Wilfred Goonack & Ors (Uunguu)/Western Australia/Kimberley Bauxite Pty Ltd

Case •

[2010] NNTTA 142

•

2 September 2010

NATIONAL NATIVE TITLE TRIBUNAL

Wilfred Goonack & Ors (Uunguu)/Western Australia/Kimberley Bauxite Pty Ltd, [2010] NNTTA 142 (2 September 2010)

Application No:        WO09/529

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

Wilfred Goonack, Albert Bundamarra, Basil Djanghara, Benedict Chienmora, Cecilia Waina, Dianna Williams, Jack Karadada, John Goonach, Louis Karadada, Ludivina Undulghumen, Margaret Mouda, Placed Undulghumen, Pudja Barunga, Sylvester Mangolamara, and William Bunjack on behalf of Uunguu – (WC99/35)

(native title party)

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The State of Western Australia   (government party)

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Kimberley Bauxite Pty Ltd   (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  John Sosso, Deputy President
Place:  Brisbane
Date:  2 September 2010

Catch words: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – expedited procedure attracted.

Representatives:              

Native title party:       Ms Ania Maszkowski, Kimberley Land Council

Government party:     Mr Greg Abbott, Department of Industry and Resources

Grantee party:           Mr Peter Lewis, Kimberley Bauxite Pty Ltd

Legislation:Aboriginal Affairs Planning Authority Act 1972 (WA) s 31

Aboriginal Affairs Planning Authority Act Regulations 1972 ss 7, 8

Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18

Mining Act 1978 (WA) ss 24, 63

Native Title Act 1993 (Cth) ss 29, 31, 32, 77, 237

Cases:Champion v Western Australia (2005) 190 FLR 362

Cheedy/Western Australia/Cazaly Iron Pty Ltd WO06/529 [2008] NNTTA 39 (4 April 2008) Deputy President Sumner

Cheinmora v Heron Resources Ltd (2005) 196 FLR 250

Cheinmora v Striker Resources NL (1996) 142 ALR 21

Dann v Western Australia (1997) 74 FCR 391

Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295

Freddie/Western Australia/Povey WO99/882 [2001] NNTTA 162 (19 December 2001) Member Stuckey-Clarke

Goonack & Ors/Western Australia/Geotech International Pty Ltd & Anor WO08/1196 [2009] NNTTA 72 (10 July 2009) Member MacPherson

Griffiths/BHP Billiton Pty Ltd/Northern Territory DO01/100 [2002] NNTTA 131 (5 July 2002) Member Sosso

Groves & Ors/Exploration & Resource Development Pty Ltd/ Northern Territory DO01/127-129 [2002] NNTTA 205 (13 September 2002) Member Sosso

Hughes v Western Australia (2003) 182 FLR 362

Kunz v FCT (1996) 41 ALD 533

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576

Little v Western Australia [2001] FCA 1706

Neowarra & Ors/Western Australia/Same WO01/461 [2002] NNTTA 157 (2 August 2002) Deputy President Sumner

Neowarra & Ors; Goonack & Ors/Westerm Australia/Swancove Enterprises Pty Ltd WO06/248 and WO06/250 [2007] NNTTA 11 (31 January 2007) Deputy President Sumner

Rosas v Northern Territory (2002) 169 FLR 330

Ryder & Ors/Western Australia/Brosnan WO09/318–321 [2010] NNTTA 15 (8 February 2010) Deputy President Sumner

Silver v Northern Territory (2002) 169 FLR 1

Smith v Western Australia (2001) 108 FCR 442

Ward v Northern Territory (2002) 169 FLR 303

Ward v Northern Territory (2002) 169 FLR 327

Ward v Western Australia (1996) 136 ALR 557

Walley v Western Australia (2002) 169 FLR 437

Young v Western Australia (2001) 164 FLR 1

REASONS FOR DETERMINATION

Introduction

  1. On 8 April 2009 the State of Western Australia (‘the government party’) gave notice under s.29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E80/3859 (‘the proposed tenement’) to Kimberley Bauxite Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure.

  2. The notice described the proposed tenement as being located 271 kilometres north-westerly of Wyndham in the Shires of Wyndham and East Kimberley and comprising an area of 512.1 square kilometres.

  3. The proposed tenement is situated approximately 20 kilometres north of Kalumburu and is wholly overlapped by the Uunguu native title determination application (WC99/35, registered from 30 June 2000).

  4. On 5 August 2009 an expedited procedure objection application was lodged with the Tribunal pursuant to s.32(3) of the Act by Wilfred Goonack, Albert Bundamarra, Benedict Chienmora and the other persons collectively comprising the Uunguu registered native title claimant (WC99/35) (‘the native title party’). The expedited procedure objection application was lodged with the Tribunal within four months after the s.29(4) notification day (8 August 2009) – s.32(3).

  5. On 21 August 2009 Deputy President Sumner accepted the expedited procedure objection application pursuant to s.77, and on the same day, in accordance with standard practice in Western Australian expedited procedure objection matters, made directions for the parties to provide contentions and evidence. The directions were drafted to allow the parties a period of three months after the s.29 closing date for the lodgement of objections to have the opportunity of reaching an accord and thus resolve the matter by consent.

  6. During a number of preliminary conferences convened between September and October 2009, the parties provided updates on their discussions regarding a draft agreement put to the grantee party by the native title party, and amendments thereto requested by the grantee party.  The Tribunal was informed at status conferences convened on 4 and 18 November 2009 that discussions between the grantee and native title parties had not resulted in a resolution of outstanding issues. On 16 November 2009, in compliance with the Tribunal’s directions, the government party provided to the Tribunal, the grantee and native title parties its statement of contentions and documents relevant to the inquiry.

  7. After a further two status conferences were convened, the Tribunal agreed to amend the directions to allow the grantee and native title parties further time to comply.  Accordingly, on 18 December 2009, compliance dates for the native title and grantee parties were set for 6 April 2010 and 13 April 2010 respectively, to be followed by a listing hearing on 15 April 2010.

  8. The matter was heard by Deputy President Sumner on 19 March 2010 and he was informed that negotiations were delayed due to the wet season and that community benefits was the only outstanding issue between the parties. On the basis that the parties were close to agreement, Deputy President Sumner vacated the directions.

  9. On 22 April 2010, directions were reinstated with compliance dates for the native title and grantee parties set for 5 July 2010 and 12 July 2010 respectively, to be followed by a listing hearing on 15 July 2010.

  10. By 9 June 2010, the parties had not reached a final agreement and understood that the matter would proceed to inquiry. On 12 July 2010, the native title party requested an extension for its compliance with the directions to 16 July 2010. The request was unopposed by the other parties and directions amended to include compliance by the grantee party on 26 July 2010 and the matter scheduled for a listing hearing on 29 July 2010.

  11. The native title and grantee parties complied with the directions and the listing hearing proceeded at which all the parties agreed to the inquiry being conducted on the papers.

  12. On 2 August 2010 Deputy President Sumner, as delegate of the President, appointed me as the Member to constitute the Tribunal for the purpose of this expedited procedure objection inquiry.

Material before the Tribunal

  1. The parties lodged with the Tribunal the following written contentions:

    (a)   Statement of Contentions of the State of Western Australia dated 26 November 2009 (SCWA);

    (b)   Statement of Contentions of the Native Title Party lodged on 16 July 2010 (SCNTP); and

    (c)   Statement of Contentions of the Grantee Party lodged 26 July 2010 (SCGP).

  2. The native title party also lodged with the Tribunal the affidavits of Sylvester Mangolamara affirmed on 3 August 2010 and Dianne Williams affirmed on 3 August 2010.

