WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/JML Resources Pty Ltd
[2013] NNTTA 8
•1 February 2013
NATIONAL NATIVE TITLE TRIBUNAL
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/JML Resources Pty Ltd, [2013] NNTTA 8 (1 February 2013)
Application No: WO2012/0199
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) & Others on behalf of the Wiluna Native Title Claimants (WC1999/024) (native title party)
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The State of Western Australia (Government party)
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JML Resources Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 1 February 2013
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)
Aboriginal Heritage Act 1972 (WA)
Cases:Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48
BenWard & Ors on behalf of the Miriuwung-Gajerrong People/Western Australia/CRA Exploration Pty Ltd [1996] NNTTA 9
Cheinmora Resources v Heron Resources (2005) 196 FLR 250
Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24
Freddie v Western Australia (2007) 213 FLR 247
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
Maitland Parker and Others on behalf of the Martu Idja Banyjima People/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia (2008) 167 FCR 340
Silver v Northern Territory (2002) 169 FLR 1
Walley v Western Australia (2002) 169 FLR 437
Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133
Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150
WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17
Representative of the Mr Mike Allbrook, Central Desert Native Title Services
native title party: Ms Irene Assumpter Akumu, Central Desert Native Title Services
Representatives of the Mr Cheyne Beetham, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Mines and Petroleum
Representative of the Mr Michael Giles, South Boulder Mines
grantee party:
REASONS FOR DETERMINATION
On 16 November 2011, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E69/2972 (‘the proposed licence’) to JML Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises 63 graticular blocks (approximately 194.83 square kilometres) situated 107 kilometres north-west of Wiluna in the Shire of Wiluna. The proposed licence overlaps the Wiluna registered native title claim (WC1999/024) by 99.88 per cent and the registered native title claim of the Yugunga-nya People (WC1999/046) by 0.12 per cent. No other native title claim or determination area overlaps the proposed licence area.
On 15 March 2012, the native title party lodged an expedited procedure objection application with the Tribunal in respect of the proposed licence (designated by the Tribunal as WO2012/0199).
In accordance with its standard practice in such 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.
Pursuant to those directions, the Department of Mines and Petroleum (‘DMP’) provided evidence to the Tribunal and other parties on behalf of the Government party on 16 July 2012; the native title party provided a statement of contentions (‘NTP Contentions’), the affidavit of Mr Frankie Wongawol and the unsigned and undated statement of Ms Tracey Wongawol on 24 September 2012; and the Government party provided a statement of contentions on 31 October 2012 (‘GVP Contentions’). At a listing hearing held on 22 November 2012, the grantee party informed the Tribunal that it intended to rely on the Government party’s contentions. The native title party subsequently provided Ms Wongawol’s statement in the form of a sworn affidavit on 3 December 2012 and, with the Tribunal’s leave, provided a statement of contentions in response to the Government party’s contentions on 10 December 2012 (‘NTP Reply’).
On 26 November 2012, I was directed by President Graeme Neate to constitute the Tribunal for the purpose of the inquiry. I am satisfied that the objection can be adequately determined on the papers (as per s 151(2) of the Act).
Legal Principles
Section 237 of the Act provides:
‘237 Act attracting the expedited procedure
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’
In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [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 [24]–[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions to be imposed on the exploration licence in Walley (at [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 (2008) 167 FCR 340). I also adopt the findings of Deputy President Sosso in Silver v Northern Territory (2002) 169 FLR 1 (‘Silver’).
Evidence in Relation to the Proposed Act
Tengraph Quick Appraisal documentation provided by the Government party establishes the underlying tenure of the proposed licence as follows:
·Pastoral Leases 3114/1157 (Ned’s Creek) and 3114/1049 (Cunyu) overlapping at 98.5 per cent and less than one per cent respectively;
·Vacant crown land at 1.4 percent;
·Road Reserve at 0.1 per cent; and
·Crown Reserve 29839 (Protection of Rabbit Proof Fence) at less than one per cent.
The Quick Appraisal also shows that the area within the proposed licence has been subject to 25 exploration licences active at various times between 1986 and 2008, overlapping the proposed licence from 62.0 per cent to less than one per cent, with an average lifespan of 3.5 years; two prospecting licences granted in 1994 and surrendered in 1995, overlapping at 0.6 per cent and at less than one per cent; 12 minerals claims active at various times between 1970 and 1973, overlapping from 0.6 per cent to less than one per cent; one temporary reserve granted in 1959 and cancelled in 1964 and overlapped the entire area; and one temporary reserve overlapping at 18.5 per cent which was granted in 1979 and cancelled in the same year. According to the Quick Appraisal, the services affected by the proposed licence include two woolsheds located at Cunyu, nine tracks, eight fence lines, two yards, one well/bore and one well/bore with windmill.
