Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd

[2003] NNTTA 120

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd. [2003] NNTTA 120 (27 November 2003)

Application No:        WO03/281

IN THE MATTER of the Native Title Act 1993 (Cwlth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Wilma Freddie and Others on behalf of  the Wiluna Native Title Claimants (WC99/24) (native title party)

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The State of Western Australia (Government party)

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Adelaide Prospecting Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon. EM Franklyn QC, Deputy President
Place:  Perth
Date:  27 November 2003

Representative of the
native title party:                 Mr Steve Ryan, Ngaanyatjarra Council (Aboriginal Corporation)

Representative for the
Government party:              Mr Clyde Lannan, Department of Mineral & Petroleum

Resources

Representative of the
grantee party:  Mr Denis Hawtin, Adelaide Prospecting Pty Ltd.

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – evidence insufficient to support objection - determination that the act attracts the expedited procedure.

Legislation:          Aboriginal Heritage Act 1972 (WA)
  Mining Act 1978 (WA), s66
  Native Title Act 1993 (Cth) ss31, 109, 148, 151, 237

Cases:                  Chienmora v Striker (1996) 142 ALR 21 at 34-35

Lapthorne & Ors on behalf of the Thudgari People/Western Australia/Global             Stone Group Inc, [2002] NNTTA 231 (13 November 2002), Hon E M Franklyn

Western Australia v Ward (2002) 191 ALR1; [2002] HCA 28

REASONS FOR DETERMINATION

Background

1. On 3 January 2003, pursuant to s 29 of the Native Title Act 1993 (“the Act”), the State of Western Australia (“the State”) gave notice of its intention to do a future act, namely to grant Exploration Licence E69/1793, comprising 123.2km² (“the Exploration Licence”), to Adelaide Prospecting Pty Ltd (“the grantee”) under the Mining Act 1978 (WA). The notice included a statement that the State considered the act to be one which attracts the expedited procedure (ie one which can be done without the normal negotiation required by s 31 of the Act).

2. On 31 March 2003, Wilma Freddie and others, registered Native Title Claimants on behalf of the Wiluna Native Title Claimants (“the native title party”) (WC99/24 registered as from 24 September 1999) lodged with the Tribunal an objection to the statement that the grant of the Exploration Licence attracted the expedited procedure. The objection contained assertions which revealed the native title party to rely on sub paragraphs (a) (b) (c) of s 237 of the Act. It alleged, inter alia, that the native title party would produce evidence of a number of specified matters including areas and sites of particular significance on the Exploration Licence, interference with the community’s presence or activities on the Exploration Licence and evidence of concern as to the likelihood of interference with significant areas and sites on the Exploration Licence. The entire area of the Exploration Licence is situated on the land the subject of the native title party’s claim WC99/24.

The Directions

1. On 2 April 2003 the Tribunal issued Directions for the lodgement by each party with the Tribunal and service on the other parties of their respective Contentions and other documents and material to be relied on by them respectively. The Directions provided for compliance by the State by 4 September 2003, the native title party by 11 September 2003 and the grantee party by 18 September 2003. The Directions also provided for a Listing Hearing to be held on 25 September 2003, for liberty to the parties to apply to vary the Directions, drew attention to the provisions s 141 of the Act (which renders the objection subject to dismissal for failure by the objector within a reasonable time to comply) and that, as far as practicable, the parties were to provide evidence in documentary form. They also made provision for the preservation of confidentiality for documents of a confidential nature.

2. The State and native title party duly complied with those Directions.  At an adjourned preliminary conference on 3 September 2003, the grantee party indicated that it would rely on the contentions submitted by the State. 

3. At the Listing Hearing on 25 September 2003, the native title party, the grantee and the State advised the Tribunal that each was satisfied that the issues raised by the Objection Application could be adequately determined on the material before the Tribunal and in the absence of the parties.

4. On 2 October 2003 I was appointed by the Tribunal for the purposes of this enquiry.  I am also satisfied that this application can be adequately determined by considering, without holding a hearing and in the absence of the parties, the documents and other material lodged with or provided to the Tribunal.

Material Provided by the State

1. The State contends that the grant of the Exploration Licence will not give rise to any of the issues raised by s 237(a), (b) and (c) of the Act. It refers to the provisions of s 20(5) of The Mining Act 1978 (WA) as they apply to pastoral lease land, to the provisions of ss 5, 17 and 18 of The Aboriginal Heritage Act 1972 (WA) (“the AHA”), to the standard conditions which will apply to the grant as set out in the schedule attached to its contentions and to the conditions which are imposed on the grant by s 63 of the Mining Act. It states that the grant will include an endorsement drawing the grantee’s attention to the provisions of the AHA. The material provided by the State pursuant to the Directions reveals, inter alia, the Exploration Licence to be wholly situated on Pastoral Lease 3114/1069 and to be the subject of Crown Lease 240/1973, there to be no Aboriginal community within its vicinity, there to be no sites on it registered under the AHA and there to have been the following previous tenements applied for or granted over portions of the land the subject of the Exploration Licence:

   1.Exploration Licence 38/752, application withdrawn prior to grant on 29 August 1995;

   2.Exploration Licence 38/754 application withdrawn prior to grant on 29 August 1995;

   3.Exploration Licence 69/1080 application withdrawn prior to grant on 17 August 1995;

   4.Prospecting Licence 69/1182 granted 23 March 2000 and surrendered on 7 November 2001 which occupied approximately 84.6% of the Exploration Licence.