  3. In addition to the affidavits of Mr Mangolamara and Ms Williams, the native title party has provided an unsigned affidavit for Mr Jack Karadada.  The Tribunal has in the past accepted into evidence unsigned witness statements and affidavits: Freddie/Western Australia/Povey WO99/882 [2001] NNTTA 162 at [24]. The principles adopted by the Tribunal when determining whether to accept into evidence unsigned affidavits and witness statements were outlined in Hughes v Western Australia (2003) 182 FLR 362 at [13] – [18]. As in that determination, a commonsense and fair approach in this matter, having regard to the fact that neither the government or grantee parties have raised objections to the reception of this affidavit into evidence, is to admit it into evidence and give it due weight. This is the standard approach of the Tribunal, a recent example of which is Ryder & Ors/Western Australia/Brosnan WO09/ 318– 21 [2010] NNTTA 15 [15] – [25].

  4. Each of the deponents states that they are a senior person for the Uunguu native title determination application. Further each of the deponents states that they have lived in or around the proposed tenement for all of their lives. In the case of Mr. Karadada that would have been since the 1920s.

  5. There is a distinction to be made in weighing material before the Tribunal from indigenous deponents between statements concerning community and social activities and disturbance to the environment, with those relating to areas and sites of particular significance. In the former case no special authority or status within the claim group is required to be demonstrated. The central issue in such cases is whether the deponent is a member of the claim group, and if so, the relevance of the evidence – Groves & Ors/Exploration & Resource Development Pty Ltd/Northern Territory DO01/127-129 [2002] NNTT 205 at [12]. Each of the deponents has provided cogent material that is of relevance to s.237 (a) and (c).

  6. In comparison a different approach is required when evaluating evidence directed to s.237(b). Reference can be made to the findings of RD Nicholson J in Little v Western Australia [2001] FCA 1706. His Honour considered an affidavit from a Mr. Bynder about the sacred quality of Lake Moore and objections to that affidavit from the grantee party (at [78] – [79]):

    “[78]     ... For the Grantee it is submitted that for three reasons it could not reasonably form the basis of a conclusion by the Tribunal that the grant of the exploration licences would be likely to interfere with areas or sites of particular significance, in accordance with the traditions of the applicants for several reasons. The first is that Mr Bynder fails to establish that he is properly qualified to speak about the applicants’ traditions in relation to areas or sites of significance.  The scope of the evidence is that he is able to narrate a dreaming story.  He does not say that he holds any particular position within the community of the Badimia people or that he has actively maintained contact with this community and its traditions.  Secondly, he asserts that Lake Moore is sacred but does not identify the nature of its sacred quality and what this requires.  It is submitted that without knowing this it would be impossible for the Tribunal to draw any conclusions as to whether exploration activities would be likely to interfere with that sacredness. Thirdly, he does not address whether Lake Moore is of ‘particular’ significance.

    [79]     As to the first point, it is the case that Mr Bynder does not establish his qualifications to speak for the Badimia people so that his evidence has the weight of one Badimia person.   Similarly, as to the third point, I consider a fair reading of the affidavit does arguably show that Lake Moore is of ‘particular’ significance to Mr Bynder but not for the Badimia people generally.  Concerning the second point, I proceed on the assumption that spiritual attachment to land cannot presently be excluded as an element of tradition in relation to an area. However, the evidence of Mr Bynder does not go to the nature of the sacredness so that it is not evidence on which a Tribunal could arguably reach a conclusion about likelihood of a real chance or risk of interference, even more so in the absence of any qualification of witness as a spokesman for the area.”

  7. When applying the principles enunciated by RD Nicholson J, the Tribunal takes into account a number of factors which were set out in Griffiths/BHP Billiton Pty Ltd/Northern Territory DO01/100 [2002] NNTTA 131 at [15]. I adopt that statement of the law for the purposes of this inquiry.

  8. Mr. Sylvester Mangolamara and Mr. Jack Karadada are both listed among the persons who collectively comprise the Applicant.  It is not clear if Ms. Dianne Williams is or is not one of the persons jointly comprising the Applicant. The Register of Native Title Claims lists a Ms “Dianna” Williams as one of the persons comprising the Applicant.

  9. Each of the deponents identifies themself as a member of the claim group, and in each case as a “senior” person within the claim group.

  10. The extract from the Department of Indigenous Affairs Register of Aboriginal Sites (Sites Register) submitted by both the government and native title parties supports the deponent’s assertions that the area of the proposed tenement contains many sites of importance to the traditional owners of that country.

  11. Neither the government nor grantee party has contested the status or qualifications of the deponents to speak on behalf of the areas or sites referred to in their affidavits.

  12. Finally, none of the statements of the deponents about areas or sites has been cast in doubt or otherwise refuted by any other material before the Tribunal.

  13. In these circumstances I find that each of the deponents has the requisite authority to speak on behalf of those areas or sites referred to in their respective affidavits on which they provide primary evidence.

  14. Each of these documents is set out in full below:

AFFIDAVIT OF SYLVESTER MANGOLAMARA

I, Sylvester Mangolamara, a Uunguu Ranger through the Wunambal Gaambera Corporation of Kalumburu in the State of Western Australia, affirm:

1.   My name is Sylvestor Mangolamara. I was born in Kalumburu and have lived there most of my life.

2.   I know the area marked on the map as being part of Wunambal Gaambera country. My father’s name is Jeffrey Mangolamara and I get my connection to this country from him.

3.   I am one of the senior people for the Uunguu Native Title Determination Application (WAD 6033/99).

4.   I know the area where Kimberley Bauxite Pty Ltd, “the grantee party”, have applied for Exploration Licence Number E80/3859, the “Exploration Licence Area”, very well, because the Exploration License Area is on Wunambal Gaambera country, the country I belong to. The map I was shown of the Exploration License Area is attached to this affidavit and marked “A”.

5.   I have been to the Exploration Licence Area for aerial and ground heritage surveys, flora and fauna surveys and for tourism. I’ve been there lots of times. I’ve also spend some weekends there.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

6.   The Exploration License Area is a good place to find bush tucker. When I go there, I eat bush tucker like bush potatoes and bush yams. In some parts, in the high forest vegetation area in the Valley pocket, there is Cycad, which is a round nut. When we find this, we wrap it in a paper bag and put it in the creek for a month. We know when it’s ready to eat, when it’s ripe, because we can hear the dingoes howling at night. You can’t eat it too early because it will make you sick in the stomach.

7.   There is good fishing in that place too. You can catch all kinds of fish, like mackerel, trevally, mangrove jack, snapper, coral trout, and some fish that I’ve never seen anywhere else before. I also like to eat oysters, and periwinkles, mud clams when the tide goes out inside the Exploration License Area.

8.   I’ve seen lots of animals out there too, like the golden bandicoot and northern quoll. You can’t find them animals many places.

INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

9.   There are many important places inside the Exploration License Area which are of great significance. There are many stories that run through the Exploration License Area.

10.    When I go there to the Exploration License Area, I talk to the spirits to see if I can stay there or not. Strangers need permission to go to this area. Even I ask my elders if I can go there.

11.    I go to this place to look after it. It’s important for my people to look after that place, and keep it safe. If we do this, it will keep us strong.

12.    There shouldn’t be any mining in this area, because it’s a special place. We need to look after that area. It’s got rare rainforest in that area. That area is too small for mining anyway.

13.    There are places inside the Exploration license Area that people cannot go to. It is our duty to protect these places.