It is apparent from Government party documentation and Tribunal mapping that there are no Aboriginal communities identified within the proposed licence. An extract from the Aboriginal Sites Database maintained by the Department of Indigenous Affairs (‘DIA’) provided by the Government party indicates that there is one Aboriginal site registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the proposed licence (Site ID 2669; Tyinki-Tyinki; registered; closed access; no restrictions; mythological).
A draft Tenement Endorsements and Conditions Extract included in the Government party’s submissions indicates that the grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21], Conditions 1-4). Additional conditions are to be imposed as follows:
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.Mining on a strip of land 30 metres wide with the Rabbit Proof Fence as the centre-line being restricted to below a depth of 15 metres from the nature surface.
The following endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will also 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.
The Government party states in its contentions (at paragraph 18) that a further condition will be placed on the grant of the proposed licence requiring the licensee, at the request of the native title party, to execute in favour of the native title party the Regional Standard Heritage Agreement as follows:
In respect of the area covered by the licence the Licensee, if so requested in writing by the Wiluna People, the applicants in Federal Court application no. WAD 6164 of 1998 (WC99/24), such request being sent by pre-paid post to reach the Licensee’s address c/- PO Box 1043, West Perth WA 6872, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Wiluna People the Regional Standard Heritage Agreement endorsed by peak industry groups and the Ngaanyatjarra Land Council.”
Contentions and Evidence provided by the Native Title Party
In its contentions, the native title party states (at paragraphs 1.3 and 1.4) that the basis of its objection is that the exercise of rights under the proposed licence will be contrary to s 237(b) of the Act. The native title party does not seek to pursue its objection in relation to ss 237(a) or 237(c).
In relation to the proposed licence, the native title party makes the following submissions:
·The proposed licence contains sites and areas of particular importance (at paragraph 3.24);
·The proposed licence is located in an area which is site rich and of particular significance (at paragraph 3.25);
·The nature of the country on, and surrounding, the proposed licence is such that any entry onto parts of the proposed licence or the surrounding country which has not been agreed with the native title party, would be likely to result in interference within the meaning of s 237(b) (at paragraph 3.26);
·The nature and number of sites and areas of particular significance within and around the proposed licence reduces the utility of an endorsement on the grant of the proposed licence that draws the grantee party’s attention to the AHA and, consequently, it is incorrect to assume that interference is unlikely (at paragraph 3.27); and
·Meaningful consultation and negotiation between the native title party and the grantee party are necessary to ensure that sites or areas of particular significance are not likely to be interfered with (at paragraph 3.28).
In support of its contentions, the native title party relies on the affidavits of Mr Wongawol (sworn 13 September 2012) and Ms Wongawol (sworn 29 November 2012).
Mr Wongawol’s affidavit is made in the following terms:
I, Frankie Wongawol, of Lennon Street, Wiluna, pensioner, in the State of Western Australia, hereby swear and say on oath as follows:
1. I am a traditional owner in the Wiluna native title claim area (WAD 6164 of 1998). I am a senior initiated man (wati) and I have cultural authority for the area of the tenement application E69/2972 (Tenement).
2. I make this affidavit in support of the Statement of Contentions of the Objector in an inquiry to the expedited procedure matters.
3. The information in this affidavit are all things that I know to be true.
4. I have been shown an A1 size map of the tenement for this matter by a staff member of Central Desert Native Title Services, an A4 copy of which is attached and marked Annexure FW1.
5. I’ve gone through all the law, from Strelley, up to Well 33 and back to Fregon in South Australia. Me and others have been through all of those law things, including with the other mob at Tjuntjunjarra. We’ve been doing law at Cosmo, and that mob also come over here and do law at Bondini.
6. Our Martu law is really strong. There is same law for everybody in Martu mob. When we was at Cosmo, old people been singing songs all the way through Willuna to the other side, kakarra (east).
7. I’m one of the bosses for that area on the map, including that Tenement. I been all around that area, been taken around by Marakuju (Norman Thompson), he one of the other bosses for that area. I was sat down and the old people said you’re the one. I am the boss family way and law business way. That’s how I can speak for that place, that Tenement.
