Wilfred Hicks on behalf of the Wong-goo-tt-oo Native Title Claim Group and Bruce Monadee and Others on behalf of the Ngarluma Indjibarndi People/Western Australia/Blackjack Resources Pty Ltd
[2002] NNTTA 227
•4 November 2002
NATIONAL NATIVE TITLE TRIBUNAL
Wilfred Hicks on behalf of the Wong-goo-tt-oo Native Title Claim Group and Bruce Monadee and Others on behalf of the Ngarluma Indjibarndi People/Western Australia/Blackjack Resources Pty Ltd, [2002] NNTTA 227 (4 November 2002)
Application No.: WO01/233 (E47/1027) and WO01/234 (E47/1027)
IN THE MATTER of the Native Title Act 1993 (Cth)
and
IN THE MATTER of an inquiry into an expedited procedure objection application
Wilfred Hicks on behalf of the Wong-goo-tt-oo Native Title Claim Group
and
Bruce Monadee and Others on behalf of the Ngarluma Indjibarndi People (the Native Title Parties)
and
The State of Western Australia (Government Party)
and
Blackjack Resources Pty Ltd (Grantee Party)
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal:Deputy President The Hon EM Franklyn QC
Place:Perth
Date:4 November 2002
Catchwords: Native Title – Future Act – proposed grant of exploration licence – expedited procedure – objections lodged by each of two native title claim groups – evidence inadequate to support objection of one claim group – evidence produced by other establishes the likelihood of direct interference in terms of s237(a) – determination that proposed grant does not attract the expedited procedure
Legislation:Native Title Act 1993
Aboriginal Heritage Act 1972
Mining Act 1978
Cases:Dann v Western Australia (1997) 74 FCR 391
REASONS FOR FUTURE ACT DETERMINATION WO01/233 & WO01/234
Background
[1] On 12 April 2001, the State of Western Australia (“The State”) issued a notice under section 29 of the Native Title Act 1993 (Cth) (“the Act”), that it proposed to grant to Blackjack Resources Pty Ltd (“the Grantee”) exploration licence E47/1027 comprising 3.23 square kilometres, the notice containing the statement that the State considered the grant to attract the expedited procedure. The proposed licence and the land the subject thereof are hereinafter referred to as “the ELA”.
[2] On 20 July 2001, expedited procedure objection application WO01/233 was lodged with the Tribunal by Wilfred Hicks for the Wong-goo-tt-oo native title group (“Objector 1”) the registered native title claimants (WC98/40 registered 10 July 1998) in respect of the ELA, objecting to the inclusion in the notice of the said statement on the grounds that the proposed grant does not meet the criteria prescribed by s237(b) and (c) of the Act.
On 17 August 2001, Bruce Monadee and others, on behalf of the Ngarluma Indjibarndi People (“Objector 2”), also registered native title claimants (WC99/014 registered from 14 July 1999) in respect of the ELA, also lodged such an objection application (WO01/234) on the grounds that the proposed grant does not meet any of the criteria prescribed by s237(a), (b) and (c) of the Act.
[4] I am satisfied that the issues raised by the said objections can be adequately determined on the material before the Tribunal and in the absence of the parties.
[5] It is not in dispute that the ELA is wholly situate on lands the subject of pastoral lease 3114/716 approximately 11 kilometres westerly of Roebourne.
Objectors’ Material
[6.1] The objection lodged by Objector 1 is directed to the proposed grant of 14 separate mining tenements of which the ELA is only one as if the total area of the 14 tenements comprised a single tenement. It refers in general terms to the connection of the group to the lands the subject of those 14 mining tenements, claims that “within this lease there are unknown places of importance including sites of significance” (without identifying which is the proposed tenement there referred to) where the people have “left an object” connected with their traditional cultural life “which extends, to, are or have been a sacred ritual ceremonial sites and have a special significance”. The objection expresses concern that sites and objects may be interfered with resulting in an “adverse effect” on the people. It states that the people’s “connection and prior knowledge to that area would now be with the deceased”. It expresses the desire that “within this lease” a monitor accompany people in all phases of exploration when “driving on kangaroo tracks, virgin clear clay, spinifex, grassy flats and scrubby country” and invites further discussion. The objection is in no way specific to the ELA.
