed licence at between 1.6 and 2.3 per cent, six ‘dead’ exploration licences and prospecting licences granted and either surrendered or forfeited between 1992 and 2009 and overlapping at between 2.3 and 94.4 per cent, and one temporary reserve active between 1959 and 1964 which entirely overlaps the tenement area.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4).
Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’). Standard Condition 4 is also to be read with s 63(aa) of the Mining Act which requires approval by the DMP Environmental Officer of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal Sites; advise whether the proposal intersects the boundary of registered sites; and consult with DIA and obtain advice from them that the proposed activities are acceptable.
In addition, the grant of the proposed licence will be subject to the following conditions:
‘5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rings; water carting equipment or other mechanical equipment.
6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of: -
· the grant of the Licence; or
· registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7.No interference with Geodetic Survey Stations Z15, Z15T, GGY74 and GGY74T and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.
8.No excavation, excepting shafts, approaching closer to the Goldfields and Great Northern Highways, Highway verges or the road reserves than a distance equal to twice the depth of the excavation and mining on the Goldfields and Great Northern Highways or Highway verges being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below a depth of 15 metres from the natural surface.
9.In respect of the area covered by this licence if the Wiluna People (being the applicants in Federal Court Application No. WAD6164/98 send a request by pre-paid post to the licensee’s or agent’s address c/- Tenure Matters, PO Box 365 WEMBLEY WA 6913, not more than ninety days after the grant of this licence, the licensee shall within thirty days of the request execute in favour of the Wiluna People the Regional Standard Heritage Agreement (RSHA) endorsed by peak industry groups and the Central Desert Native Title Services Ltd.’
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed on the proposed licence:
‘1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
3.The grant of this licence does not include the land the subject of prior Exploration Licence 53/644. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.’
Contentions and Evidence provided by the Native Title Party
In its statement of contentions the native title party states that its objection is in relation to s 237(b) of the Act and that it ‘does not seek to pursue its objection in relation to sub-sections 237(a) and (c) of the NTA and hereby amends its objection to remove any reference to said sections’ (para 1.3).
In support of its statement of contentions the native title party has provided the affidavits of Mr Maurice Wongawol (sworn 10 August 2011), Mr Norman Thompson (sworn 10 August 2011), Mr Frankie Wongawol (affirmed 1 December 2011) and Dr William Kruse (affirmed 20 August 2011). In the course of the inquiry, the native title party sought confidentiality orders pursuant to s 155 of the Act restricting the publication of the affidavits of Mr Maurice Wongawol, Mr Thompson and Dr Kruse on the basis that they contain culturally sensitive material and requiring their destruction or deletion at the conclusion of proceedings. I was not prepared to make an order in such terms. However, taking into account the cultural and customary concerns of the native title party, I advised the parties that I would depart from usual Tribunal practice in matters such as this, which is to reproduce the affidavits in full. I did, however, make it clear to the native title party that it was unavoidable that I would need from time to time to refer to the contents of the affidavit during the course of writing this determination. I acknowledge the native title party’s wish to limit the publication of culturally sensitive material and I discuss the contents of the affidavits only to the extent necessary to explain my decision.
Mr Maurice Wongawol, Mr Thompson and Mr Frankie Wongawol state that they are initiated men and senior members of the native title party. Mr Thompson is one of the applicants in the native title party’s claim. Mr Maurice Wongawol states that his authority to speak about the area of the proposed licence is dependent on authorisation from Mr Thompson; ‘[h]e is the main one, but I can also look after country and talk’. I accept that Mr Thompson and Mr Frankie Wongawol have the authority to speak on behalf of the native title party. I also accept that Mr Maurice Wongawol has authority to speak on behalf of the native title party, subject to any statement made by him not conflicting with the evidence of Mr Thompson. Dr Kruse states that he is a qualified anthropologist and has conducted anthropological research for a number of organisations including Central Desert Native Title Services Ltd (‘Central Desert’). Dr Kruse also states that he has several years’ experience working with people of the Western Desert Cultural Bloc, including members of the native title party. I accept his evidence on that basis.
