Wilma Freddie on behalf of the Wiluna Group/Western Australia/Giralia Resources NL

[2002] NNTTA 29

NATIONAL NATIVE TITLE TRIBUNAL

Wilma Freddie on behalf of the Wiluna Group/Western Australia/Giralia Resources NL, [2002] NNTTA 29 (8 March 2002)

Application No:        WO01/337

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 on behalf of the Wiluna Group (Native Title Party)

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The State of Western Australia (Government Party)

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Giralia Resources NL (Grantee Party)

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

Tribunal:           Hon C J Sumner, Deputy President
Place:                 Perth
Date:                  8 March 2002

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:Native Title Act 1993 (Cth) ss 151, 237

Cases:Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Western Australia/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002

Counsel for the

native title party:                 Mr Michael Rynne

Representative of the

native title party:                 Ms Kellie Hill, Ngaanyatjarra Land Council

Representative of the

Government party:             Mr Phil Boyland, Department of Mineral and Petroleum Resource

Solicitor for the

Government party:             Crown Solicitor

Representative of the

grantee party:  Mr Dennis Hawtin

REASONS FOR DETERMINATION

Background

1. On 16 May 2001, pursuant to s 29 of the Native Title Act 1993 (‘the Act’), the State of Western Australia (‘the Government party’) advised its intention to do a future act, namely to grant exploration licence 69/1571 (‘the exploration licence’) to Giralia Resources NL (‘the grantee party’) under the Mining Act 1978 (WA). The exploration licence is over an area of 154.54 square kilometres located 111km north east of Wiluna, in the Shire of Wiluna (centroid - latitude 25^o 40 minutes, longitude 120^o 41 minutes). The notice included a statement that the Government party considered that the act is an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. On 14 September 2001, Wilma Freddie on behalf of the Wiluna Group (‘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 native title party’s Application for Determination of Native Title (WC99/24) was registered by the Tribunal on 24 September 1999.  The area of the exploration licence is situated on this claim area.

3. The Tribunal accepted the objection application on 9 October 2001.

4. 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 was attracted.  After time to consider whether to seek an oral hearing and leave to cross-examine witnesses, the grantee party decided that it did not wish to do so.  The grantee party provided no contentions or evidence but indicated that it would rely on those lodged by the Government party.  The other parties were content for a determination to be made on the papers and I have decided that I can adequately deal with the matter in that way (s 151 NTA).

5. 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.’

Legal principles

The nature of an exploration licence and activities permitted by it.

1. In Western Australia/Kevin Peter Walley & Ors (Ngoonoru Wadjari People) and Robin Boddington & Ors (Wajarri Elders)/Giralia Resources NL, NNTT WO01/179 & WO01/180, Hon C J Sumner, 8 March 2002.  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.

The Evidence

1. The Government party provided evidence which establishes that the underlying land tenure of the proposed tenement is unallocated Crown land.  The Government party advised that there are no Aboriginal communities on or in the vicinity of that land and produced a search of the Aboriginal Sites Register which revealed there are no sites registered under the provisions of the Aboriginal Heritage Act 1972.

2. The native title party lodged affidavits of Billy Atkins (a member of the claim group) Sean Mark Calderwood, Anthropologist with the Ngaanyatjarra Land Council and Dr Lee Sackett, Anthropologist.  Annexures included a 1:250,000 topographic map with markings of the tenement and the Department of Indigenous Affairs sites in the vicinity and a copy of Windich and Karri Karri Pool site records.  None of the evidence from the native title party was contested and I accept it for the purposes of this determination.

Affidavit of Billy Atkins

‘I, Billy Atkins c/- of Suite 2, 2^nd Floor, 8 Victoria Avenue, Perth in the State of Western Australia, being duly sworn and make oath as follows:

1.I am a member of the Wiluna native title claim group and believe in a system of traditions, laws and customs that relates to the Wiluna People.

2.I speak for the country the subject of exploration licence 69/1571 as my father was born in the vicinity. As such, the laws and customs require me to speak for this area and this fact is acknowledged by the other members of the claimant group.