[6.2] Despite the wording of the objection, the contentions lodged and served by Objector 1 allege that the grant of the ELA will not meet any of the criteria prescribed by s237(a), (b) and (c) of the Act. I have read and taken into account those contentions and do not set them out. In short they contend that the grant is likely to have a negative effect on fauna in the area which will affect the hunting activities of the people, that “it is possible” that there are “registered sites” on or in the vicinity of the proposed tenement and that consultants must be engaged to identify and protect the same before development takes place. It also alleges there may be major disturbance to the land which cannot be rectified by rehabilitation.
[6.3] In support of its objection and contentions, Objector 1 relies on the affidavit of Wilfred Hicks of Roebourne sworn 26 February 2002, the contents of which are as follows:
I, Wilfred Hicks, Pensioner, of Unit 4, 30 Sholl Street, Roebourne, in the State of Western Australia, mineworker, being duly sworn make oath and say as follows:
1.I am the objector in this matter and a named claimant in the Wong-goo-tt-oo Group in the proceedings before the Federal Court. I instructed my solicitors to lodge this objection on behalf of the Wong-goo-tt-oo Group as a whole and am authorised by the Wong-goo-tt-oo Group to swear this affidavit on their behalf.
2.There are Aboriginal heritage sites on or near the tenement area that belong to and are significant to the Wong-goo-tt-oo People.
3.Destruction to these sites could be detrimental to the cultural life of the Wong-goo-tt-oo People.
4.The Wong-goo-tt-oo People by traditional rights hunt and gather bush foods and medicines for traditional use. They also collect natural objects and substances for use in their cultural practises. The Wong-goo-tt-oo People hunt and gather in a large area of land which includes the land under the objection. Proposed works on these areas may prevent the carrying out of such cultural pursuits.
5.The Wong-goo-tt-oo People practise specific and unique land related lore and customs on the land.
6.The Wong-goo-tt-oo People practise a traditional lore and custom which is specific to their traditional lands and not practised by other Aboriginal Groups. These traditions are carried out over areas which are included in the objection.
7.I have not yet had the opportunity to conduct a detailed inspection of this area and it has not been possible to obtain the assistance of any experts in identifying sites in this area.
8.I am extremely worried about what may happen to our land if the grantee party does not consult us before commencing work in this area.
9.I swear this affidavit in opposition to the application of the expedited procedure in this matter.
SWORN by the said Deponent ) Wilfred Hicks
At Karratha WA in the said State of )
Western Australia this 26th day of )
February 2002 )
[6.4] Although in paragraph 2 of his affidavit Mr Hicks asserts the existence of Aboriginal heritage sites he does so on the basis that they are on or near the tenement area, giving no indication why he says that to be so or where or how near any thereof may be. Having regard to the objection lodged by Mr Hicks on behalf of Objector 1 the inference is that he is not aware of the location or existence of any particular site. That inference is supported by paragraph 7 of his affidavit. It does not follow in any event that an “Aboriginal heritage site” is one of particular significance within the meaning of s237(b) of the Act. That an Aboriginal site is eligible for registration under the Aboriginal Heritage Act or is registered thereunder does not mean that it is a site of relevant particular significance. Paragraphs 4, 5, 6 and 7 of the affidavit are clearly addressed to at least the area covered by the 14 proposed tenements referred to in the objections and, it would seem, to the whole land the subject of the native title claim WC98/40 by the Woo-goo-tt-oo people. Like the objection, the content of the affidavit is not in any way specific to the ELA which comprises only 3.23 square kilometres whilst the claim area is extremely large. Of the 14 proposed tenements to which the objection is addressed, the following were also the subject of the s29 notice on 12 April 2001:47/1019 (86.36 square