The evidence of Mr Thompson, Mr Maurice Wongawol and Mr Frankie Wongawol (to whom I refer collectively as the Wiluna deponents) is contested by the Government party, who submits that the information contained in their affidavits is ‘so lacking in particularity and detail that it would be unfair to the [Government party] if the Tribunal were to accept and act on the affidavits’ (Government party contentions dated 4 October 2011, para 9) and in any case ‘does not contain sufficient material to support a determination of the kind sought by the [native title party]’ (Government party contentions dated 14 December 2011, para 5). While I acknowledge that the evidence of the Wiluna deponents is in many ways deficient, in my view the lack of detail goes to the quality of the evidence rather than its reliability. As neither the Government party nor the grantee party has sought to challenge any of the specific matters deposed to, I am prepared to accept the evidence on that basis.
The Government party also sought to challenge the evidence of the Wiluna deponents on the basis that the map referred to in their evidence was not annexed to the affidavits. At para 10 of the Government party contentions dated 4 October 2011, the Government party contends that, apart from statements made in the affidavits asserting knowledge of the location of the proposed licence, there is no evidence that the deponents know its location and it is therefore unclear whether their claims concerning their knowledge of its location can or should be accepted. I agree that the native title party’s failure to include a copy of the map, which was shown to the deponents during the course of the drafting of their affidavit, and would have provided me with considerable assistance in assessing the evidence contained in those affidavits is unhelpful. However, no such maps have been provided and I will assess the merits of the native title party’s objection on the basis of the written affidavits alone.
The native title party also contends that, given the need for consultation to avoid interference with alleged sites and areas of particular significance on the proposed licence, the past conduct of the grantee party is such that consultation is unlikely unless required under s 31 of the Act. In support of this contention, the native title party submits the affidavit of Kate Elizabeth Fulton (sworn 22 August 2011). Ms Fulton’s affidavit is made in the following terms:
‘On 22nd Day of August 2011, I Kate Elizabeth Fulton, of c/- 76 Wittenoom Street East Perth in the State of Western Australia, Compliance Officer, make oath and say as follows:
1. I am the Agreement Implementation Coordinator at Central Desert Native Title Services (“Central Desert”)
2. Except where otherwise stated, the facts herein deposed are as within my own knowledge or have come to my knowledge through access to information, which I believe to be true and which is identified in this affidavit.
3. I swear this affidavit in support of the objection by the Native Title Party to the expedited procedure applying for tenement E53/1584.
4. I have been the Agreement Implementation Coordinator at Central Desert since June 2010. It is my job to ensure our clients, the Native Title Parties and companies, such as Emergent, are complying with the agreements they signed up to.
5. I reviewed the files held by Central Desert for all tenements of which Emergent has an interest within the Wiluna native title claim area. I identified those tenements as E53/977, E53/893 and E53/1301. A true copy of a map indicating the locations of those tenements and the tenement the subject of this matter is attached and marked “KEF1”.
E53/977
6. Tenement E53/977 is currently live. 20% of the licence is held by Pandell Pty Ltd (“Pandell”) and 80% of the licence is held by Emergent Resources Ltd (“Emergent”). A true copy of the Department of Mines and Petroleum screen printout is attached and marked “KEF2”.
7. A heritage agreement was signed between Pandell and the Wiluna claim group on 9 May 2006. The purpose of the agreement, as set out in the recitals, is to ensure that the grant of the tenement and the exercise of the rights under the tenement will not be likely to directly interfere with the community life of the Native Title Party and to avoid or minimise damage, disturbance or interference with Aboriginal sites.
8. Pursuant to that agreement, a survey was conducted for Pandell for a drilling program in the North Pool area and a survey report provided and dated February 2007.