3.My responsibilities for the area include:

a)   Educating my people about the importance of this area for the Wiluna People;

b)   Performing ceremonies at regular intervals, which includes singing songs for it;

c)   Preventing damage to the area; and

d)   Physically maintaining the soaks and rock holes.

4.The tenement falls within the area of Lake Nabberu, which is an area of particular significance to the group as it represents the dreaming travels of the Wati Marlu and Wati Kutjara. These are both associated with men’s business. My people believe dreaming tracks are an important part of a claim area because they tell the story of how the land was created by the spiritual travels of the ancestral beings.

5.The Karri Karri Pool and Windich Springs sites, both of which are registered with the Department of Indigenous Affairs, are sites associated with the Wati Marlu and Wait Kutjara. The Wiluna People believe that they are sites of significance. There are many other sites of significance of Wati Kutjara and Wati Marlu in this area. For example, the Lake Nabberu system contains Warru Warru trees that are specifically used for making spears; I believe that the Wati Katjara left these trees on their travels.

6.If any site or dreaming track is desecrated there could be serious consequences for me and other traditional owners of the area.

7.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 the site by another traditional owner; or

c.    physical damage to the site.

8.To determine which parts within a dreaming track are important requires a physical inspection, as it is difficult to say exactly where these areas are from a map.

9.Depending on the particular story associated with a dreaming track, differing obligations arise between the people of the Western Desert. That is to say that some dreaming tracks will be the responsibility of the Wiluna People and other tracks will, in addition to being the responsibility of the Wiluna People, extend beyond the us and be the responsibility of other people within the Western Desert. Wati Marlu and Wati Katjara dreaming tracks are particularly significant as these tracks extend over an area known as the Western Desert cultural bloc and are the responsibility of other people as well as the Wiluna People.

10.In accordance with the traditions, laws and customs of the Wiluna People no person is able to disturb the landscape of a dreaming track unless they have first spoken to me and other traditional owners and have indicated the nature and whereabouts of the activities. Depending upon the nature and whereabouts of the activities, some activities may be allowed to proceed in some areas but not in others. The matter is very much open for negotiation.

11.The Cunyu Pastoralist has made it clear to the Wiluna People on a number of occasions that we are not welcome on the pastoral lease to continue our traditional laws and customs and this has had a detrimental effect on me, my family and other traditional owners.’

Affidavit of Sean Mark Calderwood

‘I, Sean Mark Calderwood, of Suite 2, 2^nd Floor, 8 Victoria Avenue, Perth in the State of Western Australia, Anthropologist/Project Officer, being duly sworn and make oath as follows:

1.I am an Anthropologist with the Native Title Unit of Ngaanyatjarra Council and work primarily in the Wiluna, Birrilliburu and Martu native title claims within the Ngaanyatjarra Council representative area.

2.I graduated with an Honours Degree majoring in Anthropology from La Trobe University in Melbourne, Victoria in 1995.

3.Immediately prior to my work in the Wiluna, Birriliburu and Martu region, I was employed by Ngaanyatjarra Council as a Anthropologist/Mining Officer in the Warburton, Baker Lake, Irruntjyu Papulankatja, Cosmo Newberry, Kiwirrkurra, Ngawarr, Ngankali and Tjirrkarli Kanpa claims. I worked in this capacity for two years. My previous employment includes Land Tenure Officer/Anthropologist with the Central Land Council (1997-98) where I worked primarily in the Tanami Desert Region. Prior to this I worked as a consultant to various organizations throughout Australia in relation to native title and mining issues.

4.I base my opinions in this matter on my knowledge and understanding of the Tjukurrpa or “Dreamings” of the country in which the tenement is situated; and on my broader knowledge and understanding of Aboriginal mythology, traditional ownership and contemporary cultural concerns in the Western Desert cultural bloc and adjacent areas.