2. The topographical map provided by the State pursuant to the Directions shows the Exploration Licence to be abutted to the south by a current exploration licence (E38/908) and to the west by an area applied for as an exploration licence (E69/1568).  There is a current licence approximately 7-8km to the south-east and it is virtually surrounded by either exploration applications which were not granted or by expired exploration licences for distances in excess of 15km.  Unfortunately the information provided by the State does not distinguish between applications which were not granted and exploration licences which have expired or have been surrendered, but the information provided does reveal a history of interest by way of exploration in the area of and surrounding the Exploration Licence.

Material Provided by the Native Title Party

1. The Directions required the native title party to provide, inter alia,. to the Tribunal and each of the other parties, by the specified date, a statement of its contentions to include a statement of the nature and location of sites or areas of significance on or adjacent to the Exploration Licence, identifying in each case the particular significance of the site or area, a statement of the community or social activities of the native title party contended to be likely to be interfered with directly by the grant of the Exploration Licence and a copy of each document relevant to the enquiry, including any Affidavit to be relied on by the native title party.  They also required the lodgement and service of any statement of the evidence of any witness for the native party and details of where it is proposed that such evidence be heard. 

2. Pursuant to the Directions, the native title party provided a statement of contentions and supporting affidavits.  The statement of contentions outlines the claimants’ belief that the land within their claim area, including the Exploration Licence, was created by ancestral beings during the Dreamtime, during which they criss-crossed the claim area leaving mythological tracks as evidence of their existence and activities.  Three Dreaming tracks are described as “passing through or adjacent to” the Exploration Licence, they being “Goanna Woman Dreaming”, said to run east to west through the Exploration Licence, the “Pleiades or Seven Sisters Dreaming”, said to run east through the Exploration Licence and “Two Snakes Dreaming”, said to run adjacent to the Exploration Licence.  The claimants assert that their belief in this mythology “determines the ordering of their social and community activities” and outlines the ‘traditional laws and customs’ which, they, say impose obligations on them relating to caring for the land by controlling access to it and ensuring that damage does not occur to important sites by identifying to visitors areas that should be avoided.  They contend that the grant of the Exploration Licence will interfere with their community life or social activities by depriving them of the opportunity to carry out these responsibilities by reason of a lack of opportunity to be consulted regarding the proposed exploration activities; that the grantee might cause disturbance to sites of particular significance possibly caused through the grantee’s ignorance of their location; and that the grant of the Exploration Licence will likely lead to major disturbance to land or waters.  This disturbance, it is claimed, will be occasioned by the grantee exercising the rights conferred by the Exploration Licence.  The statement of contentions concludes with an assertion that the issue of what constitutes ‘major disturbance’ should be assessed according to the “standards of the Wiluna Native Title Claimants and not by the standards of the wider Australian Community”.

3. In support of its objection and contentions, the native title party relies on the affidavits of Dr Lee Sackett of Ferry Street, Queensland (undated) and Mr Billy Patch, (affirmed the 8^th day of September 2003) the contents of which are set out hereunder:

Affidavit of Dr Lee Sackett

I, Dr Lee Sackett of 219/35 Ferry Street, Kangaroo Point, in the State of Queensland, Anthropologist, make oath and say as follows:

1.      I hold a Doctor of Philosophy degree in Anthropology, and have extensive anthropological experience with people and country in and around the township of Wiluna, ie with the claimants and country of native title claim WC99/24.

2.     I have been, and continue to be, responsible for the conduct of anthropological research for the purposes of preparing a report for native title purposes for the Ngaanyatjarra Council, the Native Title Representative Body presently representing the Wiluna claimants.

3.      I have prepared the affidavit in respect of intended exploration activity resulting from the proposed grant of tenement E69/1793 located east-north east of Wiluna.

4.      Wiluna claimants hold that events and happenings of the Tjukurrpa, or ‘Dreaming’ formed and contained that which “came after” – that which is now.  They say that during the Dreaming, great Supernatural Beings gave shape to the previously featureless landscape, and animated earth, water and sky.  Importantly, the Beings also established and laid down a way of life for the people to follow for all time.  Claimants today term that which they regard as the crucial fundamentals of the system “the Law” or “Dreaming Law”.