9. Emergent informed Central Desert by letter dated 13 November 2008 that they had acquired this tenement from Pandell by Tenement Option Agreement dated 27 July 2007 and that a Deed of Assumption for the heritage agreement had been executed by Emergent for the heritage agreement. I have not received a copy of the executed Deed of Assumption referred to in this letter. A true copy of the letter is attached and marked “KEF3”.
10. On 17 November 2010, a ranger team from Central Desert came across approximately 938 sample bags that had been left on this licence in close proximity to an area that was not cleared for exploration activities. A true copy of a map showing the location of the sample bags is attached and marked “KEF4”.
11. The bags were spread across a large area and were at various stages of disintegration. A true copy of photographs of the area is attached and marked “KEF5”.
12. To my knowledge the only work that has been notified on this licence area is a drilling program conducted in or around 2008. A true copy of the notification letter is attached and marked “KEF6”.
13. As part of my job as Agreement Implementation Officer, the presence of the sample bags was reported to me by the ranger team and in turn I reported it for investigation by the Department of Indigenous Affairs. The ranger team, who reported the disturbance stated that they were concerned about the location of the bags close to the area identified as not cleared for exploration activities and within registered sites and the prospect of the materials polluting the land around that area. A true copy of the letter to the Department of Indigenous Affairs is attached and marked “KEF7”.
14. To this date I have not received a response to that letter despite contacting the Department of Indigenous Affairs and requesting an update on a number of occasions.
15. By email dated 23 March 2011, Emergent told me that they had gone onto the tenement area and removed the bags. To my knowledge, no notification in accordance with the heritage agreement was made for this work.
E53/1301
16. Tenement E53/1301 is currently live. 20% of the licence is held by Pandell and 80% of the licence is held by Emergent. A true copy of the Department of Mines and Petroleum screen printout is attached and marked “KEF8”.
17. On 16 March 2011, I received an email with attached letter from Emergent notifying of their intention to undertake non-ground disturbing activity over this tenement. A true copy of the letter is attached and marked “KEF9”.
18. On 6 April 2011, I requested by email that Emergent attend a meeting to discuss matters relating to their other tenements and their obligations under the heritage agreement. A true copy of the email is attached and marked “KEF10”.
19. To this date Emergent have not met with Central Desert to discuss this matter.
20. On 15 March 2011 I talked to the Wiluna native title claim group about this company and their behaviour. They were very concerned about Emergent’s lack of respect for the land. The claim group asked Central Desert to invite Emergent to a meeting to discuss this matter.
E53/893
21. Tenement E53/893 was held by Emergent and is now dead. A true copy of the Department of Mines and Petroleum screen printout is attached and marked “KEF11”.
22. This tenement is directly over the area covered by the new tenement. See the map attached and marked “KEF1”.
23. In December 2006, Central Desert anthropologist and traditional owners discovered that registered site #19678 Tarlka had been disturbed.
24. Central Desert had a meeting with Pandell, who owned the tenement at the time and who works closely with Emergent. A true copy of the minutes of that meeting are [sic] attached and marked “KEF12”.
25. The disturbance was reported to the Department of Indigenous Affairs who advised that the matter had exceeded the statute of limitations and as a result they were barred from prosecuting. A true copy of that letter is attached and marked “KEF13”.’
The grantee party challenges much of the material deposed to in Ms Fulton’s affidavit. In relation to the proposed non-ground disturbing activities on E53/1301, the grantee party states in its supplementary statement of contentions dated 7 October 2011 (at para 8) that it decided to postpone the activities after being advised of Central Desert’s concerns. In relation to the purported disturbance to Site ID 19678 on E53/893, the grantee party contends (at para 9) that it had ‘no involvement’ with the tenement at the relevant time and that any disturbance to the site is irrelevant for the purposes of this inquiry. In the absence of evidence to the contrary, I accept those submissions. The native title party has not adduced any evidence that the grantee party proceeded with the proposed non-ground disturbing activities on E53/1301 and Ms Fulton’s own evidence suggests that the grantee party did not have any interest in E53/893 at the time of the purported disturbance.