kilometres), 47/1020 (54.3 square kilometres), 47/1048 (12.78 square kilometres), 47/1049 (140.63 square kilometres), 47/1063 (220.4 square kilometres), 47/1066 (201.28 square kilometres) and 47/1068 (223.52 square kilometres). No information is provided as to the areas covered by the remaining proposed tenements to which the objection is directed. However as the 7 proposed exploration licences referred to above together with the ELA cover 942.50 square kilometres, it is clear that the 3.23 square kilometres of the ELA is a relatively insignificant area, and that the carrying out of exploration activities thereon would not, in any substantial way, interfere with the activities referred to in paragraphs 4, 5 and 6 of the affidavit to the extent that they are carried out, if at all, on the ELA. It is also of relevance that the activities of the Pastoral Leaseholder which, it can be safely inferred, involves the grazing and movement of livestock and the movement of vehicles and people are also likely to interfere with those activities in so far as they may be carried out on the ELA. On the evidence presented by objector 1, I would not make a determination that the grant of the ELA did not attract the expedited procedure.
[7.1] The objection lodged by Objector 2 alleges the objectors to have connections to all the country identified on the map which accompanied the s29 notice, including the ELA, maintained through hunting, the collection of bush tucker and medicines, the visiting and care of sites. It claims there to be “artefact scatters” in the area of the ELA left by the objectors’ ancestors which, it says, are not registered sites and can only be found by close examination of the area in question, requiring specialist expertise for identification. They contend those sites to be particularly significant as they record the historic activities and movements of their ancestors and, unless properly identified, recorded and protected, to be in danger of destruction by acts of driving across country to get to the ELA as well as by exploration activity. It is not alleged that any such scatters have in fact been located.
[7.2] I do not set out the contentions lodged and served by Objector 2 but have read the same and take them into account save to the extent that they contain statements of fact not supported by the evidence. They do however point out that the Grantee has not provided any indication of its intentions in respect of its exploration activities and, without challenge, that the pastoral lease on which the ELA is situated is held for the benefit of Aboriginal people, this being conducive to the carrying on, on it and in its vicinity, of social and community activities. They assert the existence on the ELA of sites of particular significance within the meaning of s237(b) of the Act and express the need for an Aboriginal heritage site avoidance procedure to avoid the likelihood of interference. They allege the existence on the ELA of pebblemound mice mounds, said to be sites of mythological significance reflected in initiation rituals, the native title holders believing their destruction to be detrimental and that they have an obligation to protect them. They also contend that the exploration activity will be likely to involve major damage within the meaning of s237(c) of the Act.
[8.1] In support of their contentions Objector 2 relies on the affidavits of each of David Daniel sworn 4 April 2002, Josie Samson sworn 4 April 2002 and Kenny Jerrold sworn 5 April 2002, the contents of which are set out hereunder and an affidavit of Michael Ryan, a solicitor employed by the Pilbara Native Title Service, sworn 28 October 2002 to which I later refer.
[8.2] Affidavit of David Daniel
I, David Daniel, Aboriginal Liaison Officer of 586 Andover Way, Roebourne in the State of Western Australia, being duly sworn make oath and say as follows:
1.I am a Ngarluma elder and an applicant on the Ngaluma/Injibandi (WG 6017/96) native title claim. I have authority to speak for Ngarluma people.
2.I am employed by the Pilbara Native Title Service on a part time basis as an Aboriginal Liaison Officer.
3.On Tuesday March 19 2002 I visited the proposed tenement E47/1027, (“the proposed tenement”) and surrounding areas with Mr Michael Ryan, Legal Officer of the Pilbara Native Title Service.