8. There is jukurr all along that country, including for that Tenement. I know where that jukurr is. People gotta talk to me about the jukkur because I know it. Being a boss for country means knowing about the jukurr. The old people hold it. It belongs to us, we gotta look after it.
9. Once because I didn’t look after country properly, I got speared, even though I didn’t know people were taking things and going where they shouldn’t. I got speared anyway, even though it wasn’t my fault, because it is our law.
10. There are lots of special places in that Tenement and in the country around it. There are songs there, from the jukurrpa. So much jukurrpa in that area, both places where they sat down and places where they just travelled over.
11. People have to stay away from the places where the jukurrpa sat down. They got to stay way back. Those places are sacred. You can’t do nothing in those areas without talking to the boss for country. You have to be careful around areas where there is lots of jukurrpa.
12. There is a ladies jukurr in the Tenement. I can’t say the Martu name of the ladies’ jukurr because I’m not allowed to. Whitefellas call the ladies’ jukurr in this area the Seven Sisters Dreaming. This is an important ladies jukurr and it travels through the area of the Tenement down from Well 10 on the Canning Stock Route.
13. There is water in the Tenement which was made by the jukurr as it travelled. You can see that water on the map; it is coming from the yuparra (western) side down through the Tenement to the kakarra (eastern) side. This water was made by the jukurr and that makes it really important to the traditional owners.
14. There are places around this water which are not okay for men to go to, because they are places only for ladies. There are also ngulu (secret, sacred) places for men in this area too, that only initiated men can go to. I know this because I know the story for that country, and the story for that jukurr.
15. I know about the ladies jukurr because I was given the information to look after. Marakuju’s wife told me about the story and asked me to look after the information. I was asked this even though it is a ladies’ story, but it means I gotta be careful about what I say about it.
16. I know that a Mibbeyean Spring and Mibbeyean Creek are really important places. They are from that ladies jukurr but I can’t talk about why in this paper. They are south-west of the Tenement, but they are connected to that water running through the Tenement by the water.
17. If an explorer went in that Tenement, especially round that water, without the right Martu people with them it would be a problem because the jukurrpa would be hurt or damaged. Just the wrong person walking around could hurt or damage the jukurrpa, same with chipping at rocks. People have to check with Wati like me about where it is okay to walk on this land.
18. Zebra Finch jukurr is chasing water through the Tenement. He is all over the place in this country. The wind keeps blowing him around and whenever he lands he makes the freshwater.
19. A lizard jukurr goes across this land too – the djildi jukurrpa (perenji lizard) came through this land and made water, he made salt water and fresh water sitting near to each other. He made the salt water on one side and the fresh water on the other side around near Dingy Bore, which you can see on the map. That is not far from that Tenement. He travels through the Tenement and then stops at that country near Dingy Bore.
20. The Moon jukurrpa runs through that lake country to the north of the tenement and is connected to the area in the Tenement. He is close to the Tenement and that is a bit of a worry for me as a boss for that country. The water in the Tenement is connected to that lake country and that jukurrpa up there. The Mibbeyan Creek just to the south-west of that Tenement comes out of Lake Nabberu too. If you do something to that water down in the Tenement then it will hurt and damage places to the north too.
21. That northern part of the tenement is too close to Lake Nabberru – they can hurt and damage the creeks in the Tenement just by the wrong person wandering around without talking to the traditional owners and it will hurt Lake Nabberu.
22. If a company wants to come to this Tenement, like chipping rocks and taking soil samples they need to talk to us first. It is very important that when people go out there they have the right traditional owners with them to tell them where it is safe for men to go and where it is safe for ladies to go. Talking to the traditional owners is the only way to protect the country from being hurt and damaged by people doing the wrong thing.
23. It is also for the explorer that they need to come talk to us. If whitefellas walking around do the wrong thing, go the wrong place, they can get sick. Might get cancer or something. If you do the wrong thing in the country, in that Tenement, then they might take your spirit, whether you black or white. Part of being a boss for country is I gotta make sure that people don’t get sick from doing the wrong thing.
24. It is really important to me to make sure people don’t hurt the country, hurt the jukurrpa. It is my job to look after it. If other people hurt or damage the country, I can be punished under our traditional law.