Concerning the sample bags found on E53/997, the grantee party submits that none of the bags were located in areas that were not cleared for exploration pursuant to the survey report. The grantee party submits that the sample bags were placed with the assistance and supervision of Wiluna monitors engaged by the grantee party for the duration of the drilling program and the bags were subsequently removed pursuant to a condition of the Program of Work Approval. I note that Ms Fulton does not state that the grantee party left the sample bags in areas not cleared for exploration but that the sample bags were left ‘in close proximity to’ such areas.
In the absence of evidence to the contrary, the Tribunal has tended to rely on a presumption of regularity that the grantee party will comply with relevant laws and act in accordance with any agreements entered into in relation to the proposed act. This approach was recently considered and upheld by DP Sumner in Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Drew Griffin Money [2011] NNTTA 91. However, where the past conduct of the grantee party is put in issue, it is necessary to consider whether the evidence demonstrates that the grantee party is indifferent to its obligations under the AHA and any relevant agreements: David Smirke and Others on behalf of the Jurruru People/Western Australia/Aurora Resources Pty Ltd [2009] NNTTA 142 at [44]. Having considered the material before me, I am not satisfied that Ms Fulton’s evidence supports a finding that the grantee party is likely to neglect its obligations under the AHA or any future agreement. While I accept that there was a significant period of time between the drilling activities that took place on E53/997 in late 2008 and the removal of the sample bags sometime in late 2010 or early 2011, the evidence does not establish that the grantee party did not act in accordance with the AHA, its heritage agreement with the native title party and the survey report produced in furtherance of that agreement. It is unnecessary for me to decide whether the removal of the sample bags constituted ‘non-ground disturbing activity’ for the purposes of the heritage agreement and should therefore have been notified within the terms of the agreement, but it is reasonable to infer that Central Desert would have communicated its concerns regarding the sample bags to the grantee party when they were discovered in November 2010. Ms Fulton’s email to the grantee party on 6 April 2011 suggests that Central Desert had raised the issue with the grantee party on at least one previous occasion, although it is unclear whether this happened before or after the removal of the sample bags. In this context, the removal of the bags could be viewed as an attempt by the grantee party to remediate a potential (and perhaps inadvertent) breach of its obligations under the AHA and the heritage agreement once the matter had been brought to its attention by Central Desert. Whatever the precise course of events, I do not consider that the removal of the sample bags has any bearing on the likelihood that the grant of the tenement will result in interference with sites of significance, and I have not found it necessary to resolve the issue.
As will be evident from my discussion of s 237(b) below, my decision in this matter would not have changed had the allegations contained in Ms Fulton’s affidavit been made out. Nevertheless, those allegations were put before me and I have found it necessary to deal with them. Needless to say, I am not satisfied that Ms Fulton’s evidence supports the native title party’s contention that consultation under s 31 is required in this case.
Contentions provided by the Grantee Party
The grantee party filed contentions on 26 August, 7 October and 19 December 2011. The grantee party states that it is aware of its obligations under the AHA and the Aboriginal and Torres Strait Islander Heritage Act 1972 (Cth) and undertakes to conduct heritage surveys of the tenement area prior to conducting ground disturbing works. The grantee party acknowledges that ground disturbing activities could interfere with sites or other areas significant to the native title party, but confirms its intention to consult with the native title party in order to avoid any breach of the AHA or interference with areas or sites of significance. The grantee party states its belief that the grant of the proposed licence will not greatly interfere with the community or social activities of the native title party, but reiterates its intention to avoid direct interference with the community life of the Wiluna people.