4.I am very familiar with the area surrounding the proposed tenement and the proposed tenement itself and know it well. The tenement is located on Mount Welcome Station, which is held by the Leramugadu Corporation for the benefit of Aboriginal people.
5.Many Ngarluma people have worked on Mount Welcome Station and many continue to visit the Station on a regular basis to hunt, collect bush tucker, look after the country and visit significant sites. Mount Welcome Station is important to Ngarluma people because of its history and because Aboriginal people own and manage the land.
6.The area of the proposed tenement and surrounds is good hunting ground. Ngarluma and Yindjibarndi people hunt kangaroo, goanna, wild goats and porcupine.
7.I visit the area of the proposed tenement and surrounds very often with my family and others. In fact, I visit the area of the proposed tenement most weekends. I visit because I know there is lots of food there and because it is very close to Roebourne where I live. When I visit I show my children how to hunt and collect bush tucker and I also teach this to other Ngarluma children. When I am in the area, I teach the children Ngarluma language and tell them about the names of different kinds of bush tucker in Ngarluma language. I use the land to help teach language to the children.
8.It is part of the way of life for Ngarluma and Yindjibarndi kids to come hunting with their families on the proposed tenement area. Kids will ask questions about the land, the plants and the animals and we tell them.
9.The hills and surrounding areas around Roebourne are used as recreation areas for Ngarluma and Yindjibarndi people. The area of the proposed tenement is such an area. A lot of Aboriginal people from Roebourne hunt in the area of the proposed tenement. Many people in Roebourne do not have licensed vehicles. People with unlicensed vehicles can drive to the proposed tenement area along the fence line. People with small cars can also drive to the proposed tenement. Many other hunting places require four-wheel drive access.
10.Another reason people frequently use the land around the proposed tenement is that it is on the way to a popular fishing spot.
11.Ngarluma and Yindjibarndi people visit the area of the proposed tenement and surrounds whenever they can. I estimate that Ngarluma and Yindjibarndi people hunt and collect bush tucker there several times a week because it is good hunting ground and easy to get to because it is close to Roebourne.
12.There is a lot of bush tucker in the area of the proposed tenement and surrounds.
13.There are also several medicine bushes that are found in the area of the proposed tenement and surrounds.
14.Exploration activities including using drill rigs, trucks and 4 wheel drives will flatten and destroy some of the plants from which we collect bush tucker. Exploration activities will also frighten away the animals that we hunt and we would have to look elsewhere for food. If I saw machinery and exploration teams in the area I would move on to another area because I know it would be a waste of time trying to hunt there. Exploration activities in the area of the proposed tenement and surrounds would interfere with our practice of hunting and collecting bush tucker.
15.There is a significant site close to the area of the proposed tenement. This is approximately two kilometres from the proposed tenement. There is an artefact scatter at the site, which I discovered while doing a survey for the widening of the road there. There are a number of grinding stones and other objects that record the historic activities of the original Ngarluma people.
16.Although the site is not within the proposed tenement I believe that it would be interfered with by the action of accessing the tenement if the grantee were to drive across the site or clear an access path through it. The site is not easily identifiable and I have been informed that the grantee has not agreed to undertake a heritage survey on the area in order to properly identify such sites and ensure their protection.
17.Also, given the proximity of the site to the tenement area, it is likely that similar artefacts exist in the tenement area.
18.When I visited the tenement area on 19 March 2002, I found a rock in the tenement area that appeared to contain an engraving. A photo of that rock, with me pointing at the engraving, is at attachment A.
19.The tenement area is a special place. There are sites of special significance around the tenement area including grinding stones, rock holes and water places. I have an obligation to look after this place.
20.The tenement area is important because it feeds many of our people. We survive off the animals there. Not being able to hunt on the tenement area will have a big effect on the daily lives of people in the community.
21.Mining companies need to talk with Aboriginal people before doing exploration work in a place like this. For one thing, exploration work will disturb the wildlife. Machinery will damage the land.