5.      In a very real way, Wiluna claimants see themselves as having two kinds of ancestors: parent and grandparents from whom they are descended, and the Supernatural Beings, so-called ‘totemic beings’, from whom both they and their human ancestors ultimately are descended.  Human ancestors bridge the gap between the here and now and the time when the Supernatural Beings were active in the world.  As understood by older claimants, this Dreaming period was the time or era “before my grandfather’.

6.      The Wiluna people, like other Western Desert people, personify their ultimate ancestors both as wholly human in form and, as is more usually the case, as aspects of the environment – as Wati Kinara/Moon Man, Wati Kutjara (Two [Goanna] Men), Papa/Dingo Beings, etc.  Claimants see ready evidence of the activities and labours of Ancestral Beings in the now fully-fashioned world around them.  Put another way, Dreaming beliefs shape the way Wiluna people see the claim area countryside, and their rights and responsibilities with respect to it.

7.      It is said that papanymaru (Goanna Woman), who sometimes is called Minyma Kurkarit (Sand Monitor Woman) or simply Minyma (Woman), came to and passed through the area of what is now Tenement E69/1793 from a site between Meekatharra and Cue.  She had been resting there when she was seen by the Wati Kutjara (Two [Goanna] Men).  Suspecting, correctly, they had amorous intentions, she rose and ran off, the Two Men in heated pursuit.  However, that ‘Woman [was] very clever’; she generally eluded them.  On the odd occasion when they did catch up with her, and lay down with her, one on either side, she was able to slip away undetected.  Undeterred, Wat Kutjara ‘followed her right up to Warburton’.

8.      Tjakalukulu, Minyipurru and Kungkarrungkarru are three of the claimants’ names for the Pleiades or Seven Sisters Dreaming.  As is the case with certain ot6her Dreamings, there appears to be a number of Pleiades/Seven Sister tracks or stories running across the Western Desert.  The Tjakalukul/Minyipurru/Kungkarrungkarruknown to the claimants came to an passed through the area of the Tenement from far to the west-southwest – ‘near the sea’.  Followed by Wati Nyirru, also known as Wati Yula, they travelled on to and through portions of the Biriliburu and Gibson Desert Native Title Claim areas.

9.     The Tjila Kutjara (Two Snakes) came to the ara of the Tenement area from sites to the north-northeast, in lands in the Birriliburu Native Title Claim area.  Just as the Goanna Women and Seven Sisters had pursuers, the Two Snakes were constantly annoyed by Tjinku, a ‘cheeky’ Dragonfly Being.  The Tjila Kutjara and the troublesome Tjinku travelled on to the lands in the Sir Samuel Native Title Claim area.

10.    Claimant men and women have both the authority to speak about Wiluna area Dreamings and sacred places, and important obligations towards these stories and places.  As claimants tell it, they have no choice in matters regarding Dreamings and sites.  They are obliged, by Dreaming dictate and by their Western Desert fellows, to look after the stories and places of an area. They cannot choose to ignore their responsibilities in this regard; matters of Dreamings and sites are not matters for Wiluna people, or any Western Desert people, to decide wholly on their own.

Affidavit of Mr Billy Patch

I, Billy Patch of Bondini Community Wiluna, in the State of Western Australia,  make oath and say as follows:

1.I am one of the senior native title claimants for the country in and around the township of Wiluna, ie the country of native title claim WC99/24.

2.I believe in a system of traditions, laws and customs that relates to the Wiluna People.

3.Tenement E69/1793 is located on Niminga Pastoral Lease, and in country where there are many Tjukurrpa (or Dreaming) tracks and sites.  There are three dreaming tracks that pass through or nearby the tenement.  These are:  the Tjukurrpa Papanymaru (Goanna Woman Dreaming), Tjukurrpa Tjakalukulu/Minyipurru/Kungkarrungkarru (Pleiades or Seven Sisters Dreaming), The Tjukurrpa Tjila Kutjara (Two Snakes Dreaming).

4.       There are sites for each of these Tjukurrpa around Tenement E69/1793, and there is a Tjukurrpa site in the breakaway/hill country in the tenement.

1. Wiluna people have the authority to speak about Wiluna area Dreamings and sacred sites, and we have important obligations towards these stories and places.  Under our law we have to look after these Dreaming places and stories.  I am authorised under the traditional laws and customs of the Wiluna people to speak in relation to these places and stories, but I am not the main speaker.

2. If any site or Dreaming track is desecrated there could be serious consequences for the Wiluna people.

3. Desecration could entail someone not respecting the site or track in a number of ways, such as:

   a.the wrong gender seeing the site;

   b.a visitor not being introduced to a site by the right people; or

   c.physical damage to the site.