Ms Wongawol’s affidavit is made in the following terms:
I, Tracey Wongawol, of Wiluna in the State of Western Australia, hereby swear and say on oath as follows:
1. I am a traditional owner in the Wiluna native title claim area (WAD 6164 of 1998). The area of tenement application E69/2972 (Tenement) is part of my family’s country, our ngurra [home country]. My mother, Lorna Bond, has given me the okay to speak about this country on behalf of the ladies in our family.
2. I make this affidavit in support of the Statement of Contentions of the Objector in an inquiry to the expedited procedure.
3. All of the information I give in this affidavit I know to be true.
4. I have been shown an A4 map of the Tenement, because a copy was sent to me by Central Desert Native Title Services.
5. The area of the Tenement is almost all on Cunyu pastoral station, which often call ‘Cunyu country’. My mother and my aunty taught me about this country, and some of the special places in it. My mum has told me that it is okay for me to give this affidavit.
6. Parts of Cunyu country, including the area of the Tenement, are really special for the ladies. It is through this country that the Seven Sisters jukurrpa [dreaming] travels. When the Seven Sisters are travelling around in this Cunyu country, they are looking around at the country, spending time here and there, gathering food.
7. There are a number of places in Cunyu country that are really important for ladies that come from that jukurrpa. The jukurrpa travels through Mibbeyean Pool, and sits down there. That is an important place for ladies, and we take our kids there. I went swimming there when I was a kid too. There is also another rockhole, nearby, where the jukurrpa sat down.
8. There are lots and lots of water places south of Lake Nabberu, including around that Six Mile Well, in that Tenement. All of the big creeks in this country, in that Tenement, they were made by the jukurrpa. That is the Seven Sisters, going gumbu, doing the toilet. When we see the big gum trees around that water, we know where that jukkurpa has been, we can see it in the country. The jukkurpa made that water, made those creeks.
9. These water places, they are really important for us ladies. They are where our dreaming made the country, so we have to protect them. There are places around this water where men can’t go; they are places just for ladies.
10. We can hunt and camp in our special places, and take our kids. Our kids aren’t afraid of walking around those places with us, because we can look after them and tell them where to go.
11. There are places in that Cunyu country that aren’t safe for ladies. Certain parts of the country, I have to go around with men, as they tell us where to go. Not far from that Mibbeyean Pool, there is a creek where ladies can’t go – that water comes down from Lake Nabberu, and it is a special place for men. The water connects that creek to those places at Lake Nabberu to the north of that Tenement.
12. We worry about people going out to that country without having the traditional owners with them. That jukkurpa, that Seven Sisters story, it goes all the way through the western desert. It is an important story for ladies all over the desert country. When it is in our country, we have to look after the story for everyone else, for all the other traditional owners. It is really important that we don’t let anyone hurt that jukurrpa.
Mr Wongawol states that he is a senior initiated man (wati) and has cultural authority for the area of the proposed licence. Ms Wongawol states that the area of the proposed licence is part of her family’s ngurra, or home country, and she has been authorised to speak about the country on behalf of the women of her family by her mother, Ms Lorna Bond. I accept that Mr Wongawol and Ms Wongawol have the necessary authority to speak on behalf of the native title party in relation to 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 [11], the Register maintained under the AHA shows that there is one registered site within the proposed licence. However, this does not mean there may not be others sites or areas of significance to the native title party in the proposed licence or the surrounding areas. Nor does it mean that sites registered under the AHA are necessarily sites of particular significance within the meaning of s 237(b). 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.
Mr Wongawol describes several jukurr/jukurrpa (or dreaming tracks) that traverse the proposed licence, as well as sites associated with each jukurrpa. Ms Wongawol’s evidence is concerned primarily with the Seven Sisters jukurrpa and related sites.