22.Ngarluma and Yindjibarndi people are guardians of the tenement area. Mining companies should have the decency to speak with us before starting work.
23.I do not want to stop exploration activities but I do want grantee parties to consult with the Ngarluma people before they start exploring. The area of the proposed tenement lies within the Ngaluma Injibandi claim and this is our traditional country. We know that we have to share our country and we can all learn to share together if we talk to each other.
24.In addition, I have been informed that if the tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:
a. Reverse circulation drilling in areas of hypersaline groundwater.
b. Diamond (core) drilling.
c. The excavation of up to 1000 tonnes of material.
25.I believe that conduct of these activities within the proposed tenement area will involve a major disturbance to the land.
SWORN by the said Deponent ) David Daniel
At Roebourne WA in the said State of )
Western Australia this 4th day of )
April 2002)
[8.3] Affidavit of Josie Samson
I, Josie Samson of Wakathuni Community via Tom Price in the State of Western Australia, being duly sworn make oath and say as follows:
1.I am a tribal Ngarluma woman and I have authority to speak for the Ngarluma people, my elders and my ancestors.
2.On Tuesday March 19 2002 I visited the proposed tenement E47/1027, (“the proposed tenement”) and surrounding areas with Mr Michael Ryan, Legal Officer of the Pilbara Native Title Service.
3.I am very familiar with the area surrounding the proposed tenement and the proposed tenement itself and know it well. When I was a child my grandparents often took me hunting there. I also visited this place with my uncle who used to muster sheep in the area.
4.It is important that future generations of Ngarluma and Yindjibarndi people go to this place. The beauty of the land in its natural state is central to our culture.
5.I am not anti-development, but this development needs to occur in a way that shows respect to Ngarluma and Yindjibarndi people. We want to know what people are doing on our country.
6.The area of the proposed tenement and surrounds is good hunting ground. Ngarluma people hunt animals there, especially kangaroos.
7.There is a lot of bush tucker in tucker in the area of the proposed tenement and surrounds. We collect bush fruit from the majaria tree. The fruit is red inside with black seeds.
8.There is a tree found in the area of the proposed tenement that is a bush medicine. It is called barriri and there is a photograph at attachment A of em with it. This photograph was taken on the area of the proposed tenement. Ngarluma and Yindjibarndi people burn the tree to make a black powder. If you rub this on your body you can get rid of sores. Also, it provides protection against sunburn.
9.The photographs at attachment B show me on the tenement area with a tree called bonangu. One of the photographs shows me pointing at sap from the bonangu. Ngarluma and Yindjibarndi people use this sap for medicine. People with heart problems boil the sap with water and drink it.
10.The first photograph at attachment C shows me on the tenement area with a tree called ganji. This tree produces a sweet gum which Ngarluma and Yindjibarndi children collect. The gum is marked with an arrow in the second photograph at attachment C. The gum is best for chewing in September and this is when the children collect it. This plant is prevalent in the tenement area and this, together with its proximity to Roebourne, makes it a popular place for children to visit.
11.The tenement area is important because it provides food and medicine for our people. We survive off the plants there. Not being able to gather bush foods and medicine on the tenement area will have a big effect on the daily lives of people in the community.
12.Exploration activities including using drill rigs, trucks and 4 wheel drives will flatten and destroy some of the plants from which we collect bush tucker. Exploration activities will also frighten away the animals that we hunt and we would have to look elsewhere for food. Exploration activities in the area of the proposed tenement and surrounds would interfere with our practice of hunting and collecting bush tucker.
13.In addition, I have been informed that if the tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:
a. Reverse circulation drilling in areas of hypersaline groundwater.
b. Diamond (core) drilling.
c. The excavation of up to 1000 tonnes of material.
14.I believe that conduct of these activities within the proposed tenement area will involve a major disturbance to the land.