5.Exploration licence 69/1571 is situated in country where the sites and dreaming tracks of two particularly significant Tjukurrpa, Marlu (Kangaroo) and Wati Kutjara (Two Goanna Men) are located. The Wati Marlu (Kangaroo man) the creative being of the Marlu Tjukurrpa is credited with establishing much of the “Law” particularly as it relates to male initiation. Wati Kutjara is also associated with male initiatory rites and aspects of the mythology of Marlu and Wati Kutjara, and even some site names and locations, are restricted to senior initiated men and are considered ngurlu¸ or dangerous, to all but this category of person. These Tjukurrpa are well known to senior initiated men throughout the region and are of regional cultural significance as they connect the Wiluna area with other areas and communities in the Western Desert.

6.I have been unable to formally conduct a site survey of the area with the Traditional Owners due to the pastoralist’s attitude towards the Wiluna native title claimants. He has made it clear to them in the past that they are not welcome to enter his property and as such, I have had to rely on advice from the traditional owners of the mythology and cultural features within the tenement area.

7.The entire Lake Nabberu system including Lakes within and adjacent to this tenement are associated with the Marlu Tjukurrpa, or dreaming, and some aspects of the mythology, names of sites and location of sites are culturally restricted to a certain category of person.

8.There are a number of Department of Indigenous Affairs registered sites located in the vicinity of this tenement, which are part of the Wati Kutjarra and Marlu Tjurkurrpa. These include the Karri Karri Pool (1179) and Windich Springs (2116).

9.Many significant mythological sites of dreaming activity area also places where water can be found. As there are a number of drainage lines and creeks on the country where the tenement is located I consider it probable that Aboriginal sites exist within the tenement.’

Affidavit of Dr Lee Sackett

‘I, DR LEE SACKETT of 65 Hillview Crescent, Whitfield, 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 the country 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 in and around the Wiluna area.

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 people to follow for all time. Claimants today term that which they regard as the crucial fundamentals of this 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 who they are descended, and the Supernatural Beings, so-called ‘totemic beings’, from who 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 Kirnara/Moon Man, Minyma Kurrkarti/Goanna Woman, 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 the Wati Marlu/Kangaro Man Dreaming came from far to the north, then moved from west to east along a line of sites running across the width of the claim area. As he did, the Being, among other things, in part created the broad and lengthy complex of claypans that is Lake Nabberu. From the claim area, Wati Marlu made his way to country near Warburton, then turned southwest to lands near the Great Australian Bight, before again heading northward to his ultimate ‘end’ at the site of Pilpirr (to the east of Cosmo Newbery).

8.At the same time, the Wati Katjara/Two (Goanna) Men Dreaming travelled down a line of sites that later become the southern section of Canning Stock Route (that is the Beings left some the waters that later became Stock Route wells), then moved in an easterly direction across the claim area, and the desert beyond it.

9.There are at least 42 Wati Marlu and 35 Wati Katjara Dreaming places in the claim area. Some of these are sties, mainly waters, left by the beings; some are instantiations, in the form of hills, boulders, tress and the like, of the Beings themselves.

10.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 site are not matters for Wiluna people, or any Western Desert people, to decide wholly on their own.

11.Today, people at such widely separated spots as Jigalong, Wiluna, Waburton, Tjuntjuntjara and Cosmo Newbery “look after” Wati Marlu sites in their areas. Similarly, people at such places as Jigalong, Wiluna, Kanpa, Tjirrkarli, Blackstone, Wingellina and Docker River “look after” Wati Kutjara sites. That is, people at these widely separated spots are linked and inter-linked in shared and counter-balancing responsibilities to the Wati Marlu and Wati Kutjara Dreamings.

12.As it happens, both the Wati Marlu and Wati Kutjara Dreamings are closely associated with aspects of male initiatory rights and practices, and thus are well known in areas beyond those of the Beings’ immediate travels. The Dreamings’ links to male initiation mean certain aspects of the Wati Marlu and Wati Kutjara stories are ngurlu (‘dangerous to or for women and the uninitiated’) and hence cannot be publicly related. In fact, the very existence of some Wati Marlu and Wati Kutjara sites is known only to initiated men.’