Seven Sisters Jukurrpa: Ms Wongawol states (at paragraph 5) that the proposed licence is located within an area often referred to as Cunyu country, which is synonymous with the Cunyu pastoral station. Ms Wongawol deposes (at paragraph 6) that parts of Cunyu country (including the area of the proposed licence) are considered ‘really special for ladies,’ being an area through which the Seven Sisters jukurrpa travels. Ms Wongawol states (at paragraph 7) that there are ‘a number of places’ that are ‘really important for ladies’ within Cunyu country which originate from the jukurrpa, and specifically mentions Mibbeyean Pool and a nearby rockhole, being places where the jukurrpa ‘sat down.’ Ms Wongawol also states (at paragraph 8) that ‘[a]ll of the big creeks’ in Cunyu country, including in the proposed licence, were made by the jukurrpa. One of the water places south of Lake Nabberu is Six Mile Well, which is in the proposed licence area. Ms Wongawol deposes (at paragraph 8) that these water places ‘are really important for us ladies’ and notes that there are areas around the water where men are not permitted. Mr Wongawol states (at paragraph 12) that the Seven Sisters jukurr travels through the proposed licence from Well 10 on the Canning Stock Route. Mr Wongawol also states (at paragraph 13) that the water in the proposed licence was made by the jukurr as it travelled and that there are places around the water where men are not allowed to go (paragraph 14). Mr Wongawol also deposes (at paragraph 16) that Mibbeyean Spring and Mibbeyean Creek were created by the Seven Sisters jukurrpa and are ‘really important places,’ though he is not able to say why. Mr Wongawol states that Mibbeyean Spring and Mibbeyean Creek are to the south-west of the proposed licence, but notes that they are connected to the water running through the proposed licence (paragraph 16). Mr Wongawol states (at paragraph 17) that if an explorer were to walk around the proposed licence without the right Martu people, particularly near the water, the jukurrpa would be hurt or damaged.
Zebra Finch Jukurr: Mr Wongawol states (at paragraph 18) that the zebra finch jukurr is ‘chasing water’ through the proposed licence, and is ‘all over the place in this country.’ Mr Wongawol also states that wherever the jukurr lands ‘he makes the freshwater.’
Lizard Jukurr: Mr Wongawol states (at paragraph 19) that a lizard (or djildi) jukurr also travels through the proposed licence and stops at the country near Dingy Bore, which he says is not far from the proposed licence. Mr Wongawol also states that the jukurr ‘made the salt water on one side and the fresh water on the other side around near Dingy Bore.’
Moon Jukurrpa and Lake Nabberu: Mr Wongawol states (at paragraph 20) that the Moon jukurrpa ‘runs through the lake country to the north’ of the proposed licence and ‘is connected to the area’ in the proposed licence. Mr Wongawol states that the jukurrpa is ‘close’ to the proposed licence and says that it is ‘a bit of a worry for [him] as a boss for that country.’ Mr Wongawol states that the water in the proposed licence is connected to the lake country and the Moon jukurrpa and says that Mibbeyean Creek ‘comes out of’ Lake Nabberu as well. Mr Wongawol deposes that the northern part of the proposed licence is ‘too close’ to Lake Nabberu and that if the water in the proposed licence is interfered with, it ‘will hurt and damage places to the north too.’ Mr Wongawol states (at paragraph 21) that the creeks in the proposed licence could be damaged ‘just by the wrong people wandering around without talking to the traditional owners,’ which will in turn will hurt Lake Nabberu. Ms Wongawol also states (at paragraph 11) that water comes down from Lake Nabberu to a creek near Mibbeyean Pool, which connects the creek to places at Lake Nabberu.
Ngulu Sites: Mr Wongawaol states (at paragraph 14) that there are places around the water where men are not permitted to go as well as ngulu (secret, sacred) places which only initiated men can enter. Ms Wongawol also states that there are places in the proposed licence around the water where access is restricted to women, as well as other places in Cunyu country where it is not safe for women, including the creek near Mibbeyean Pool.
The native title party submits (at NTP Contentions, paragraph 3.24) that there are several sites and areas of particular significance within the proposed licence, including the Zebra Finch jukurr and the Djildi or lizard dreaming, the various water bodies created by the Seven Sisters jukurrpa, and other places that are ngulu. The native title party also submits (at NTP Contentions, paragraph 3.25) that the proposed licence is located in an area that is site rich and of particular significance in accordance with their traditions. In particular, the native title party contends that Lake Nabberu, which is located to the north of the proposed licence, is given particular significance by its association with the Moon jukurrpa referred to by Mr Wongawol and is connected to the country within the proposed licence through the system of rivers and creeks that run through it.
Jukurrpa
The native title party contends (at NTP Contentions, paragraph 3.24(a)) that ‘when jukurrpa travel through a landscape, they transform it, leaving behind sacred sites and places, and imbuing areas with particular significance.’
