Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd

[2004] NNTTA 30

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd, [2004] NNTTA 30 (21 April 2004)

Application No:        WO03/498

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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Asia Investment Corporation Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon. C.J. Sumner, Deputy President
Place:  Perth
Date:  21 April 2004

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – likely interference with areas or sites of particular significance – act does not attract the expedited procedure.

Legislation:  Aboriginal Heritage Act 1972 (WA)

Native Title Act 1993 (Cth) ss 29, 31, 151, 237

Cases:  Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC

Hearing Date:  24 March 2004

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

Representative of the

Government party:            Mr Clyde Lannan, Department of Industry and Resources

Representative of the
grantee party:  Mr Phillip Hoff, Asia Investment Corporation Pty Ltd.

REASONS FOR DETERMINATION

Background

1. On 4 June 2003, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the Government party’) gave notice of its intention to do a future act, namely to grant Exploration Licence E38/1472 (‘the Exploration Licence’) to Asia Investment Corporation Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). The Exploration Licence is to be over an area of 33.72 square kilometres north-easterly of Cosmo Newberry Mission in the Shire of Wiluna. The notice included a statement that the Government party considered the act to be one which attracts the expedited procedure (i.e. one which can be done without the normal negotiation required by s 31 of the Act).

2. On 3 July 2003, Wilma Freddie and others, registered Native Title Claimant on behalf of the Wiluna Native Title Claimants (WC99/24 registered as from 24 September 1999) (‘the native title party’) lodged with the Tribunal an objection to the statement that the grant of the Exploration Licence attracted the expedited procedure.  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. In accordance with its normal Procedures under the Right to Negotiate Scheme the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. At a first status conference held on 17 December 2003, the parties indicated that there was some prospect of resolving this matter by agreement and requested an amendment to Directions to allow more time for negotiations to occur to which the Tribunal agreed. No settlement of the matter has been possible and the Government party and native title party have now complied with the Directions. The grantee party indicated they would rely on the contentions submitted by the Government party. At the Listing Hearing on 25 March 2004, all parties submitted that the matter could be adequately determined on the papers (s 151 of the Act) and I have decided that it can be appropriately dealt with in that way.

Legal Principles

The nature of an exploration licence and activities permitted by it

1. Section 237 of the Act provides:

   ‘237      Act attracting the expedited procedure

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

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

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

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

2. In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437, I considered the applicable legal principles (at [7]-[23]) and the nature of an exploration licence and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]-[37]). I adopt those findings for the purposes of this inquiry.

Evidence provided by the Government party

1. The evidence provided principally by the Government party establishes the following facts.

• The Exploration Licence is wholly situated on Crown Land subject to Pastoral Lease 3114/1065.

• There is no Aboriginal community within its vicinity but about 40 members of the Wiluna Claimant Group live at the community at Windidda which is approximately 30 kilometres to the north-west of the Exploration Licence area.

• The pastoral lease, “Windidda” is an Indigenous held lease in the name of the Ngangganawili Community Inc which is held beneficially by the Windidda Aboriginal Corporation whose members belong to the Wiluna Claimant Group.

• There are no sites on the Exploration Lease registered under the Aboriginal HeritageAct 1972.

• There are exploration licences which have been previously applied for or granted over, or adjacent to, the land the subject of the Exploration Licence since 1995. These were all the subject of s 29 notices and asserted that the expedited procedure was attracted. Five were not subject to objection of which two were withdrawn prior to grant and three surrendered within less than a year from grant. In two others, objections were lodged. In one (E38/1269) which covers 100% of the Exploration Licence, there was a consent determination that the expedited procedure was not attracted on 12 March 2000 and the application was withdrawn on 3 July 2000 prior to grant. In the other (E38/929) which covers only 1.4% of the Exploration Licence an objection was lodged on 13 March 1997 and the application withdrawn on 24 March 1997.