The grantee party’s supplementary contentions filed on 7 October 2011 addressed material raised in the affidavit of Kate Elizabeth Fulton, sworn 22 August 2011. In further supplementary contentions submitted on 19 December 2011 in response to the affidavit of Mr Frankie Wongawol, the grantee party alludes to a reference made by Mr Wongawol to the Goldfields Highway (which passes through the tenement) and submits that the proposed exploration activity will have less impact on the area than the existing highway. The grantee party has not provided evidence of the activities it intends to carry out on the proposed licence.
Sites of Particular Significance (s 237(b))
In relation to s 237(b), the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated above at [15], the Register kept under the AHA shows there are two ‘Other Heritage Places’ within the proposed licence, but this does not mean there may not be sites or areas of particular significance to the native title party over the tenement area or in the vicinity. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA and ss 20(5) and 63 of the Mining Act to contend that the grant of the tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The Wiluna deponents state in their affidavits that four jukurrpa (or dreaming tracks) traverse the proposed licence: Papanymaru (Goanna Woman Dreaming), Karlaya (Emu Dreaming), Papa (Dingo Dreaming) and Wati Kutjara (Two Goanna Men Dreaming). They do not provide any details about the stories associated with each jukurrpa or give any indication of the paths they take through the tenement area. The Wiluna deponents also state that there are places within the proposed licence that are ngulu (or closed) for women, but do not identify those sites. Mr Maurice Wongawol attests to the existence of important artefacts in or ‘very near’ the proposed licence, but does not give any further information about the location of these artefacts.
The native title party’s submissions, relying on the evidence of Mr Maurice Wongawol, Mr Thompson and Dr Kruse, and supplemented to a certain extent by the affidavit of Mr Frankie Wongawol, advance the contention that there are sites and areas of particular significance to the native title party within the area of the proposed licence. Firstly, the native title party asserts that there are at least four jukurrpa tracks passing through the tenement, being the Papanymaru, Karlaya, Papa and Wati Kutjara, which are said to be areas of particular significance to the Martu people, and also that there are two registered sites, being the quarry site, Site ID 17234, and the Tarlka site, Site ID 19678, which are also said to be sites of particular significance to the Martu people. Secondly, the native title party contends that the tenement is located in an area which is site rich, and thirdly, it argues that the fabric of the country on or immediately adjacent to the tenement is imbued with a pervasive spirituality, such that any unauthorised entry would amount to interference within the meaning of the subsection.
In relation to the question of the dreaming tracks and the sites, the native title party, in its contentions, refers to the affidavit of Mr Maurice Wongawol, Mr Thompson, and Dr Kruse, and also presumably the later filed affidavit of Mr Frankie Wongawol. The three Wiluna deponents all refer to those dreaming tracks running through the area of the tenement. Dr Kruse confirms that those jukurrpa pass through the tenement, but indicates that the basis for his information is the affidavits of Mr Thompson and Mr Maurice Wongawol. Dr Kruse further confirms that, on the basis of his research in the past with traditional owners in the area, he has previously been advised on a number of occasions that the Wati Kutjara dreaming is associated with this area. The native title party also cites the information in relation to the two registered sites again from the affidavits of Mr Maurice Wongawol, Mr Thompson, and Dr Kruse. The paragraphs cited by the native title party in relation to the affidavits of Mr Maurice Wongawol and Mr Thompson do not in fact make reference to these sites. The paragraphs cited by the native title party in relation to Dr Kruse’s affidavit suggest that on the basis of his knowledge the Tarlka site, which is located within the tenement, is a manifestation of the Wati Kutjara jukurrpa. He also confirms that the Wati Kutjara jukurrpa is linked to many other jukurrpa, including the Karlaya and the Papa. Further, Dr Kruse deposes to the fact that he has been told on numerous occasions by senior men when passing along the road near the area of the proposed tenement that two hills in the area, being Mt Russell and Mt Bartle, are also associated with the Wati Kutjara, and that he has heard songs sung by traditional owners about sections of the Wati Kutjara dreaming track associated with Mt Bartle and Mt Russell. He further deposes to the fact that those hills are so well known to the Martu that they are referred to frequently as ‘the Wati Kutjara hills on the Meekatharra road’. Dr Kruse states that in his estimation it was likely that the geographical features associated with Mt Bartle and Mt Russell, including the peak and the flanks, would likely comprise a significant proportion of the area of the proposed tenement. He then concludes ‘[c]onsequently, it is my opinion, in this particular case a significant proportion of the tenement application is of cultural significance to the Wiluna native title claimants’. The question, however, is whether or not there are sites of particular significance to the native title claimants within the area. On the face of the evidence it did seem quite clear that there are sites of cultural significance, as Dr Kruse has deposed to, but whether or not they are of such a nature as to qualify as sites of particular significance is unclear.