The Government party contends (at GVP Contentions, paragraph 45) that the majority of the sites identified by the native title party, such as Mibbeyean Pool, Mibbeyean Creek and Lake Nabberu, are located some distance from the proposed licence. The Government party submits (at GVP Contentions, paragraph 53(c)) that the native title party’s evidence about the Zebra Finch jukurr, Seven Sisters jukurrpa and Djildi dreaming reflect a ‘general spiritual concern to which s 237(b) of the NTA does not apply’ and that, apart from reference to water bodies created by the Seven Sisters jukurrpa, there is no evidence of specific areas or sites to which the concern relates. In this regard, the Government party argues that the spiritual or emotional concerns of the native title party must attach to physical interference with an identified area or site of particular significance. In the Government party’s submission, beliefs about jukurrpa are ‘close to ubiquitous’ among Aboriginal people in many areas, and if disturbance to jukurrpa were sufficient to displace the expedited procedure, then it would not apply to almost all exploration tenure in the vast majority of Australia (at GVP Contentions, paragraph 53(b)).
In its response to the Government party’s contentions, the native title party submits (at NTP Reply, paragraph 3.1) that the statement that jukurrpa are so common that they cannot be regarded as being sites or areas ‘of particular significance’ is not supported by evidence. The native title party contends that such a statement ‘cannot disprove an argument that country crossed by jukurrpa has a particular significance which other parts of the country do not where that argument has been supported by evidence.’ In this respect, the native title party argues that it has provided evidence ‘not merely of the existence of jukurrpa tracks, but also of specific sites left by jukurrpa’ (at NTP Reply, paragraph 3.2). Further, the native title party argues that it does not assert the proposed licence area is of particular significance because of its proximity to important identified sites near to the proposed licence area. Rather, it argues the evidence establishes that there are sites of particular significance within the area of the proposed licence and the proximity and connectedness of those sites to the nearby sites simply serves to reinforce the significance of the area within the proposed licence (NTP reply, paragraph 3.3).
The Tribunal has found in previous determinations that dreaming tracks may be regarded as sites or areas of particular significance. However, whether such a finding is open will depend on the evidence presented in any particular case: Freddie v Western Australia (2007) 213 FLR 247 at [44]-[47]. In the present matter, there is a clear distinction made by the deponents, and Mr Wongawol in particular, between places where the jukurrpa ‘sat down’ and places where ‘they just travelled over.’ In this respect, the evidence presented in this matter mirrors the distinction between areas of general spiritual significance and areas of specific significance identified in WF (deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘Emergent’) at [39]. In the present matter, I am not satisfied on the evidence that the jukurrpa referred to in the affidavit material constitute sites or areas of particular significance, though I accept that there may be places associated with the jukurrpa within that proposed licence that do.
Ngulu sites
The native title party also submits (at NTP Contentions, paragraph 3.24(c)) that there are places in the proposed licence which are ngulu (dangerous, secret). The native title party relies in this respect on the evidence of Mr Wongawol, who states (at paragraph 14) that there are secret, sacred places in the proposed licence where only initiated men can go.
The Government party contends (at GVP Contentions, paragraph 46) that neither the native title party’s contentions nor the affidavit material indicates the location of these sites, though it acknowledges that this is most likely due to the nature of the sites. Nonetheless, the Government party contends (at GVP Contentions, paragraph 46) that general evidence that there are or may be places on or near the proposed licence that are said to be a secret place is not sufficient to establish that it is a site of particular significance.
I accept that there may be ngulu sites in the proposed licence and elsewhere in the claim area and that these sites are significant to the native title party. However, I also accept the Government party’s contention that the evidence presented by the native title party is this matter does not specify the location of these sites or the basis upon which they are said to hold particular significance in accordance with the traditions of the native title party. As the Tribunal has held in previous matters, the native title party must provide evidence with sufficient detail and specificity to enable the Tribunal to perform the predictive assessment required by s 237(a): see for example Cheinmora Resources v Heron Resources (2005) 196 FLR 250 at [43]; Maitland Parker and Others/Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60 at [39]; Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 133 at [39]. If a native title party is concerned that the nature of the relevant evidence is of great sensitivity it is at liberty to request the Tribunal to make confidentiality orders under s 155 of the Act. Such an order was not sought in this matter. Accordingly, I have concluded that there is insufficient evidence to support a finding that the ngulu sites referred to by Mr Wongawol are sites of particular significance to the native title party.