14.    My father co-authored a paper which talks about the significance of the Exploration License Area. It is called Kimberley Rainforests Australia.

MAJOR DISTURBANCE TO LAND OR WATER

15. I am aware of the activities which the grantee party could do on the Exploration Licence Area under the Mining Act if they are granted the exploration licence.

16.    I know that there is a place there called ‘Dingo Island’. That’s a dangerous place. It’s where there is the dingo dreaming. Bad things can happen to people who go to ‘Dingo Island’, like voodoo stuff. They use mud and grass to make people get sores and dog teeth marks. It’s that dangerous, people can die.

17.    The mining company will get into trouble with the spirits if they mine there. They need to listen to us when we say they shouldn’t mine there.

18.    Strangers must come and see people and ask for permission before coming onto our country because we have got a lot of very special places on my country, from our old-time people and from the early days.

19.    If strangers damage a site, artefact or other dreaming areas we feel very upset you know.

20.    Strangers cannot help themselves to our country. They have got to ask us first. They should really talk to Traditional Owners, so we can understand really what they want to do. If we say No, they must leave our country, but if we say, Yes, they can stay and talk with us.

21.    If they make money out of our country, they can maybe give back to the community because they are taking something from our country our land.

AFFIDAVIT OF DIANNE WILLIAMS

I, Dianne Williams, a pensioner of Kalumburu in the State of Western Australia, affirm:

1.   My name is Dianne Williams. I grew up in Kalumburu and have lived there all of my life.

2.   I know the area marked on the map as being part of Wunambal Gaambera country. My father’s name is Jack Marnga and I get my connection to this country from him.

3.   I am one of the senior people for the Uungu Native Title Determination Application (WAD 6033/99).

4.   I know the area where Kimberley Bauxite Pty Ltd, “the grantee party”, have applied for Exploration Licence Number E80/3859, the “Exploration Licence Area”, very well, because the Exploration License Area is on Wunambal Gaambera country, the country I belong to. This is my father’s country. The map I was shown of the Exploration License Area is attached to this affidavit and marked “A”.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

5.   The exploration licence area falls in Wunambal Gaambera country.

6.   I have been to the Exploration Licence Area. I went there with the old people when I was younger. I remember going there by a canoe when I was just a small kid. My mum and dad would take me there for holidays.

7.    There is a place there known as Seaflower Bay in and around the Exploration License Area, but that is not the proper name for that place. That is the kardiya name (white man’s name). That place is named after my aunty. The proper name is Warligoodangay.  We would go camping there, and fishing. We would catch fish like blue bone, mangrove jack and red emperor.

8.   When we visit the Exploration Licence Area we would gather bush tucker to eat, such as blackberries, bush potatoes, galah and boab nuts. We would also eat turtle, oysters and stingrays. My dad would catch fish with a spear. He would grab hold of the turtle and turn it on its back.

9.   My son goes out to the Exploration License Area regularly for cultural trips.

INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

10.    There are important paintings in the Exploration Licence Area. My kids have been to that place, and they have seen the paintings that are there. It is important that these paintings are not disturbed. They have been there for a very long time now.

11.    I know that there is an island near this area called ‘Dingo Island’. It’s a sacred site, and people should not go there. Bad things can happen to people who go there. It’s not safe.

12.    There are lots of stories in and around the Exploration License Area. The area is very special to us. I can’t say all those stories to you.

MAJOR DISTURBANCE TO LAND OR WATER

13. I am aware of the activities while the grantee party could do on the Exploration Licence Area under the Mining Act if they are granted the exploration licence.

14.    It’s not a good idea to mine at that place. The mining companies will go there and make big holes in the ground like what they done at Mitchell Plateau. I don’t want that to happen at this place. I don’t want the mining companies to damage this place. If they mine there, it will make me and my family upset and angry. My family has a responsibility to protect that place, so we don’t want any mining there.

15.     Strangers, they can’t come onto our country without asking permission. It is against our law. We have special places on this land, places that must not be damaged. Places that have been special for a long time. We been visiting the Exploration License Area for a long time.

16.     If strangers damage a site, artefact or other dreaming areas we feel very upset you know. We feel very sad, like someone close to us has died. It’s like the same thing for country.

17.    Strangers cannot help themselves to our country. This is our country, so they gotta ask us first. Our country, so we know what they can’t do, that’s why we need to know what’s going on.

AFFIDAVIT OF JACK KARADADA

I, JACK Karadada, pensioner of Kalumburu Community in the State of Western Australia, affirm:

1.   My name is Jack Karadada. My Aboriginal name is Wanbunbalii.  I was born in the 1920s.

2.   I am a Wunambal elder, born and raised in my early years in my fathers traditional country called Gibulde to the west of Wargul Wargul Bougainville Peninsula) which is inside the Exploration License Area.

3.   I am one of the senior people for the Uunguu Native Title Determination Application (WAD 6033/99).

4.   I know the area where Kimberley Bauxite Pty Ltd. “the grantee party”, have applied for Exploration Licence Number E89/3859, the “Exploration Licence Area”, very well, because the Exploration License Area, which I know as Wargul Wargul, is a place that has many important sites, and where I have worked and I have visited members of my cultural family.  The map of the Exploration License Area is attached to this affidavit and marked “A”.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

5.   The Exploration Licence Area falls in Uunguu country.

6.   When I was a younger man in my twenties, before World War II started, I worked for a month on a One Arm Point Hunter family lugger, fishing for Beche De Mer around the coast and reefs at Bougainville Peninsula and nearby Long Island which is in and around the Exploration License Area.  This was during the dry season.

7.   In this time before World War II, I also visited Wargul Wargul with my family to visit our cultural relations.  I remember spending time in an area on the sandaun (west) side of Bougainville Peninsula that I knew as Arjuwal.  This area is also called Parry Harbour.  Arjuwal was the traditional country for two brothers I knew as Bungurrananai or Captain and Wayamalani or Jack.  These two brothers, now deceased, were uncles of Dianna Williams.

8.   Traditional Owners still visit in the Exploration License Area to hunt fish, gather bush tucker and for cultural reasons.

9.   There is good hunting and fishing throughout the Exploration Licence Area.  I remember camping at a place called Wayamalani, near Hat Point on the north side in and around the Exploration License Area.  When there Jack took me hunting.  I remember we walked the bush for three days around Yauwuru.  We hunted the walamba and julwun (kangaroo).  I remember we killed a korani – female walamba.  We also hunted for porcupine and bandicoot.

10.    The Exploration Licence Area is also a good place to find bush tucker.  We collected kanmangu yam and marnda yam.

INTERFERENCE WITH STES OF PARTICULAR SIGNIFICANCE

11.    I know the Exploration Licence Area very well.  There are many places in my country, including inside the Exploration Licence Area, which are very important and have great significance to us.

12.    In and around the Exploration Licence Area I have been to a Lalai creation place called Jala.uno.  This Lalai place is where Wanjina left his image in rock painting, you can still see.  I also visited the Wunggurr (snake from the Dreaming) place Badambuli, I estimate to be about 30 kilometres from Jala.uno in the Arjuwal side.

13.    I remember we used to visit and camp at a place called Ungambala inside the Exploration License Area.  This is the place where the black rock of Wargul Wargul finishes and the sandstone starts and is spring water country.  We would this sometimes on the way from my Gibulde home to Kingana.

14.    I visit the Exploration License Area near a place on the western coast of Arjuwal – facing Gibulde country – that is the place of a very important Gulanjii.

MAJOR DISTURBANCE TO LAND OR WATER

15. I am aware of the activities which the grantee party could do on the Exploration Licence Area under the Mining Act if they are granted the exploration licence.