None of the Wiluna deponents make specific reference in their affidavits to either the specific registered sites, that is, the quarry sites or Tarlka, or to Mt Bartle or Mt Russell. Mr Frankie Wongawol makes reference to the fact that there are sites in there where women cannot go and to important hills. Mr Norman Thompson says there are places which are ngulu for ladies, and that the ‘[j]ukurrpa is the dreaming, sacred, special. Jukurrpa is all through there’. Mr Maurice Wongawol says that there are ngulu places for women within the tenement area, and that in or ‘very near’ the tenement are important artefacts that were left by the jukurrpa.
The map produced by the Tribunal indicates that the Tarlka site covers an area in the centre of the tenement taking up approximately 40 per cent of the total area of the tenement. It would also appear from that map that Mt Russell, and probably Mt Bartle, are within the registered site area.
It is notable that in his affidavit, Dr Kruse seeks to make a distinction on behalf of the Martu people between the significance of the country understood as generally formed in the creative epoch by mythic beings, and areas and locations associated with the specific activities of mythic beings and the significance of their actions on the Martu way of life. He deposes to the fact that areas and locations associated with the specific activities of mythic beings are typically deemed the most culturally significant by Martu people and their protection is considered paramount. He states ‘[t]his is the basis by which Martu people distinguish country which is generally spiritually significant – as Martu religion is intrinsically linked to land and country – from specific culturally significant areas requiring protection from activities that are perceived to cause damage or harm’. Later he deposes to the fact that Martu people believe that they have no choice in matters regarding jukurrpa and the protection of areas associated with particular rituals and spiritual knowledge, and that they are obliged by their customary responsibility and by the wider jural Martu public, and other peoples of the Western Desert Cultural Bloc, to look after jukurrpa and cultural significant locations in the area. It would seem to me to be reasonable on the basis of this classification to come to the conclusion that the areas the subject of the unspecified dreaming tracks within the proposed tenement area are areas which might be deemed to be generally significant, whereas, arguably, the sites, particularly the Tarlka site, and Mt Bartle and Mt Russell, could be regarded, being manifestations of specific activities of mythic beings, as specific culturally significant areas and therefore of particular significance to the Martu people. If such a distinction were not drawn, it would be, on the argument of Dr Kruse, necessary to characterise all Martu land, including the land which is covered by the current application, as of particular significance to the Martu people. The difficulty with this evidence, as is discussed below, is that the factual material upon which an assessment of the significance of the sites is contained not in the affidavits of the Wiluna deponents, but in that of Dr Kruse. Again, the only specific information in support of that contention is the information contained in Dr Kruse’s affidavit, both about the nature of the significance of jukurrpa to Martu people, and the significance of Mt Russell and Mt Bartle near the associated Tarlka site.