SWORN by the said Deponent ) Josie Samson
At Roebourne WA in the said State of )
Western Australia this 4th day of )
April 2002)
[8.4] Affidavit of Kenny Jerrold
I, Kenny Jerrold of Cheeditha Community via Roebourne in the State of Western Australia, being duly sworn make oath and say as follows:
1.I am a Yindjibarndi elder and an applicant on the Ngaluma/Injibandi (WG 6017/96) native title claim. I have authority to speak for Yindjibarndi people.
2.On Tuesday March 19 2002 I visited the proposed tenement E47/1027, (“the proposed tenement”) and surrounding areas with Mr Michael Ryan, Legal Officer of the Pilbara Native Title Service.
3.I am very familiar with the area surrounding the proposed tenement and the proposed tenement itself and know it well. The tenement is located very close to where I live in Cheeditha, less than 6 kilometres away and I often visit the area to hunt and to collect bush tucker and bush medicines. About 100 Ngarluma and Yindjibarndi people live in Cheeditha. Most of these people are familiar with the tenement area and visit it from time to time.
4.The proposed tenement is also close to Roebourne, which is about 10 kilometres away. More than 1000 Aboriginal people live in Roebourne, and most of these people are Ngarluma or Yindjibarndi. A lot of these people come to the tenement area to hunt animals and to collect the plants that grow here.
5.The area of the proposed tenement and surrounds is good hunting ground Yindjibarndi people hunt kangaroo, goanna, porcupine, emu and bush turkey on the proposed tenement.
6.I visit the area of the proposed tenement and surrounds very often with my family and others, about once every two weeks. I visit because I know there is lots of food there and because it is very close to Cheeditha where I live.
7.Other Yindjibarndi people visit the area of the proposed tenement and surrounds whenever they can. I estimate that Yindjibarndi people hunt and collect bush tucker there at least two or three times a week because it is good hunting ground and easy to get to because it is close to Roebourne and Cheeditha.
8.There is a lot of bush tucker in the area of the proposed tenement and surrounds. For example, the fruit from the majarla tree which is like a bush passion fruit. It opens up when it is ready to eat. The photograph at attachment A shows me with this fruit that I collected from the area of the proposed tenement.
9.Ngarluma and Yindjibarndi people also collect medicines in the area of the proposed tenement. The photograph at attachment B shows a plant that I collected from the area of the proposed tenement. Ngarluma and Yindjibarndi people come to this area and collect this plant when they have problems with their eyes. This plant is an eye medicine.
10.Yindjibarndi elders, including me, use the area of the proposed tenement to teach our young people about Yindjibarndi culture. This is a good place for young people to learn how to hunt. It is also a good place to teach the names and uses of the different plants that grow here.
11.The plants that grow in the tenement area have many different uses. Sometimes people collect seeds from the grass there to make damper.
12.Attachment C is a map prepared by Pilbara Native Title Service. It shows registered Aboriginal sites near the proposed tenement. There are a lot of important sites on this map, but these are not the only important places in the area.
13.When I visited the tenement area with Michael Ryan, I saw some mounds of the pebblemound mouse. In Yindjibarndi language, we call the pebblemound mouse kurti. The mounds are where the kurti live, like a camp that kurti make for themselves.
14.These mounds are very important to me and other Yindjibarndi people because there is a song in the Yindjibarndi language about the kurti and his mound. The song is a special song because it is part of the Purnturt, which is Yindjibarndi ceremony law.
15.I believe it is likely that exploration activities could destroy pebblemouse mounds. This is bad because it is wrong to destroy the mounds. I believe that a person who destroys these mounds hurts the kurti. This is another reason that the mounds are special and why it is important that the mounds of the pebblemouse are protected.
16.Exploration activities including using drill rigs, trucks and 4 wheel drives will flatten and destroy the mounds of the pebblemound mouse. Some of the plants from which we collect bush tucker and bush medicines will be dug up and killed. Exploration activities will also frighten away the animals that we hunt and we would have to look elsewhere for food. If I saw machinery and exploration teams in the area I would feel hurt and upset inside. I would move on to another area because I know it would be a waste of time tying to hunt there. Exploration activities in the area of the proposed tenement and surrounds would interfere with our practice of hunting and collecting bush tucker.