16.    I know in our Wanjina Wunggurr Law that these special places – like the Lalai Wanjiina at Jalalunuu, the Wungurr (snake dreaming) place Badambuli and the dangerous place Gulanjii – must not be disturbed at all.  Disturbing the Gulanjii will bring damaging storms and cyclones to our country.

17.    I have been told that one old man Bunugudua went there to the Gulanjii place.  He died trying to disturb the Gulanjii place and is buried there.

18.    Strangers must come and see people and ask for permission before coming onto our country.  It could be dangerous.  Because we have got a lot of very special places on my country you know.  Very powerful especially inside the Exploration Licence Area.

19.    If strangers damage a site, artefact or other dreaming areas we feel very upset you know.  We feel very sad, like someone close to us has died.  It’s like the same thing for country.

20.   Strangers cannot help themselves to our country.  They have got to ask us first.  We need to understand exactly what they are doing.

  1. The material lodged by the government party indicates that 65.3 per cent (33,425 ha) of the proposed tenement is set aside as a reserve for the use and benefit of Aborigines (Reserve 24705).  A small proportion of the area of the proposed tenement is comprised of rain forest areas.  The area not forming part of the Cape Bougainville Aboriginal Reserve comprises surrounding waters (e.g. Seaflower Bay, Parry Harbour, Vansittart Bay etc).

  2. Material lodged by the government party indicates that the entire area of the proposed tenement is national heritage listed (NHL 016063).  No party either drew this to the attention of the Tribunal or made any submissions on the implications, if any, of such listing.  The same situation arose recently involving the same native title party – Goonack & Ors/Western Australia/Geotech International Pty Ltd & Anor WO08/1196 [2009] NNTT 72 (10 July 2009).  Member MacPherson found (at [44]) that as heritage listing had not been raised it “has but peripheral relevance” in the context of s.237(c) assessment.

  3. It is a fundamental tenet of procedural fairness that an administrative tribunal must not base its decision on a ground not relied upon by the parties or raised either at a hearing, or when, as in this matter, on the papers, in the contentions lodged – see Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 307-310. If the Tribunal intends to base its decision on material not raised in the contentions, it must notify the parties and give them an opportunity to appropriately address the matter – see Kunz v FCT  (1996) 41 ALD 533.

  4. As the Tribunal has no material before it on the implications, if any, of heritage listing, it would be inappropriate for the Tribunal to engage in a unilateral fact finding exercise and then to possibly base its decision on material that the parties had not seen or been given an opportunity to comment on. This is now the second time in twelve months involving the same native title party that the Tribunal has not been presented with contentions on the implications, if any, of heritage listing. It is to be hoped that in the future the native title party, in particular, reconsiders its approach and presents the Tribunal with appropriate contentions. It may be that such listing could have relevance to a s. 237(c) risk assessment, and for that reason it may be helpful that it be appropriately addressed in future inquiries.

  5. The report and plan from the Sites Register indicates that there are 64 recorded sites within the proposed tenement. Of that total some 23 are on the permanent register and 9 have closed access. Some of the sites are recorded as “Man-Made Structure” others as “Artefacts/Scatter, Midden/Scatter” and other again as “Ceremonial, Mythological, Man-Made Structure, Engraving”. The Register does not purport to be a record of all sites of significance in Western Australia, however it provides a useful starting point when undertaking a risk assessment, particularly pursuant to s.237(b).

  6. There are no Aboriginal communities situated on the proposed tenement (SCGP at para 4(a)). Mapping prepared by the Tribunal’s Geospatial Unit locates two Aboriginal communities in the vicinity of the proposed tenement. Marra Garra is located approximately 5 kilometres to the south of the proposed tenement whilst King Anna is located approximately 18 kilometres to the south east of the proposed tenement.  The native title party has not provided any information about these communities.

  7. There are currently 14 “live” mining tenements that overlap the area of the proposed tenement, each was granted to Alcoa of Australia and Mitchell Plateau Bauxite Co Pty Ltd on either 14 or 15 November 1983. These tenements and the extent of the overlap with the proposed tenement are set out below:

    (a)M80/47 – 536.5 ha;

    (b)M80/48 – 747.96 ha;

    (c)M80/49 – 935.84 ha;

    (d)M80/50 – 779.49 ha;

    (e)M80/51 – 1034.58 ha;

    (f)M80/52 – 1026.63 ha;

    (g)M80/53 – 962.89 ha

    (h)M80/54 – 1064.90 ha

    (i)M80/55 – 715.73 ha;

    (j)M80/56 – 365.58 ha;

    (k)M80/57 – 276.49 ha;

    (l)M80/58 – 229.12 ha;

    (m)M80/59 – 131.77 ha;

    (n)M80/60 – 62.03 ha.         

  8. In addition one exploration licence (E80/3042) was granted over a small area (332 ha) of the proposed tenement on 20 March 2003.  This tenement was surrendered on 17 June 2004.  There are no extant mineral exploration licenses granted over the tenement area.

  9. The grant of the proposed tenement will be subject to the standard endorsements and conditions imposed on the grant of exploration licenses in Western Australia.  Such conditions were contained in Schedule “B” to the contentions of the government party.

  10. Reserve 24705 is land to which Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA) applies. Importantly, s.24(7)(a) – (b) of the Mining Act 1978 (WA) provides that (inter alia) exploration on Aboriginal reserves requires the written consent of the Minister for Mines and Petroleum, who in turn, must consult with the Minister for Indigenous Affairs before granting such consent.

  11. The granting of such consent however, does not prevent or in any way affect the operation of s.31 of the Aboriginal Affairs Planning Authority Act 1972 or any person acting under such consent – s.24(7)(c) Mining Act 1978. Section 31 prohibits the entry of non-Aboriginal persons onto reserve land, except those persons enumerated in that section or those persons authorised pursuant to sections 7 and 8 of the Aboriginal Affairs Planning Authority Act Regulations 1972. Section 8 allows the Minister for Indigenous Affairs to grant permission for a non-Aboriginal person to enter or remain within the boundaries of a reserve. In its contentions the government party stated (SCWA para 4(d) – (h)):

    “(d) in practice the Minister for Indigenous Affairs requires that the grantee party negotiate with the relevant Aboriginal community in respect of access to the land for exploration activities;

    (e)     the agreement referred to in (d) forms the basis for the formulation of the conditions to be attached to the authorisation of the Minister for(f) (sic) Indigenous Affairs, to the grantee party, for access to the land for exploration activities;

    (g)in practice, the authorisation of the Minister for Indigenous Affairs includes conditions relating to the protection of, and prevention of interference with, the community life of the relevant Aboriginal community.”

Legal principles

  1. The key statutory provision in any expedited procedure application is section 237 of the Act which provides:

“237     Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)    the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.”

  1. In Walley v Western Australia (2002) 169 FLR 437 (‘Walley’), Deputy President Sumner considered, in the context of Western Australia, the applicable legal principles governing expedited procedure objection inquiries (at 439-449). I adopt those findings for the purpose of this inquiry while noting that the Mining Act 1978 (WA) has since been amended and the Standard Conditions that are usually imposed on exploration licences have been strengthened. Standard Condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than 6 months after excavation unless otherwise approved by the Environmental Officer of the Department of Industry and Resources. Standard Condition 4 now has to be read with s.63(aa) of the Mining Act 1978 (WA) which now deems that an exploration licence will be granted subject to the tenement holder not using:

    “… ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless –

    (i)the holder has lodged in the prescribed manner a programme of work in respect of that use; and

    (ii)the program of work has been approved in writing by the Minister or the prescribed official.”