In its contentions the native title party cites my findings in the matter of Les Tullock and Ors on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 at [40] and associated cases, to the effect that jukurrpa tracks by their very nature are not areas, sites, or places of particular significance which are readily identifiable by persons other than those instilled in the mysteries of the jukurrpa, therefore not withstanding the best intentions, inadvertent interference is distinctly possible if the grantee party enters the area without the guidance of the native title party. That is an accurate rendering of the substance of what I said in relation to that matter, however I should say that those observations were made in the context of the evidence presented in that particular case, which is significantly different from that presented in this case. That case concerned an area known as Abercromby Creek within, or on the shore of, the Lake Way area. As I said in that decision (at [39]):
‘The Lake Way area comprises a series of inextricably interconnected sites or areas associated with a number of jukurrpa dreaming stories which are central to Martu religion. Two of these sites or areas are the Abercromby creek and soak system in which the proposed tenement is located, and Lake Way itself, which includes a surrounding seasonal overflow or “wash” area and encroaches upon the proposed tenement. It is also clear from the careful language used by the deponents that cultural information regarding the Lake Way area is extremely sensitive and restricted to certain members of the native title party.’
The evidence in that matter was in fact restricted, and consequently not included in the body of the decision. The evidence in this matter has not been included in the body of the decision, but it was not restricted on the basis that it did not contain sufficient factual material to justify such a restriction. That is reflective of the absence of detail contained in the evidence of the Wiluna deponents.
The next two contentions of the native title party, to the effect that the tenement is located in a site rich area and that the fabric of the country is imbued with a pervasive spirituality, seek to make the same point. The particulars of the contention that the tenement is located in a site rich area make reference to four jukurrpa and associated sites, and the fact that areas and sites associated with jukurrpa are of paramount and particular significance to the native title party. These particulars are based on the evidence of both Mr Thompson and Mr Maurice Wongawol, referring back to paragraphs already cited in support of the other assertions, and paragraphs referred to above in the affidavit of Dr Kruse. The native title party’s contention regarding the pervasive spirituality of the area relies on Dr Kruse’s evidence regarding the significance of jukurrpa to the Martu people and other groups in the Western Desert Cultural Bloc.
As I have discussed above, the Wiluna deponents state that four jukurrpa traverse the tenement area but do not indicate the paths they take through the tenement or describe their underlying significance. Dr Kruse provides considerably more detail about the general significance of jukurrpa in the traditions of the native title party. Nevertheless, he does not provide any information about the stories or myths associated with the jukurrpa identified by the Wiluna deponents, though he does attest that Tarlka is a manifestation of the Wati Kutjara jukurrpa. As I mentioned above at [36], Dr Kruse does state that senior men have on several occasions, while travelling through the tenement on the Goldfields Highway, pointed out to him the significance of Mt Russell and Mt Bartle and their association with the Wati Kutjara dreaming. However, Dr Kruse’s evidence regarding the jukurrpa identified by the Wiluna deponents is based on the affidavits of Mr Thompson and Mr Maurice Wongawol. In its submissions, the Government party sought to challenge the validity or weight that should be given to Dr Kruse’s evidence on that basis, contending that the evidence of the Wiluna deponents is so lacking in detail that Dr Kruse’s evidence is ‘without a proper foundation for the purposes of this objection application and so cannot be relied upon by the Tribunal to justify the determination sought by the [native title party]’ (Government party contentions dated 14 December 2011, para 5). In support of that contention, the Government party cites Pollock v Wellington (1996) 15 WAR 1, Anderson J at 3-4 on the need to provide a proper factual basis for expert evidence.
In Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’), DP Sumner considered the Federal Court’s observations about the role of anthropological evidence in native title cases and its application to objections to the expedited procedure. According to DP Sumner (at [35]-[36]):
‘[35] The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work, which accords with the member of the native title claim group’s evidence, is probative: Neowarra v Western Australia [2003] FCA 1402 at [388]; Rubibi Community v Western Australia (No 5) [2005] FCA 1025 at [263]; Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150; at [291] to [292].