17.I have been informed that if the tenement is granted the grantee will be permitted to undertake the following activities, subject to conditions under the Mining Act 1978:
a. Reverse circulation drilling in areas of hypersaline groundwater.
b. Diamond (core) drilling.
c. The excavation of up to 1000 tonnes of material.
18.I believe that conduct of these activities within the proposed tenement area will involve a major disturbance to the land. I can say this because I have seen the disturbance to land in the middle of the tenement area. This land has been dug up and it is no longer good for hunting and collecting bush tucker. Michael Ryan told me that that piece of land has a prospecting licence on it.
19.It is bad that the area at the centre of the proposed tenement is no longer good hunting ground. If the exploration licence is granted over the larger area of the proposed tenement my people will lose an important hunting and bush tucker area, and an important food source.
SWORN by the said Deponent ) Kenny Jerrold
At Roebourne WA in the said State of )
Western Australia this 5th day of )
April 2002)
[8.5] In October 2002 I became aware of the existence on the Tribunal file of four copies of a map dated 26 July 2002 prepared by the Department of Mineral and Petroleum Resources which had been lodged with the Tribunal to remedy apparent omissions on a map dated 28 November 2001 lodged with the Tribunal and served on the other parties on 6 December 2001 pursuant to directions made. It appears that the map of 26 July 2002 and its copies were overlooked in a changeover of Tribunal case managers. On 8 October 2002 I caused a copy of this map to be delivered to each of the parties and invited their comments.
On 22 October 2002 the Objector lodged a statement of contentions in respect of the map and, on 28 October 2002, lodged an affidavit of Michael Ryan, a solicitor employed by the Pilbara Native Title Service, sworn 28 October 2002 in support of those contentions. The map purports to show, by different coloured markings, present and prior mining tenements and areas the subject of current mining tenement applications on and within a wide area surrounding the ELA. Mr Ryan deposes to enquiries made by him on 21 October 2002 of the Mining Registrar at Karratha and that that registrar advised him that some tenements, the numbers of which appear on the map of 26 July 2002, may never have been granted and that tenements E47/991 and E47/923 shown thereon were never granted, the respective applications therefor having been withdrawn before grant. Assuming this information is correct, the accuracy of the map in respect of at least tenements E47/991 and E47/923 cannot be relied on. The State was invited to lodge a reply to that affidavit but elected not to do so. Consequently I do not act on the information in that map in coming to my determination. I do however rely on the map dated 28 November 2001 lodged on 6 December 2001 by the State to which no objection is taken.
The State’s Material
[9] The material provided by the State on which I act reveals the ELA to be on pastoral lease 3114/716 held by Mount Welcome Co Pty Ltd. It does not, however provide any information as to the shareholding of the leaseholder, and it is only from the evidence produced by Objector 2 that the Tribunal is made aware that the pastoral lease is held by a corporation for the benefit of Aboriginal people, which may not have been known to the State. It does reveal that there are no Aboriginal sites registered under the Aboriginal Heritage Act1972 (“the AHA”) on the ELA and that the Cheeditha Aboriginal community is located within 6 kilometres of the ELA. The tengraph map dated 28 November 2001 provided by the State reveals that within the external boundaries of the ELA and enclosed by its internal boundaries but not included as part of the ELA, is a current prospecting licence P47/1009 and an application in respect of the same area for a mining tenement. The map also shows a stock route for shipping stock running in a general east-west direction to Roebourne to the south of the ELA, the nearest point of which is approximately one kilometre from its southern boundary. The map reveals extensive mining interest in the area covered by it to the north, south, east and west of the ELA, evidenced by current and expired mining tenements and areas applied for as mining tenements.