Carrying on of community or social activities (s 237 (a))

1. There is no specific evidence of community or social activities carried on by members of the native title party claim group on the area of the exploration licence. There is a possible inference from the evidence relating to sites of some activities of a ceremonial or law business kind being carried out. However, there is no evidence of use of the area for traditional pursuits such as camping, hunting or the gathering of bush tucker, which is usually a common feature of evidence from native title parties under s 237(a). One reason for this may be the hostility of the adjoining pastoral lessee who discourages entry to the area. I infer that the pastoral lease adjoins the vacant Crown land over which the exploration licence is to be granted. In my view the evidence of community or social activities in the area of the tenement is too indefinite to sustain the objection.

Area or sites of particular significance (s 237(b))

1. There is evidence that the area of Lake Nabberu where the tenement is situated is an area of particular significance to the native title party (Billy Atkins’ affidavit para 4).  The significance is because of its relationship to the dreaming (Tjukurrpa) of the Wati Marlu (Kangaroo) and Marti Kutjara (Two Goanna Men).  Both these Tjukurrpa are of great significance to the Western Desert cultural bloc of which the Wiluna claimants are part.  There are also sites related to these dreamings on the tenement area and in its vicinity (Billy Atkins’ affidavit para 5).  Sean Calderwood, an anthropologist with experience of Western Desert Indigenous Peoples at paras 4 & 5 of his affidavit supports Mr Atkins’ evidence.  Both Tjurkurrpa are associated with male initiations and some site names and locations are restricted to senior initiated men and considered dangerous to other persons.

1. Although a formal site survey has not been carried out (due it is said to the pastoralists’ unwelcoming attitude), Mr Calderwood has formed his opinion from advice from traditional owners.  He says (para 7) that the entire Lake Nabberu system including Lakes within and adjacent to this tenement are associated with the Marlu dreaming and that cultural restrictions apply to the stories and names and locations of sites.  Although there are no sites on the Register kept by the Department of Indigenous Affairs there are a number of registered sites to the north (eg. Karri Karri Pool and Windich Springs).  While these sites are some 15 kilometres from the exploration licence area they are also part of the Wati Marlu and Wati Kutjarra dreaming.  The evidence of Dr Sackett confirms the importance of the Wati Marlu or Wati Katjarra dreaming and associated sites to the Wiluna Group claimants and other claimants from the Western Desert.

2. I find that the area of the tenement (or at least a significant part of it) is an area of particular significance to the native title party in accordance with their traditions and that there are sites of that kind found within it.

3. I must now consider whether the presumption of regularity and the protective provisions and procedures of the Aboriginal Heritage Act 1972 (WA) are sufficient to ensure that it is unlikely (there is no real risk) of the area or sites being interfered with. The Tribunal has often but not necessarily held this to be the case. Where an area is rich in sites or the whole area is of particular significance, the Tribunal has found that the Aboriginal Heritage Act is inadequate to provide the necessary protection without negotiations with the native title party.  (See cases cited in Walley (WO01/179 and WO01/180) at [51].)

The grantee party has provided no evidence of what it intends to do to protect the areas or sites identified by the evidence. A number of options are discussed in the Government party’s Guidelines for Aboriginal Consultation by Mineral and Petroleum Exploration, which is sent to each licensee but there is no evidence that the grantee party has considered these in the circumstances of the grant of this tenement. While the Tribunal can presume that the grantee party will obey the law I consider that on the facts of this case including the practical difficulties of identifying areas or sites to be avoided that there is a real risk of interference with them thus leading to the necessity for the normal negotiations between the parties provided for in s 31 of the Act.

Major disturbance (s 237(c))

1. In view of my findings under s 237(b) it is not necessary to consider this issue.

Determination

1. The determination of the Tribunal is that the grant of exploration licence 69/1571 to Giralia Resources NL is not an act attracting the expedited procedure.

Hon C J Sumner
Deputy President
8 March 2002