The Work Program must contain information from the Register of Aboriginal Sites, advise whether the proposal intersects the boundary of any registered sites, involve consultation with the Department of Aboriginal Affairs and obtain advice from the Department that the proposed activities are acceptable – Cheedy/Western Australia/Cazaly Iron Pty Ltd [2008] NNTTA 39 at [22]. In conclusion I find that there exists in Western Australia an integrated regulatory regime which aims to minimise the likelihood of exploration activities unnecessarily impacting on the livelihood and lifestyle of third parties, including Indigenous persons claiming native title rights and interests. In recognising the existence of such a regulatory regime, it also needs to be emphasised that whilst this regime reduces the likelihood of interference or disturbance as provided in section 237 it does not absolve the Tribunal from undertaking its task of making a predictive risk assessment. The regulatory regime is an important factor in assessing risk but it does not automatically negate the risk or chance of interference or disturbance. In any inquiry the Tribunal is required to carefully weigh up all the material produced prior to reaching a conclusion on the likelihood of interference or disturbance.

Community or social activities (s 237(a))

  1. Paragraph 237(a) requires the Tribunal to assess whether a proposed future act is likely to interfere directly with the carrying on of the community or social activities of native title holders in relation to the relevant land or waters. The leading case on the interpretation of the paragraph is Smith v Western Australia (2001) 108 FCR 442. French J dealt firstly with the requirement that the Tribunal assess whether a proposed future act was likely to directly interfere with the carrying on of community or social activities. His Honour said (450/[23]):

    “The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in paras (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term ‘likely’ in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance…. Consistently with the objects of the Act, the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.”

  2. French J also dealt with the concept of direct interference. His Honour first pointed out that the Tribunal was required, in carrying out its predictive risk assessment, to make an evaluative judgement (451/[26]):

    “The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference is to some degree evaluative. It must be substantial in its impact upon community or social activities.  That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section.”

French J then explained that the evaluation is contextual and as such, the risk assessment must not be undertaken in isolation. His Honour said (451/[27]):

“In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial…. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act.”

  1. This interpretation of section 237 was endorsed by the Full Federal Court in Little v Oriole Resources Pty Ltd (2005) 146 FCR 576 at 588.

  2. The native title party in its Statement of Contentions summarised the evidence of the deponents on community or social activities as follows (SCNTP at para 13):

    “a) Members of the Native Title Party belong to the country within the tenement area.

    b) Members of the Native Title Party live and camp and conduct their community within the tenement area.

    c)   Members of the Native Title Party access the tenement area for cultural purposes.

    d)   Members of the Native Title Party hunt and fish within the tenement area.

    e)   Members of the Native Title Party visit country and collect traditional foods and products in the tenement area.

    f)    Members of the Native Title Party look after Aboriginal paintings, burial places and sites of importance and significance within the tenement area.

    g)   Members of the Native Title Party have ancestors and family who are buried close to the tenement area.

  3. The native title party then contended (SCNTP para 14) that the mere existence of the grantee party on the proposed tenement, in circumstances where there has been no negotiation or consultation with the native title party, could give rise to direct interference with the carrying on of community or social activities of the native title party, notwithstanding the absence of any direct physical interference.  In support of this proposition the native title party quoted from Ward v Western Australia (1996) 136 ALR 557 where Carr J held that the mere thought of intensive exploration activities without any physical interference could interfere with “community life”.

  4. The wording of s.237(a) has changed since it was considered by Carr J in Ward v Western Australia. Prior to the 1998 amendments this paragraph referred to “community life” whereas now it refers to “community and social activities.” The implications of the change of wording were considered in depth by the Tribunal in Silver v Northern Territory (2002) 169 FLR 1. The Tribunal made the following findings (24/[56]):

    “The first matter that is clear is that par (a) is now focused on community or social activities. The paragraph is no longer centred on an examination of community life but rather the external manifestation of that life in the form of activities. The Macquarie Dictionary defines the noun activity as follows:

    ‘1. The state of action; doing. 2. The quality of acting promptly; energy. 3. A specific deed or action; sphere of action; social activities.

    It is clear that some activities have a spiritual dimension, and that the doing of a future act could interfere directly with those activities. However, if it was to be contended that par (a) was at issue there would have to be material before the Tribunal that the future act would be likely to have a direct physical interference with activities which in turn would impact on the spiritual dimension of those activities.”

  5. This approach was also adopted by Deputy President Sumner in Walley (at447/[14]). In addition similar contentions to those made by the native title party have been considered and rejected by the Tribunal in a number of more recent determinations – Neowarra & Ors; Goonack & Ors/Westerm Australia/Swancove Enterprises Pty Ltd WO06/248 and WO06/250 [2007] NNTTA 11 at [22] and Goonack & Ors/Geotech International Pty Ltd & Anor WO08/1196 [2009] NNTTA 72 at [30].

  6. It follows that the suggested interpretation of s.237(a) by the native title party is inconsistent with both the wording of the paragraph and Tribunal authority. The Tribunal will focus on the likelihood of direct interference with community and social activities by physical interference with such activities by the doing of the future act.  The Tribunal will take into account the spiritual component of any likely interference, but this must flow from the likelihood of physical interference, and not, as suggested by the native title party, where there is a total absence of any direct physical interference.

  7. The evidence before the Tribunal is that the majority of the proposed tenement area is Aboriginal Reserve land with much of the rest comprised of rainforest areas. The uncontested evidence of the deponents, is that this area is regularly accessed by members of the claim group. However, in the case of both Ms. Williams and Mr. Karadada, the evidence provided is mostly historical and both persons provide little information about current community and social activities on the proposed tenement.

  8. Ms. Williams deposes to having visited the area as a small child with “old people” and on holidays with her mother and father (para 6). All the activities she deposes to are in the past tense. For example she deposes (para 7): “We would go camping there, and fishing. We would catch fish like blue bone, mangrove jack and red emperor.”  Elsewhere she deposes to what her father did (para 8): “My dad would catch fish with a spear. He would grab hold of the turtle and turn it on its back.” In fact the only current community and social activities she deposes to are regular visits to the proposed tenement area by her son (para 9).

  9. Summing up, Ms. Williams does not depose to any current community or social activities she engages in. Her direct evidence about such activities is historical, with references to her visiting the subject area as a child. There is no suggestion that she continues to visit the subject area, or that she has done so for some time. The only reference to current activities is that of her son who, she suggests, visits the area regularly for cultural trips. No information is provided about the number of times he visits the subject area each year, the duration of those visits, who accompanies him or the nature of the “cultural visits”. In itself this brief and quite vague reference provides little assistance to the Tribunal when undertaking a s.237(a) assessment.

  10. Mr. Mangolamara’s evidence is of more assistance. He deposes (paras 5 and 6) to regularly visiting the subject area (“I’ve been there lots of times. I’ve also spend some weekends there.”) and collecting bush tucker (bush potatoes and yams and cycad).  In addition he deposes (para 7) to fishing and also taking oysters, periwinkles and mud clams. I infer from reading his affidavit, that he regularly visits the subject area for hunting, fishing, collecting bush food and engaging in cultural and spiritual activities.

  11. Mr Karadada also deposes to community and social activities that are more historical than current. He deposed (para 6) to working in the subject area prior to World War 2 (1939 – 1945) and (para 7) visiting places on and near the proposed tenement including Wargul Wargul and Arjuwal (the western side of Bouganville Peninsular). All of the hunting, fishing and collecting bush food activities Mr. Karada deposes to have engaged in (paras 9 and 10) were in the past.