Sites associated with the Seven Sisters
The native title party also contends (at paragraph 3.24(c)) that there are bodies of water within the proposed licence created by the Seven Sisters jukurrpa that are sites or areas of particular significance to the native title party and to women in particular. The native title party relies in this respect on the evidence of Ms Wongawol, who states (at paragraphs 8-9) that ‘all the big creeks’ in Cunyu country, including the proposed licence, were made by the Seven Sisters and are ‘really important’ to female members of the claim group. The native title party also relies on the evidence of Mr Wongawol, who states (at paragraphs 12-16) that the Seven Sisters jukurrpa travels through the proposed licence from Well 10 on the Canning Stock Route, having created the water that flows west to east through the proposed licence.
The Government party contends (at GVP Contentions, paragraph 46) that neither the native title party’s contentions nor the affidavit evidence explains the locations of these water bodies, why they are said to be sites of particular significance, or how the grant of the proposed licence would cause interference with them. I do not accept the Government party’s contention that the native title party has failed to identify the basis on which certain creeks and other bodies of water in the proposed licence are regarded as sites or areas of significance. Ms Wongawol describes the connection between the creeks and other bodies of water in the Cunyu country with the Seven Sisters dreaming and states that those places are considered particularly important by female members of the claim group. Some of these places are within the proposed licence area, though I note that only a small portion of the proposed licence area encroaches on the Cunyu pastoral lease. Ms Wongawol also states (at paragraph 9) that there are places around the water where men cannot enter, which suggests that those places are particularly significant to the women of the claim group. Although Mr Wongawol does not discuss the details of the story for cultural reasons, he also describes the Seven Sisters dreaming as an ‘important ladies’ jukurr’ and outlines its relationship with bodies of water inside the proposed licence.
There is, however, some uncertainty about the precise location of the creeks and other bodies of water associated with the Seven Sisters’ jukurrpa. Ms Wongawol only states that ‘all the big creeks’ in the country south of Lake Nabberu, including the proposed licence, were created by the Seven Sisters, though she does refer to the existence of other water places, including around Six Mile Well. Mr Wongawol states that the water created by the Seven Sisters dreaming comes from the yuparra or western side of the proposed licence to the kakarra or eastern side, but does not provide any further details. As noted above, the Tribunal will be reluctant to find that a site or area is of particular significance to the native title party where the evidence does not sufficiently describe it, including its location. However, where the evidence is otherwise compelling and comprehensive, the Tribunal may find that a site or area is of particular significance notwithstanding the fact that its precise location has not been identified (see Wanjina-Wungurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 at [41]-[43]).
In the present matter, it is clear from the Tribunal’s mapping that there a number of creeks and other bodies of water within the proposed licence and the surrounding area. The evidence establishes that at least some of these bodies of water are associated with the Seven Sisters’ jukurrpa. The evidence also establishes that access to certain places around the creeks and other bodies of water is culturally restricted. The native title party has not indentified any specific location within the proposed licence area which it says is of particular significance although it has identified several specific locations within the vicinity of the area of the proposed licence which are said to be sites of particular significance (see Emergent at [46]). There may well be further more detailed evidence which could have been adduced about specific areas within the proposed licence area, or indeed about the particular significance of the area as a whole, but was not, for various reasons, including cultural and gender sensitivities. Confidentiality orders could have been sought but were not. After fully considering the evidence before the Tribunal I am not in a position to conclude that the evidence establishes that there are any sites of particular significance relating to the Seven Sisters jukurrpa within the area of the proposed licence.
Connection to Lake Nabberu and other sites
The native title party further contends (at NTP Contentions, paragraph 3.25) that the proposed licence is located in an area that is site rich or of particular significance. In this regard, the native title party submits that the proposed licence is connected by a system of rivers and creeks to Lake Nabberu, which is located to the north of the proposed licence and is a site of particular significance due to its association with the Moon jukurr.
The Government party contends (at paragraph 48) that the use of the term ‘site rich’ has no forensic value to the Tribunal in conducting the predictive assessment required in s 237(b) and submits that the existence of relevant sites, and their number and distribution, are questions of facts in each case. In relation to Lake Nabberu in particular, the Government party argues that the native title party’s contention that the area is site rich due to its association with the lake raises the question of ‘how far one must travel before one is in country which is no longer site rich’ (paragraph 49).
In its reply to the Government party’s contentions, the native title party submits (at paragraph 3.3) that its contention is not the mere proximity of Lake Nabberu to the proposed licence that renders the area particularly significant to the persons claiming to hold native title. Rather, the native title party contends that the significance of sites and areas within the proposed licence is reinforced by their proximity to Lake Nabberu and other sites of significance such as Mibbeyean Pool and Mibbeyean Creek, which are connected to the sites and areas within the proposed licence by jukurrpa and geographical features such as creeks and in turn give the area particular significance.