• There is a current exploration licence (E38/1343) lying some 7 kilometres to the east of the Exploration Licence. Notice under s 29 was given on 27 July 2001 and an objection (WO99/768) lodged by the Wiluna Claimants on 23 November 2001. Following negotiations and mediation, the objection was withdrawn and the tenement granted on 4 November 2002. Additional granted and pending exploration licences lie to the south at distances of between 15 and 20 kilometres.

Evidence provided by the native title party

1. In support of its objection and contentions, the native title party relies on the affidavit of Dr Lee Sackett of Ferry Street, Queensland (undated), the contents of which are as follows:

   ‘I, DR LEE SACKETT of 219/35 Ferry Street, Kangaroo Point, in the State of Queensland, Anthropologist, affirm 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, that is, with the claimants (“Claimants”)  and country (“Claim Area”) of Native Title Claim WC 99/24.

   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 this affidavit in respect of intended exploration activity resulting from the proposed grant of tenement E38/1472 located east-north east of Wiluna.

   Tjukurrpa/Dreaming

   4.   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, Claimants see themselves as having two kinds of ancestors: parent and grandparents from whom they are descended, and the Super-natural 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 Claimants, 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 Kirnara/Moon Man, Tjakalukulu/the Pleiades or Seven Sisters, 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 Claimants see the Claim Area countryside, and their rights and responsibilities with respect to it.

Tjukurrpa Karlaya/Emu Dreaming

7.   It is said that Karlaya/Emu Beings came to the Claim Area from the west.  They had been, and were being, pursued Wati Kutjara /Two (Goanna) Men. One view has it that Wati Kutjara had chased Karlaya from country far to the north of the Claim Area, south along the line of some of the waters which later became ‘wells’ on the Canning Stock Route.  Then, from sites not far north of the Claim Area, the pursued and their pursuers moved across to the south of what now is the Meekatharra area, where Wati Kutjara killed and ate Emu.  From here, the remaining Emu fled eastwards, followed by the Two (Goanna) Men.  

8.   The yiwarra (‘track’ or ‘path’) of Karlaya is punctuated by waters: watercourses, lakes, claypans and the like.  For example, the many gum trees along Negri or West Creek which runs from the west of, and on to the south of, Wiluna township are (metamorphosed) Dreaming Emu.

9.   To the west of E38/1472, Emu fashioned Tingkal (Dingle Claypan.  A hill named Tulu (“Tooloo Bluff”) to the north of Tingkal is Emu, travelling east.  Hills to the north of, and according to informants such as Louis Thompson extending into, E38/1472 likewise are Emu, moving eastwards.  To the east of E38/1472, at Twin Swamps,   Emu performed ceremony.  Wati Karlaya/Emu Men performed rites at the westernmost of the claypans/swamps while Minyma Karlaya/Emu Women performed rites at the easternmost of the claypans/swamps.

10.    Karlaya eventually left the Wiluna Native Title Claim area and moved on to and through sites in the Gibson Desert and Irrunytju-Papulankutja Native Title claim area, and from the latter on into South Australia, making “ngurra pirni” (ngura, among other things, means ‘sites’ and ‘camps’ and pirni means ‘many’) along the way.  As they travelled, both Wati Karlaya and Minyma Karlaya performed rituals.

11.    The nature and extent of the Emu Dreaming means that as well as being of particular significance to the Claimants, it is of significance to their Western Desert fellows.

12.    Claimant men and women have both the authority to speak about Wiluna area Dreamings and sacred sites, 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 their area. They cannot choose to ignore their responsibilities in this regard; matters of Dreamings and sites are not matters for Wiluna Claimants, or any Western Desert people, to decide wholly on their own.

13.    Today, people at Wiluna, Patjarr (in the Gibson Desert claim area), Blackstone and Wingellina (in the Irrunytju-Papulankutja claim area), among other places, ‘look after’ Karlaya sites, rites and stories.  That is, people at these (and other) widely separated spots are linked and inter-linked in shared and counter-balancing responsibilities to the Dreaming.’