  12. All of the current community and social activities Mr Karadada deposes to (at para 8), are by other traditional owners. As with Ms Williams, he provides no details of who is engaging in those activities or the frequency and duration of visits to the area of the proposed tenement.

  13. Consequently, the Tribunal has very little direct evidence before it about current community and social activities on the proposed tenement.

  14. In addition, the subject area has been the subject of numerous exploration and mining tenements.  There are 14 “live” mining tenements that overlap parts of the proposed tenement.  As previously set out, the extent of these overlaps is not inconsequential.  The grantee party contended (SCGP at para 2):

    “The area encompassed by the boundary of E80/3859 has been the subject of a  prior extensive exploration programme conducted by American Metals Climax Ltd (AMAX). The bauxite duricrust plateau within the tenement boundary (featured on the following image) has been the subject of 1,050 drill holes.  These holes were drilled on a 250 m square grid using two types of drills: a crawler-mounted percussion drill (6.4 cm diameter) to drill the very hard bauxite, and a 10 cm diameter Edson vacuum drill for the less hard material.”

  15. There is no evidence before the Tribunal that any of the previous exploration or mining activity on the proposed tenement has had any deleterious impact on the community and social activities of the native title party.

  16. Also, as previously noted, the grant of the proposed tenement would be subject to the operation of s.31 of the Aboriginal Affairs Planning Authority Act 1972 and the regulations made pursuant to it.  I note that it is the policy of the relevant Minister not to allow a grantee party to enter on to reserve land without an agreement first being entered into with the relevant Aboriginal community. I also note that the Minister requires conditions relating to the protection of, and prevention of interference with, the community life of the traditional owners.

  17. In conclusion the evidence before the Tribunal does not support a finding that the community or social activities of the native title party are likely to be directly interfered with by the grant of the proposed tenement.  The evidence of community and social activities is relatively scant and the statutory regime in place renders it unlikely that the grant of the tenement would directly interfere with any of the social and community activities outlined in the three affidavits referred to previously.  Despite this area being the subject of numerous tenement grants over the years no evidence has been submitted that any previous grantee party when exercising their rights have deleteriously impacted on the community or social activities of the native title party. The evidence before the Tribunal is that even if there was a likelihood of any intersection between the proposed exploration activities on the proposed tenement and the community or social activities of the native title party, it is likely to be an insignificant one. In the event that there was any interference it is likely to be insubstantial in nature, short in nature and of limited geographic application.

Areas or sites of particular significance (s.237(b))

  1. The government party outlined (SCWA at paras 17- 20) a number of legal principles which govern the application of s.237(b), namely:

    (a)   the interference with sites of significance must involve physical interference;

    (b) evidence sufficient to raise the question of a ‘real chance’ of interference is not bound in broad assertions about the existence of sites. The Tribunal must be satisfied that there are in fact sites of particular significance;

    (c) the circumstance of site recording or registration, while of potential importance, is not of itself proof that an area or site of particular significance pursuant to s.237(b); and

    (d) the Tribunal is bound by the decision of Nicholson J in Little v Western Australia [2001] FCA 1706 that, given the protective effect of the sections of the Aboriginal Heritage Act 1972, the chance of interference is remote.

For the purposes of this inquiry, I accept that the above statements accurately reflect the legal principles that govern the Tribunal when making an assessment pursuant to s.237(b).

  1. Although the Tribunal is bound by the decision of Nicholson J in Little v Western Australia and, in particular, His Honour’s findings on the protective effect of the Aboriginal Heritage Act 1972, this does not result in an inevitable finding in each matter that the grant of a tenement will always be unlikely to result in interference to areas or sites of particular significance to native title holders. The approach of the Tribunal is that while it will give due weight to the Aboriginal heritage protective regime in force in Western Australia, this does not absolve the Tribunal from carefully considering the evidence presented and undertaking an evaluative weighing exercise pursuant to s.237(b). Each matter presents the Tribunal with different circumstances. The nature of the evidence presented by the native title party, the number and nature of sites recorded on the Sites Register, the type of exploration activities proposed by the grantee party and the history of compliance by the grantee party with the Aboriginal heritage protective regime are all matters that need to be factored into the evaluative weighing exercise. So while the protection afforded by the operation of the Aboriginal Heritage Act 1972 significantly minimises the likelihood of interference with areas and sites of particular significance it does not follow that this regime provides unqualified and absolute protection such that the Tribunal is absolved from properly considering and evaluating the material presented in each inquiry.

  2. In addition, the starting point of any assessment pursuant to this paragraph is on identifying from the evidence before the Tribunal, if there are in fact any areas or sites of “particular significance”.  This was explained by Carr J in Cheinmora v Striker Resources NL (1996) 142 ALR 21 at 34 as follows: “a relevant site is one which is of special or more than ordinary significance to native title holders. It is not enough that the site simply be of significance to native title holders.”

  3. The native title party contends (SCNTP at para 18) that the area of the proposed tenement is “site rich” and accordingly, it is incumbent on the grantee party to lead some evidence to provide a basis upon which the Tribunal might be assured that interference, intentional or otherwise, is not likely.

  4. Various Tribunal Members have, for more than a decade, referred to areas where, because of the sheer number of sites recorded on government databases, or referenced by direct evidence, it is clear from an empirical sense that they are “site rich”. This concept was first explained in detail by the Tribunal in Ward v Northern Territory (2002) 169 FLR 303 as follows (327/[82]):

    “The evidence before the Tribunal establishes that this locality is ‘site rich’. The term ‘site rich’ is simply a shorthand description of an area of land and water where the number and nature of sites is such that the Tribunal is put on notice that, even applying the presumption of regularity, there is often a real chance or risk that the act in question will interfere with the spiritual fabric of the locality. In short a site rich area can be understood not only as a area where the number of sites is large, but also where that the number of sites is itself sometimes a manifestation of the overall spiritual importance of the land and waters in the relevant locality. This in turn is a matter that can be of relevance when making an assessment of the likelihood of interference pursuant to s 237(b) in a number of respects. In each case, of course, the Tribunal must be guided by the nature of the evidence before it and it is not possible or sensible to make any broad and sweeping generalisations about the implications of finding that an area is site rich.”

  5. As the above quotation highlights, the term “site rich” is simply a shorthand description of an area of land and waters which has particular spiritual significance to the relevant traditional owners, and which particular significance is manifested by the sheer number and nature of sites.  In this matter, the first issue is to ascertain whether the area of the proposed tenement, or parts of the proposed tenement, can be categorised as “site rich”. If the conclusion reached is that all or part of the proposed tenement is in fact site rich, the next question is whether the evidence before the Tribunal and the operation of the regulatory regime in Western Australia, leads to a conclusion whether the doing of the act is likely to result in interference with areas or sites of particular significance.

  6. The Tribunal was presented with the evidence of the three deponents that the tenement area contains many sites of importance. Mr. Mangolamara deposed (at para 9) that there “are many stories that run through the Exploration Licence Area.”  Ms Williams deposed (at para 12) that “there are lots of stories in and around the Exploration Licence Area.  The area is very special to us.” Finally Mr Karadada deposed (at para 11) that there “are many places in my country, including inside the Exploration Licence Area which are very important and have great significance to us.”