To the extent that the Tribunal has employed the term ‘site rich’ in previous determinations, it should be kept in mind that its use reflects an evidentiary conclusion about the existence of sites or areas of particular significance and the likelihood of interference: Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd [2012] NNTTA 24 at [43]; Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 at [55]. As such, it is not sufficient for a native title party to simply assert that an area is ‘site rich’: Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd [2006] NNTTA 133 at [18]. It may be the case that the distribution of and relationship between significant sites within a given area is such that it may be regarded as an area of particular significance: see for example Les Tullock and Others on behalf of Tarlpa/Western Australia/Allarrow Pty Ltd [2011] NNTTA 118 at [39]. However, that is a matter to be established by evidence. The evidence in the present matter establishes that there are bodies of water, such as creeks, inside the proposed licence area that are connected to Lake Nabberu, which is in turn connected to Mibbeyean Creek. While I accept that these specific sites are interconnected, it is difficult to see how the relationship between them is sufficient to constitute a discrete area of particular significance, especially when the evidence relies for the most part on the significance of Mibbeyean Creek and, more importantly, the lake country to the north. In this respect, the Government party’s contention regarding the boundaries of such an area is germane. At what point would the area cease to be an area of particular significance and begin to be one of general spiritual significance? As the Government party points out, neither the native title party’s contentions nor the affidavit material on which they rely adequately address this question.
However, it may also be the case that, where there is a connection between specific sites, interference with one may cause interference with the other. In this sense, the interference referred to in s 237(b) does not necessary imply direct or physical interference. Unlike s 237(a), which requires the Tribunal to assess the likelihood of interference with physical activities, and any spiritual aspect of interference must be rooted in those activities, s 237(b) requires the Tribunal to assess the likelihood of interference having regard to the nature of the site, the nature of the potential interference and the laws and traditions of the native title party: Silver at [88]. Section 237(b) does not require that any kind of geographical relationship between the future act and the site or area of particular significance. Rather, s 237(b) only requires there to be a likelihood of interference with a site or area of particular significance to persons who are holders are the native title in relation to the land or waters concerned. In this respect, s 237(b) may be enlivened where the future act is likely to cause interference with a site or area of particular significance outside the land or waters concerned (BenWard & Ors on behalf of the Miriuwung-Gajerrong People/Western Australia/CRA Exploration Pty Ltd [1996] NNTTA 9, Deputy President Sumner at [4]).
In his affidavit, Mr Wongawol states (at paragraph 16) that Mibbeyean Spring and Mibbeyean Creek are ‘really important places.’ Ms Wongawol states that the creek is a ‘special place for men’ (paragraph 11). Although it is not specifically stated, it is clear from Mr Wongawol’s evidence that Lake Nabberu is also an important site, particularly given his concerns about its proximity to the proposed licence and its association with the Moon jukurrpa. Mr Wongawol states (at paragraphs 20-21) that, if the water in the proposed licence is interfered with, it will hurt or damage places to the north, including Lake Nabberu. In light of this evidence, Lake Nabberu and Mibbeyean Creek may well be sites of particular significance and that, according to the traditions of the native title party, interference with any associated bodies of water in the proposed licence may result in interference with those sites.
As with the bodies of water associated with the Seven Sisters’ jukurrpa, the native title party’s evidence does not specifically identify the bodies of water that are connected to Lake Nabberu. In this respect, it is difficult to determine which bodies of water are associated with each story. Mr Wongawol’s evidence establishes that there is water within the proposed licence which is connected to the lake country to the north and to Mibbeyean Creek to the south-west of the proposed licence, and his evidence in this respect is uncontested. However, as I have been unable to conclude that the evidence establishes the existence of any sites of particular significance in the proposed licence area the connection of that area through the creeks and waters to Lake Nabberu and Mibbeyean Creek does not establish any basis for a conclusion that the grant of the proposed exploration licence may cause interference with those proximate 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 indicated that it does not seek to pursue its objection in relation to those criteria. The only material before me in relation to these matters is the Government party’s contentions and the evidence submitted in support of those contentions. On that basis, I am satisfied 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 E69/2972 to JML Resources Pty Ltd is an act attracting the expedited procedure.
Daniel O’Dea
Member
1 February 2013
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