4. To determine which parts within a dreaming track are important requires a physical inspection, as does determining how best to protect a site.  It is difficult to say exactly where these areas are from a map, this is why the Wiluna people like to make heritage agreements and do heritage surveys to make sure our sites and Dreamings are protected.

1. The evidence of Dr Satckett refers to the rights and responsibilities of the native title claimants in respect of the claimed land and of “Dreaming Tracks” which criss-cross it. He refers in particular to three such tracks which are said by him to have “passed through” the Exploration tenement. The native title party’s contentions however refer to only two such tracks passing through the Exploration Licence and one running adjacent to it. Mr Billy Patch also refers to three “Dreaming Tracks” but describes them as passing “through or nearby the tenements”. Neither the contentions nor the evidence identify the nature or location of any such track other than in a very general way and this despite the directions requiring a statement of the nature and location of sites or areas of significance on or adjacent to the Exploration Licence. There is no evidence whatsoever of community or social activities of the native title claimants of the nature referred to in s 237(a). That there may be obligations in respect of land does not of itself translate into a community or social “activity" of the claimant group. The Exploration Licence being on the Pastoral Lease, there would seem to be no longer a traditional right of the native title holders to say who could or who could not come onto it (State of WA v Ward & Ors [2002] HCA28; 8 August 2002, paras 192-194).

2. There is no evidence of the existence on the Exploration Licence of any area or site of significance likely to be interfered with by the grant other than that of Mr Billy Patch to the effect that there is a Dreaming site “in the breakaway/hill country in the tenement”.  There is however no evidence as to where that site is or may be.  Nor is there any evidence that Mr Patch is aware of the boundaries of the Exploration Licence and paragraph 8 of his Affidavit gives reason to doubt that he is so aware.  There appears to be no reason why he and or other members of the claimant group could not have physically identified the location of any such site or area so that their representative, the Ngaanyatjarra Council, which signed the objection and contentions on their behalf, could then comply with the directions and I can see no reason why, if the Exploration Licence be granted, such sites cannot be immediately identified to the parties.  In such case the provisions of the AboriginalHeritageAct (1972) will apply to protect any such site.

Conclusion

1. The issues of the likelihood of interference “directly with the carrying on of community or social activities of the persons who are the holders of native title” (s 237 (a)) or of the likelihood of interference “with areas or sites of particular significance in accordance with their traditions” to such persons (s 237 (b)), only arise for consideration if there is evidence of the carrying on of any such activities and/or of the existence of any such area or site, as the case may be. To be a relevant site of particular significance within the meaning of s 237(b), the site must be one of more than ordinary significance in accordance with the traditions of the native title holders (Chienmora v Striker (1996) 142 ALR at 34 to 35). The directions required a statement of the community or social activities said to be likely to be interfered with as well as of the nature and location of any area or site of significance together with evidence identifying the relevant “particular significance”, as the case may be one to be provided by the native title party. The information provided does not comply with these directions. There is no evidence of relevant activities and inadequate evidence of the nature and location of relevant sites. Such particulars are relevant to the issue of “likelihood” (Lapthorne and Ors/The State of Western Australia/Global Stone. WO01/581 13 November 2002 Deputy President the Hon. E M Franklyn).

1. The material provided by the State earlier referred to includes a statement of the conditions to be endorsed on the Exploration Licence if granted. They impose conditions for the limitation of damage or disturbance to the land the subject of the Exploration Licence and for rehabilitation of any such land disturbed by drilling holes, costeans or otherwise caused by exploration. There is no reason to assume that the grantee will not act accordance with the provisions of the AHA or will breach the conditions imposed on the proposed grant. It is of some significance that the Exploration Licence was, from November 1996 until January 2001, the subject of an Exploration Licence covering some 84.6% of its area and is surrounded by land the subject of past exploration interest and activity for some distance in most directions (See the topographical map forming part of the State’s material). The meaning of “major disturbance” in s 237(c) was considered in Dann v Western Australia 74 FCR 391. The question whether there is a likelihood of major disturbance is to be determined from the viewpoint of the general community but taking into account the concerns of the local community as disclosed by the evidence. The mere assertion by the native title party that exploration activities are likely to involve major disturbance is not enough. Having regard to the conditions to be imposed on the Exploration Licence, the provisions of the AHA, the history of the grant of a previous mining tenement on the Exploration Licence, and the evidence of exploration interest and activity in its vicinity and taking into account the concerns of the native title claimants as revealed by the evidence I am satisfied that the grant of the Exploration Licence is not likely to involve major disturbance or create rights of the nature referred to in s 237(c) of the Act.

Determination

The determination of the Tribunal is that the grant of Exploration Licence E69/1793 to Adelaide Prospecting Pty Ltd, is an act which attracts the Expedited procedure under the Act.

Hon EM Franklyn QC

Deputy President

27 November 2003