  7. Mr. Mangolamara deposed (at para 16) to the special importance of Dingo Island, but more generally referred (at para 13) to places within the proposed tenement to which people could not go.  Ms. Williams deposes (at para 10) to important paintings in the tenement area as well as the sacredness of Dingo Island (para 11). Mr Karadada deposes (at para 50) to a Lalai creation placed called Jala.uno, where there is a rock painting of Wanjina. He also refers to a snake dreaming place called Badambuli which he estimates is 30 km from Jala.uno. Mr. Karadada also deposes (at para 13) to the importance of a place named Ungambala.   In the context of major disturbance to land and waters in his affidavit he deposes (at paras 16 and 18):

    “16. I know in our Wanjina Wunggurr Law that these special places – like Lalai Wanjina at Jalaalunuu, the Wungurr (snake dreaming) place Badambuli and the dangerous place Gulanjii – must not be disturbed at all. Disturbing the Gulanjii will bring damaging storms and cyclones to our country.

    18. Strangers must come and see people and ask for permission before coming onto our country. It could be dangerous. Because we have got a lot of very special places on my country you know.  Very powerful especially inside the Exploration Licence Area.”

  8. The uncontested evidence of the deponents is that the mainland area of the proposed tenement not only contains sites of particular significance to the native title party, but that the whole area is infused with sacredness.  It is the case that the direct evidence before the Tribunal is not extensive, however that evidence must be evaluated in the context of the number and nature of sites on the Sites Register.  The Sites Register records 64 sites. Some of the sites on the permanent register are mythological paintings:

    (a)   Site 14787 – Burrgu, Encounter Cove;

    (b) Site 14793 – Vansittart Bay 1-3;

    (c)   Site 14794 – Chalangdal, Vansittart Bay; and

    (d) Site 14802 – Karen, Admiralty Gulf.

All of these sites other than 14787 are closed access.

  1. The Tribunal is rarely presented with such a large number of registered sites that fall within the area of a proposed tenement.  In the past the Tribunal has found that the Sites Register does not represent all of the sites of importance to traditional owners within a given locality. However, in this matter the sheer number and nature of sites that have been recorded puts the Tribunal on notice that this is an area that is replete with areas and sites of importance and sacredness to traditional owners.

  2. The combination of the evidence of the deponents with the areas and sites recorded on the Sites Register makes it clear that the landward portion of the proposed tenement area is “site rich”. I find that all of the area of the mainland portion of the proposed tenement comprising Aboriginal Reserve land is infused with special sacredness and is of particular significance to members of the native title party in accordance with their traditions.

  3. Having made this finding, the next question which must be addressed is whether the operation of the regulatory protective regime will render it unlikely that there would be interference with this area of particular significance.

  4. As the native title party contended (SCNTP at para 23), the criteria for the activation of the offence provisions of the Aboriginal Heritage Act 1972, in particular section 17, are different from the test of interference under s.237(b). The differences between the two statutes was explained in Young v Western Australia (2001) 164FLR 1 at 10-15/[44] –[58].

[72]   The government party contended (SCWA at para 21) that since Little v Western Australia penalties for breaches of the Aboriginal Heritage Act 1972 have been substantially increased and this, in conjunction with the revised Guidelines for Consultation with Indigenous People by Mineral Explorers prepared by the Department of Industry and Resources and sent to all mineral explorers, has enhanced the effectiveness of the government party’s regulatory regime. In support of this proposition reference was made to the findings of Deputy President Sumner in Champion v Western Australia (2005) 190 FLR 362 at 386-386/[71]. For the purposes of this inquiry I accept this is a correct statement of the law.

  1. The government party also (SCWA at paras 23 – 25) made various contentions about the approach the Tribunal should take to the grantee party’s position in relation to heritage protection. For the purposes of this inquiry I have proceeded on the assumption that the presumption of regularity should apply. Further, I agree that it is appropriate and relevant to factor into a s.237(b) evaluation any statements of a grantee party as to how they will conduct their proposed exploration activities.

  2. In this regard the grantee party made the following helpful submission (SCGP at paras 6 – 9):

    “6. Kimberley Bauxite Pty Ltd intends to re-assess the bauxitic duricrust plateaus, proximal to, but external to the Mining Lease boundaries. The areas of interest are defined in brown colour on the following diagram.

    7. Kimberley Bauxite submits that the areas of interest defined on the above map are external to the specific sites defined within the Affidavits submitted by the Native Title Party.

    8. Access to the area will be confined to prior exploration tracks and will be effected in the main part via helicopter from the nearby commercial Airport positioned some 30 kilometres east of the centre of the tenement.

    9. Kimberley Bauxite Pty Ltd will provide detailed proposed exploration programmes and extend every effort to comply with the requests of Traditional Owners when conducting exploration activities.”

  3. It is clear from these contentions that the grantee party intends to carry out is proposed exploration activities in a responsible and culturally sensitive way.  The grantee party, I find, would be likely to conduct any exploration in a manner intended to minimise the risk of interference to areas or sites of particular significance.

[76]   As previously noted, some 65.3 per cent of the proposed tenement falls within Cape Bougainville Aboriginal Reserve.  The Aboriginal Affairs Planning Authority Act 1972 applies to that part of the proposed tenement, and the written consent of the Minister for Indigenous Affairs is required pursuant to s.31 before non-Aboriginal people can enter onto reserve land.  As the government party contended (SCWA at para 4(d)), before a grantee party is granted authorisation to enter onto reserve land, that party must first have negotiated with the relevant Aboriginal community in respect of access to the land for exploration activities. This deals with the concerns of the deponents, namely that strangers must seek permission before entering onto country. In such circumstances there is not a real risk or chance of interference, as the requirement of consultation between the grantee party and the native title party together with the added protection of Ministerial consent ensures that the concerns of the native title party can be comprehensively addressed. The material before the Tribunal satisfies me that on that part of the proposed tenement, the operation of the regulatory protective regime would render it unlikely that there would be interference within the meaning of s.237(b).

  1. It should be noted that a similar approach was adopted by Deputy President Sumner in Neowarra & Ors/Western Australia/Same WO01/461 [2002] NNTTA 157. In that matter the land and waters in question were comprised of various tenures, including Aboriginal Reserve lands. After discussing the various protective provisions of the Aboriginal Affairs Planning Authority Act 1972 Deputy President Sumner said:

    “[14] Had the whole of the exploration licence area been Aboriginal Reserve land I would have found that the expedited procedure was attracted. However, the tenegraph map, provided by the Government party, only shows the Reserve to cover a relatively small part of the exploration licence area. None of the registered sites under the Aboriginal Heritage Act appear to be located within it. The evidence of Ms Nulgit and Mr Wilson suggests that there are sites near the Kupungarri Aboriginal community but it is impossible on the evidence to accurately locate them on the Reserve. For these reasons I find the protective regime for Aboriginal Reserves to be little significance in this case.”

See also Cheinmora v Heron Resources Ltd (2005) 196 FLR 250 at 259-261/[21] – [24] per Member O’Dea.

  1. The remaining part of the proposed tenement comprises surrounding waters. No evidence was presented that there are any sites of particular significance in these waters. None of the registered sites are located in these waters and none of the deponents’ evidence on areas and sites of particular significance focused on these waters. Further the grantee party’s contentions contained a map outlining the areas of proposed interest for exploration purposes. All of the marked areas are on the Reserve, and none of the proposed exploration activity will occur in the non-mainland portion of the proposed tenement. In these circumstances, there is no material before the Tribunal that would allow a finding that the water portion of the proposed tenement contain any areas or sites of particular significance. However, even if that finding is incorrect, and this area of the proposed tenement is also infused with sacredness such that it is also of particular significance, then there is no evidence before the Tribunal that the grantee party intends to explore in this area. Consequently the grant of the proposed tenement would not be likely to result in interference to any areas or sites of particular significance in the waters of the proposed tenement within the meaning of s.237(b).