The Grantee’s Material
[10] The Grantee elected to provide no contentions or evidence in respect of either objection application and in January 2002 indicated its attitude to be that the same should be resolved by the State.
Conclusion
[11] Affidavit evidence provided by Objector 2. Both Mr Daniel and Mr Jerrold reside in close proximity to the ELA and their evidence is of their current knowledge. Mrs Samson lives a considerable distance inland at Tom Price but, it seems, knows the area from her childhood days. That uncontested affidavit evidence reveals the ELA “and its surrounds” to be well used by both the occupants of the Cheeditha community of approximately 100 people, members of the Ngarluma Yindjibarndi claim group, located approximately 6 kilometres from the ELA, and by those members of the claim group resident in Roebourne, said to constitute the majority of 1000 plus Aborigines residing there. It is said by the witnesses that the activities of which they testify are fostered by the proximity of the ELA and its surrounds to the Cheeditha community and Roebourne and by the fact that it is on pastoral lease land held for the benefit of and managed by Aboriginal people. I accept that evidence. Indeed having regard to the proximity of the people and the identity of the pastoral leaseholder it would be surprising if the ELA and its surrounds were not frequently used for relevant community or social activities. I accept the evidence that it is frequently visited by members of the claim groups, not only because it is a good hunting ground and place to collect bush tucker and medicine, but also a place to teach the young people about the Yindjibarndi and Ngarluma cultures, how to hunt and how to identify and use the plants found there. That such activities are carried on also outside the boundaries of the ELA (its “surrounds”) does not detract from the evidence of the use of the ELA for the purposes described by Mr Daniel (paragraphs 4 to 13 inclusive), Josie Samson (paragraphs 4 to 11) and Kenny Jerrold (paragraphs 3 to 11). That each visited the ELA and its surrounds on 19 March 2002 with Mr Michael Ryan of the Pilbara Native Title Services establishes that they identified the ELA as part of the area, described in their affidavits as “the proposed tenement area and surrounding areas”, used by them and other members of the native title claim group for the purposes they describe. The expression “the proposed tenement area and the surrounding areas” carries the connotation of a relatively limited area to which ready access is available by reason of its proximity. I find on the evidence that the grant of the ELA is likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders of native title in relation to the land or waters concerned and who are the applicants in expedited procedure objection application WO01/234.
[12] I find the only evidence of Aboriginal sites on or in the vicinity of the ELA to be that of Mr Jerrold, (paragraphs 13 to 15) in respect of the pebblemound mouse mounds. I accept Mr Jerrold’s evidence that the mounds are very important to him in the sense of being significant because of the song which is part of the Yindjibarndi ceremony law. I am unable to conclude however that of themselves they are sites of particular significance within the meaning of s237(b) of the Act. There is no complaint or comment as to the effect on such mounds of the prospecting activity on P47/1009 or the mining or exploration activity in the areas of in the vicinity of the ELA. Access to P47/1009 is by travel across the ELA. It is not suggested that the mounds are endangered by the pastoral activities of the pastoral leaseholder or that they are peculiar to the ELA. The other witnesses made no reference to them as Aboriginal sites. I find there to be no evidence of the existence of sites of relevant particular significance on or in the vicinity of the ELA.
[13] Applying to the evidence adduced the interpretation of the expression “major disturbance” as used in s237(c) of the Act declared by the judgements in Dann v Western Australia (1997) 74 FCR 391, I am unable to conclude that the grant of the ELA is likely to involve major disturbance within the meaning and context of s237(c) of the Act.
Determination
The determination of the Tribunal is that the grant of exploration licence E47/1027 is not an act which attracts the expedited procedure, in that it is likely to interfere directly with the carrying on of the
community or social activities of the persons who are the holders of native title in relation to its lands and waters and who are the applicants in expedited procedure application WO01/234.
The Hon EM Franklyn QC
Deputy President
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