1. The native title party also relies on the affidavit of Mr Louis Thompson of Bondini Community, Wiluna, sworn on 17 February 2004, the contents of which is as follows:

   ‘I, Louis Thompson 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 of native title claim WC 99/24 - the Wiluna Claim.

   2.I believe in and follow the system of traditions, laws and customs belonging to the people who are in the Wiluna claim.

   3.I speak for the country the subject of tenement E38/1472 because I have special knowledge of the sites, stories, songs and dance for that country.

   4.I have camped, lived and worked in the area which includes tenement E38/1472 as well as the surrounding area including Leary Bore, James Pool, Skeleton Creek, Twin Swamps and along 14 Mile Creek.  My ancestors also camped or visited those places because it was their country.  Skeleton Creek, Twin Swamps and 14 Mile Creek are all special sites in my country.

   5.My responsibilities for the area include:

   (a)    caring for the country by teaching my people about the importance of the area and sites within it;

   (b)    performing ceremonies, which include singing songs for that country’s dreaming; and

   (c)    preventing damage to the area by making sure the wrong people (including women and children) do not access the area.

   Sites of Significance

   6.Tenement E38/1472 includes the range which we call Mundin which is an area of particular significance to my people because it is part of the Karlaya Tjukurpa Yiwarra (Emu Dreaming Track).  This and other Dreaming Tracks are important to my people since they tell the story of how the land was created by the spiritual travels of ancestral beings.

   7.Just to the north of tenement E38/1472 is Skeleton Creek, which has tributaries that flow from tenement E38/1472.  In the old days there was a massacre at Skeleton Creek when the white pastoralists shot my people.  That is why it is called Skeleton Creek.  Some of my people are buried out there.

   8.At the start of Skeleton Creek, near the fork up towards Cottonbush Bore, is a special rock that the old people performed ceremonies at the make rain.  This site should not be disturbed.

   9.Another Dreaming Track, the Kangaroo Dreaming, also runs near to tenement E38/1472.  It goes along past Fourteen Mile Well heading east past Lynne Bore and meets the Emu Dreaming near Barrel Pool.  This is a special place in my country.

   10.The Dreaming Tacks that run through and near to tenement E38/1472, as well as the tenement’s proximity to other significant sites, mean that the area of the tenements and surrounds is of special significance to my people.

   11.In accordance with the traditions, laws and customs of my people no person should disturb or damage the landscape of a Dreaming Track.

   12.The country belonging to the Emu Dreaming could be damaged by ground disturbance, including drilling.  Nearby sites may be damaged in accessing the tenement.

   13.Women and children are not allowed to access the range that goes through tenement E38/1472.

   Community Activities

   14.Windidda Station on which tenement E38/1472 is located is owned and run by my people and they access the area surrounding and including tenement E38/1472 for traditional, community and work purposes.

   15.Just south of tenement E38/1472 is also an important track between Prenti Downs Station and Windidda Station which was used by my ancestors for hunting and camping.

   16.Myself and other appropriate traditional custodians regularly access the area surrounding tenement E38/1472 area.’

Community or social activities (s 237(a))

1. For the objection to be upheld the evidence must show that there is a likelihood (in the sense of a real risk) that there will be substantial impact on the community or social activities of the native title party.  The native tile party contends that the grant of the Exploration licence will directly interfere with their community or social activities on the basis that:

• first, the claimants camp, live and work on the Exploration Licence land and surrounding areas including Leary Bore, James Pool, Skeleton Creek, Twin Swamps and along 14 Mile Creek and use the road south of the tenement from Windidda Community to Prenti Downs Station; and

• second, allowing access to and activities on the Exploration Licence area will directly impact on the claimants’ capacity to order their community activities based on their customs and beliefs, by denying those persons who have responsibility to care for the land the capacity to properly exercise their obligations through consultation.