Major disturbance to land and waters (s 237(c))

  1. This paragraph focuses attention on the likelihood of major disturbance to land and waters by the grant of the proposed future act.  The concept of “major disturbance” was considered by the Full Federal Court in Dann v Western Australia (1997) 74 FCR 391. Wilcox J made the following observations (at 395):

    “In determining whether a given envisaged disturbance to land or waters amounts to a major disturbance, the Tribunal must make a value judgment...in doing this,  the Tribunal must give the term ‘major disturbance’ its ordinary English meaning.  It must consider the matter of degree from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important.  The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is no consequence to people who live far away.  And,  of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in  or use the affected area, that might be sufficient to warrant a finding that it will constitute a ‘major disturbance’ even if it would be unimportant to non-Aboriginals.”

  2. The native title party contended (SCNTP at para 36) that the grant of the proposed tenement will create rights whose exercise is likely to involve a major disturbance.  The native title party then set out (at para 37) the rights that flow from the grant of an exploration licence under the Mining Act 1978 (WA).

  3. The native title party is correct to draw to the Tribunal’s attention what rights an explorer will be given by the grant of a tenement. In the absence of any evidence from a grantee party on its intentions, the Tribunal will proceed on the assumption that a grantee party may fully exercise its legal entitlements, and make an evaluative risk assessment on that basis. However, this approach is legally flawed if the Tribunal has before it evidence of a grantee party’s intentions, which intentions do not involve the full exercise of legal rights.  The correct approach was outlined by the Full Federal Court in Little v Oriole Resources Pty Ltd (2005) 146 FCR 576. In that matter the Tribunal approached s. 237(c) on the assumption that it was required to assess whether the full exercise of rights conferred by the grant of the tenement would be likely to amount to major disturbance. The Full Court rejected this approach and held (588-589/[51]):

    “the Tribunal did not undertake the exercise required by s 237(c) but proceeded to assess the likelihood of ‘major disturbance’ by reference to what could have been done under the licence rather than what was likely to be done. What the preceding analysis of the Tribunal’s reasons discloses is that the Tribunal embarked upon its task upon an assumption, unduly favourable to the claimants, based upon a misconstruction of s 237(c).”

  4. In advancing its case the native title party made the following contentions (SCNTP at paras 38 – 39 and a. – b.):

    “38. There are within the tenement area sites which are so significant to the local Aboriginal community that, in accordance with traditional law and culture, unauthorized persons may not be present at them. This places a burden on local Aboriginal people to look after strangers in their country.  The grant of the tenement in these circumstances will cause a major disturbance.

    39. There are within the Tenement area sites which are so significant to the local Aboriginal community that, in accordance with traditional law and culture, unauthorized persons may not be present at them.  This places a burden on local Aboriginal people to look after strangers in their country.  The grant of the Tenement in these circumstances will cause a major disturbance.

    a. Under Wanjina Wunggurr Law, anyone who is not from the country included in the tenement area must ask permission before coming onto country, because of the many places of significance per paragraphs 18 and 20 of the affidavit of Jack Karadada; paragraphs 15 and 17 of the affidavit of Dianne Williams and paragraphs 10, 18 and 20 of the affidavit of Sylvester Mangolamara.

    b. Uunguu people are worried about strangers coming onto country without following Wanjina Wunggurr law and custom and causing problems per paragraphs 16, 17 and 18 of the affidavit of Jack Karadada; paragraphs 14, 15 and 16 of the affidavit of Dianne Williams and paragraphs 16, 17 and 19 of the affidavit of Sylvester Mangolamara.”

  5. It will be noted that the thrust of the native title party’s contentions is the concept of “disturbance” as viewed through the prism of the native title party’s traditional laws and customs. Accordingly, the focus of the native title party’s contentions is that the unauthorised entry onto country would constitute a “major disturbance” within the meaning of s.237(c). There is, even if one accepts that such contentions have a firm legal basis, a satisfactory response from the viewpoint of both the grantee and government parties. That response is that the operation of the Aboriginal Affairs Planning Authority Act 1972 ensures that the entry of non-Aboriginal persons onto Reserve land and the non-interference with sites of particular significance will form the basis of the required Ministerial consent.  In these circumstances, and applying the test expounded by the Full Federal Court in Little v Oriole Resources, it is unlikely that there would be “major disturbance” within the meaning of s.237(c).

  6. However, the native title party’s contentions are legally incorrect. The starting point in conducting a risk assessment pursuant to s.237(c) was outlined by the Tribunal in Rosas v Northern Territory (2002) 169 FLR 358 as follows (at 359/[84]): “the starting point and pre-condition of any inquiry into major disturbance is evidence of proposed physical disturbance of land and waters.  However, when assessing the likelihood of whether the physical disturbance will be major, it is open and appropriate for the Tribunal to consider how the physical disturbance will impact on the customs, traditions etc of the native title claim group.” It follows from this that the mere entry onto the proposed tenement by an explorer would not constitute “major disturbance” within the meaning of s.237(c) as such activity would be unlikely to result in physical disturbance to the relevant land and waters. Although the cultural concerns of the native title party are relevant and need to be factored into a s.237(c) risk assessment, they do not constitute the starting point or frame of reference of such an assessment.

  7. As previously noted, the grantee party has provided the Tribunal with material on how it intends to carry out exploration should the proposed tenement be granted. Access to the subject area will be confined to prior exploration tracks and will be carried out in the main part by a helicopter from the nearby Mungalalu Truscott Airport.  Further, the grantee party also stated it will provide detailed proposed exploration programs to the native title party and comply with the requests of the native title party.

  8. The evidence of the grantee party then, is that it will use its best endeavours to minimise the impact of exploration on the land and waters of the proposed tenement and to consult in advance with the native title party.

  9. A further issue that must be taken into account when undertaking a s.237(c) risk assessment is the nature of the land and waters the subject of the proposed tenement. If there is evidence before the Tribunal that the subject area is ecologically sensitive such that exploration activities are likely to have a major impact on the environment, then the Tribunal would take that matter into account when evaluating if the proposed exploration activities would be likely to result in “major disturbance”. In this matter there is relatively little material on the state of the land and waters that comprise the proposed tenement. Clearly some small proportion of the proposed tenement is rainforest, and the mainland portion forms part of an Aboriginal Reserve. For the purpose of this inquiry I have proceeded on the assumption that the mainland portion of the proposed tenement comprises land and waters that are relatively undisturbed, but there is no material indicating any particular ecological fragility such that standard exploration activities carried out lawfully within the Western Australian regulatory regime would be likely to result in major disturbance.

  10. The proposed tenement has also been the subject of previous exploration and mining activity. The only evidence before the Tribunal on the impact of  prior exploration and mining activity is the statement of Dianne Williams (at para 14) that “mining companies will go there and make big holes in the ground like what they done at Mitchell Plateau.”  This does not greatly assist the Tribunal as it is not clear if she is referring to exploration or mining activity, and even if it was exploration activity on the proposed tenement, the number of drill holes, their size and the impact they had on the local environment is not particularised. In short, there is no evidence that previous exploration activity on the proposed tenement has resulted in major disturbance to the subject land and waters.

  11. The material before the Tribunal leads to the conclusion that the grant of the proposed tenement is not likely to result in 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.

Determination

  1. The determination of the Tribunal is that the grant of exploration licence E80/3859 to Kimberley  Bauxite Pty Ltd is an act which attracts the expedited procedure under the Native Title Act 1993 (Cth).

John Sosso
Deputy President

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