[36] As the Full Court of the Federal Court has noted, an anthropologist such as Mr Langford may observe and record matters relevant to both the social organisation of a native title claim group and the nature and content of their traditional laws and traditional customs. There may also be circumstances in which an anthropologist may give evidence about the meaning and significance of what Aboriginal witnesses say and do so as to explain or render coherent matters which, on their face, may be incomplete or unclear: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431 at [89].’
In that case, DP Sumner found that the Federal Court’s observations supported the Tribunal’s acceptance of the evidence. However, the relationship in this matter between the anthropological evidence and the primary evidence provided by members of the native title party is very different to what was before DP Sumner in Tarlpa. There, the anthropological evidence elaborated on matters that had already been addressed in the evidence of a member of the claim group which made the objection. In the present case, Dr Kruse attests to matters that were either not dealt with adequately (namely, the significance of jukurrpa in the traditions of the native title party) or not addressed at all (such as the significance of Tarlka, Mt Russell and Mt Bartle) in the affidavits of the Wiluna deponents.
Expert anthropological evidence may assist the Tribunal to contextualise or elucidate matters raised in the evidence of Aboriginal witnesses. However, anthropological evidence should not be relied upon to supply information that does not appear in the primary evidence. Anthropological evidence that relates to the nature and content of traditional laws and customs, being within the knowledge and expertise of anthropologists, may well be accepted on its own. However, when it comes to the significance and location of particular sites the direct evidence of members of the native title party should be preferred to the evidence of anthropologists. The probative value of anthropological evidence in these matters will depend on the extent to which it accords with the evidence of the traditional owners. In the present matter, the evidence of the Wiluna deponents does not provide an adequate foundation on which to assess the evidence of Dr Kruse. In the circumstances, I am not prepared to make a finding about the significance of the sites to which Dr Kruse refers, or the significance of the area in general, in the absence of corroborative evidence from members of the native title party.
The native title party is required to provide sufficient detail and specificity to allow the Tribunal to make the predictive assessment in accordance with s 237(b). On the basis of the evidence of the Wiluna deponents, I do not consider that the native title party have satisfied this requirement. Mere reference to the existence of a jukurrpa or ngulu place without identifying the nature of its significance or its location does not provide an adequate basis for the Tribunal to make a finding about the existence of sites or areas of particular significance on the proposed licence, let alone a finding that the area in which the tenement is located is site rich or imbued with a pervasive spirituality such that any unauthorised entry on the tenement area would constitute relevant interference.
While I accept that there may be sites of significance to the native title party within the proposed licence, the evidence of the Wiluna deponents is insufficient to establish the existence of sites of particular significance within the tenement area. The native title party’s contention that the proposed licence is located within a site rich area is not established on the evidence. I am satisfied that the grantee party is cognisant of its obligations under the AHA and has undertaken to take appropriate steps to avoid interference with sites. The grantee party’s willingness to execute an RSHA in favour of the native title party (which is a condition of the proposed licence) reinforces my conclusion that the grant of the proposed licence is unlikely to lead to interference with sites of significance. The grantee party is on notice about the existence of both of the sites currently on the DIA Register (and which are outlined at [14] of this determination) and the evidence given in this matter has put the grantee party on notice about the probable existence of other sites within the tenement area that are also protected under the AHA. I am satisfied that the regulatory regime will be sufficient to prevent interference with these sites.
Sections 237(a) and 237(c)
The native title party has not adduced any evidence or made any contention in relation to ss 237(a) and 237(c) and has ‘amended’ its objection to remove any reference to those sections of the Act. The only material before me in relation to these matters are the Government party’s contentions, the evidence submitted in support of those contentions and the grantee party’s contentions, and I am satisfied on that basis that the grant of the proposed licence is unlikely to result in interference or disturbance of the kinds contemplated by ss 237(a) and 237(c).
Determination
The determination of the Tribunal is that the grant of exploration licence E53/1584 to Emergent Resources Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
23 February 2012
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