1. With respect to the first contention the evidence is limited.  The Exploration Licence is situated on Windidda Station a pastoral licence owned by a body which includes the Wiluna claimants and according to one of the members of the claimant group with authority to speak for the area (Louis Thompson’s affidavit, para 1-3, 14) is accessed for traditional, community and work purposes.  Although the access is said to be regular (para 16) no details of the activities are provided.  The actual community where claimants live is some 30 kilometres away. 

2. There is a general statement from Mr Thompson that he and his ancestors have camped, lived and worked in the area (para 4) suggesting that this activity has occurred in the past but even if related to the present the activities are not specified. There is a similar reference to the surrounding area including Leary Bore, James Pool, Skeleton Creek, Twin Swamps and along 14 mile Creek.  These areas are not on the Exploration Licence.  Skeleton Creek is some 8 kilometres to the north and Twin Swamps some 10 kilometres to the east and are too distant to suggest that any exploration will interfere with the relatively undefined community and social activities of the native title party.  Other areas (14 Mile Creek, James Pool and Leary Bore) are some 1-2 kilometres from the Exploration Licence.  The exploration activity will not take place on these areas and any interference would be caused as a result of gaining access to the Exploration Licence or incidental activity such as camping.  While it is conceivable that this could occur, my finding is that the requisite level of interference is unlikely as there is little specific evidence of the native title party’s actual community or social activities carried out over these areas.  The track between Prenti Downs Station and Windidda Station is only said to have been used by Mr Thompson’s ancestors.  Despite this I can infer that the track would currently be used by members of the claimant group.  The use of such a track by the claimants (and presumably others) is not likely to be directly interfered with by exploration activities.  The track runs reasonably close to the southern boundary of the Exploration Licence, suggesting that any access to it would be from this track thus lessening the likelihood of interference with any community or social activities conducted on the areas mentioned above.

1. One final point needs to be made.  One of the community or social activities which it is claimed will be interfered with is ‘work’ (Louis Thompson’s affidavit - paras 4, 14).  The Tribunal considers that the relevant activities must arise from the claimed native title rights and interests (Walley v Western Australia at [13]-[14]). Work on the pastoral station does not qualify in this respect as it does not arise from and is not related to the claimed native title rights and interests.

2. My conclusion is that the evidence of community or social activities which the native title party says will be interfered with are of a general and unspecified nature and insufficient to lead to a finding that the exploration activity will directly interfere with them in a substantial or more than trivial way.

3. With respect to the second contention, the Tribunal accepts the evidence relating to the responsibility of claimants to care for the land but in order for an objection to be successful there must be evidence of actual community or social activities arising out of this responsibility which will be directly interfered with in a substantial way by the exploration activity.  Again the Tribunal is faced with generalised statements about obligations to look after the country which are insufficiently specific to identify the community or social activities which may be interfered with.  The Tribunal has dealt with similar situations in other determinations (Walley v Western Australia at [15]-[21] citing Silver v Northern Territory of Australia [2002] NNTTA 18; (2002) 167 FLR 398) when considering the amendment to s 237(a) made in 1998 where the words ‘community or social activities’ were substituted for ‘community life’. The Tribunal has held that the amendment narrowed the scope for contentions of the kind made here to be successful as the requisite interference is no longer with the broader notion of community life but is now more restricted by reference to activities. As Deputy President Franklyn said in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Adelaide Prospecting Pty Ltd, NNTT WO02/281, [2003] NNTTA 120 (27 November 2003), Hon E M Franklyn QC (at 12): ‘That there may be obligations in respect of land does not of itself translate into a community or social “activity” of the claimant group.’

4. The Tribunal has held that the existence of prior mining or pastoral activities which have in the past or which currently affect the native title party’s  community or social activities may be taken into account in assessing whether the grant of a mining tenement is likely to further affect such activities (Walley v Western Australia at [12]). In this case the pastoral lease is owned by a body associated with the claimant group which means that the existence of pastoral activity is less relevant in this respect as whether pastoral activity is carried out in a particular area and currently affects community or social activities arising from their claimed native title rights is in the control of the claimants. I have also not given great weight to the prior or existing mining tenements or applications for them. There is no evidence of the extent of actual exploration activity and in recent times these exploration licences have not been in force for extended periods. Some have been the subject of objections by Wiluna claimants thus confirming their concerns about exploration activity being carried out in the area without their involvement.

Sites of particular significance

1. The issue here is whether there is likely to be (in the sense of a real risk) of interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions.  The fact that no sites are recorded on the Register kept under the Aboriginal Heritage Act does not mean that there may not be sites or areas of particular significance to the native title party over the area of the Exploration Licence. The Register does not purport to be a record of all Aboriginal sites in Western Australia and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.  I accept the evidence of Dr Sackett.  What he says about the Tjukurrpa, Dreaming or the Law generally can be readily accepted.  In particular he refers to Karlaya/Emu Beings who were pursued by Wati Kutjara/Two (Goanna) Men and the ceremonies performed by Wati Karlaya/Emu Men and Minyma Karlaya/Emu Women at Twin Swamps to the east of the Exploration Licence.  Hills which extend into the area of the Exploration Licence also represent Emus moving eastwards (Dr Sackett’s affidavit - para 9). 

2. Mr Thompson says that the Exploration Licence includes a range of hills called Mundin which is an area of particular significance to the native title party because of the Karlaya Tjukurpa Yiwarra or Emu Dreaming Tracks (affidavit - para 6).  He says that this Dreaming Track and others near the Exploration Licence and other significant sites (referred to in his affidavit - paras 7, 8 and 9) means that the area and surrounds of the Exploration Licence is of ‘special significance’ to the Wiluna claimants (affidavit - para 10).  Of importance also is his evidence that women and children are not allowed to access the range that goes through the Exploration Licence which suggests that it is a special place to the claimants (affidavit - para 13).  None of this evidence is contested by the Government or grantee party and is sufficient to support a finding that at least some part of the area of the Exploration Licence is a site or area of particular significance to the native title party in accordance with their traditions. 

3. I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act 1972 (WA) make it unlikely that there will be interference with the area or sites. Whether this is the case depends on the facts of particular matters and the nature and incidence of areas or sites which exist (see cases cited in Walley v Western Australia at [51]). Some of the sites identified by Mr Thompson are not on the area of the Exploration Licence. Skeleton Creek and the Cottonbush Bore site (approximately 8 Kilometres away), Fourteen Mile Well, Lynne Bore and Barrel Pool (approximately 15 kilometres away) are not close enough to the Exploration Licence to make it likely in ordinary circumstances for exploration activity on it to interfere with these sites. There is no suggestion that access to the Exploration Licence will need to be via these areas. The main concern is that a section of the hills (Mundin) on the area of the Exploration Licence is of special significance but its parameters are not specifically defined thus requiring consultation with the native title party to ensure that their views are taken into account if exploration is to proceed.  In addition, a site which must be avoided by women or children will need to be the subject of consultation.

4. The grantee party has chosen not to provide any contentions or evidence of what it intends to do by way of site protection. While the Tribunal can presume that the grantee party will obey the law the nature of the area or site identified in this case (hills containing identified Dreaming stories and which according to the traditions of the native title party are gender restricted) mean that there is a real risk of interference unless the normal negotiations between the parties provided for in s 31 of the Act occur.

Major disturbance

1. No specific contentions were made by the native title party on this issue but in any event no finding is necessary given my findings in relation to s 237(b).

Determination

1. The determination of the Tribunal is that the grant of Exploration Licence E38/1472 to Asia Investment Corporation Pty Ltd is not an act attracting the expedited procedure.

Hon C J Sumner

Deputy President

21 April 2004