Wobby Parker and Others on behalf of the Martu Idja Banyjima People/ Western Australia/ Pilbara Iron Ore Pty Ltd
[2006] NNTTA 148
•7 November 2006
NATIONAL NATIVE TITLE TRIBUNAL
Wobby Parker and Others on behalf of the Martu Idja Banyjima People/ Western Australia/ Pilbara Iron Ore Pty Ltd, [2006] NNTTA 148 (7 November 2006)
Application Nos: WO06/145
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into expedited procedure objection applications
Wobby Parker and Others on behalf of the Martu Idja Banyjima People (WC98/62) (native title party)
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The State of Western Australia (Government party)
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Pilbara Iron Ore Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O'Dea, Member
Place: Perth
Date: 7 November 2006
Catchwords: Native title — future act — proposed grant of exploration licence — expedited procedure objection application — whether act likely to interfere directly with the carrying on of community or social activities — whether act likely to interfere with sites of particular significance — whether act likely to cause major disturbance to land or waters
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 109, 155, 237
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Mining Act 1978 (WA), ss 20(5), 63
Cases:Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), The Hon C J Sumner
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/Ashburton Minerals Ltd/Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Member Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, NNTT WO03/925, [2006] NNTTA 133 (5 October 2006), Member John Sosso
The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, NNTT WO04/315 and WF05/48, [2006] NNTTA 74 (13 June 2006), Hon C J Sumner
Smith v Western Australia [2001] FCA 19 (2001); 108 FCR 442
Walley v Western Australia [2002] NNTTA 24 (2002); 169 FLR 437
Western Australia v Smith [2000] NNTTA 239 (2000); 163 FLR 32
Representative of the Mr Greg McIntyre SC
native title party: Mr Paul Sheiner, Christensen Vaughan Lawyers
Representatives of the Ms Christine Lovitt, Blakiston and Crabb
grantee party: Mr Peter Davies, Consolidated Minerals Pty Ltd
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Mr Greg Abbott, Department of Industry and Resources
REASONS FOR DETERMINATION
On 1 March 2006, the government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence E47/1235 (‘the proposed licence’) to Pilbara Iron Ore Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure (that is one which can be done without the normal negotiations required by s 31 of the Act).
The proposed licence comprises an area of 34.73 square kilometres and is located 73 kilometres north westerly of Newman in the Shire of East Pilbara. 25.9 per cent of the proposed licence falls within the area of two registered and overlapping claims, the Martu Idja Banyjima People (WC98/62) and the Innawonga and Bunjima People (WC96/61). The remaining 74.1 per cent of the proposed licence falls within the registered claim of the Nyiyaparli (WC05/6). The proposed licence therefore comprises an area which is covered by the Martu Idja Banyjima claim and the Innawonga and Bunjima People’s claim on the one hand, and a larger area which is covered by only the Nyiyaparli claim on the other hand.
On 21 April 2006, an objection to the expedited procedure statement was lodged with the Tribunal by Wobby Parker, Maitland Parker and Others on behalf of the Martu Idja Banyjima People (WC98/62) ('the native title party'). No objections were lodged on behalf of the Nyiyaparli (WC05/6) or Innawonga and Bunjima People (WC96/61).
In accordance with standard practice in expedited procedure matters, the Tribunal gave directions to the parties to provide contentions and documents ('submissions') for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement by consent in relation to the objection.
At the first preliminary conference on 30 May 2006, the grantee party representative advised that he had undertaken several discussions with the native title party representative. The grantee party stated it was willing to execute a Regional Standard Heritage Agreement ('RSHA') for the Pilbara/Geraldton Region in favour of the native title party, however the native title party had proposed its Alternative Heritage Agreement ('AHA'), which was not acceptable to the grantee party. The grantee and the Government parties requested that the matter proceed to inquiry and the Tribunal amended the directions accordingly.
The Government party lodged its submissions by 26 July 2006. Following requests from the native title party, and with the consent of the grantee and Government parties, the Tribunal amended directions three times to allow sufficient time for the native title party to lodge its submissions and for the grantee party to respond to the submissions if it considered it necessary. In accordance with the final amended directions, submissions from the native title party were received on 18 September 2006.
On 22 September 2006, I convened a Listing Hearing at which representatives of all parties were present. The representative for the native title party indicated that, subject to the health of the native title party claimants, he was instructed to request a hearing on country. The grantee and Government parties did not oppose the request, however the Government party indicated a preference for the inquiry to be determined 'on the papers'. The grantee party, due to lodge its submissions by 25 September 2006, requested an extension until 29 September. This request was not opposed by any other party.
Accordingly I directed that by 29 September 2006 the grantee party lodge its submissions and the native title party lodge additional material outlining why it sought an on country hearing, who would give evidence, the nature of the evidence to be adducted and proposed dates. I also directed that a further hearing would be held on 9 October 2006.
The grantee party lodged it submissions on the due date. The native title party lodged its additional material on 4 October 2006.
On 9 October 2006, I convened a Listing Hearing at which all parties were represented and the grantee party's submissions and native title party's additional material were considered. The native title party's evidence to be presented at a proposed on country hearing related to the question of the existence of sites of significance within the area of the proposed licence, particularly in the Weeli Wolli Creek area. The grantee party's submissions did not dispute the native title party's contention that there are sites of significance within the proposed licence area. In these circumstances Mr McIntyre for the native title party did not press the request for an on-country hearing. I am satisfied that the inquiry can be appropriately conducted on the papers.
On 12 October 2006, the native title party sought leave to lodge a further submission. Following consultation with the parties I directed that the native party lodge its further submission by 16 October 2006, the grantee or Government parties lodge responses (if necessary) by 20 October 2006 and there be no further right of reply without leave.
The native title party lodged its further submission by the due date. No responses were lodged by the grantee and Government parties.
Legal principles
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.’
In Walley v Western Australia [2002] NNTTA 24 (2002) 169 FLR 437 ('Walley'), the Tribunal considered the applicable legal principles (at [7]–[23]) and the nature of exploration and prospecting licences and conditions to be imposed including what activities are permitted by it and what limits are placed on those activities (at [24]–[35]). I adopt those findings for the purposes of this inquiry. With respect to issues arising under s 237(b) I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31–35] and the cases cited therein.
Evidence in relation to the proposed act
The Tribunal has before it the following submissions in relation to the proposed licence:
Government party
• Land tenure search, Land Claims Mapping Unit, 22 June 2006
• Department of Indigenous Affairs ('DIA') Register of Aboriginal Sites search, 11 July 2006
• Department of Industry and Resources ('DoIR') Quick Appraisal, 11 July 2006
• Form 21 application for E47/1235 under the Mining Act 1973 (WA)
• DoIR Tenement Endorsement and Conditions Extract, 11 July 2006
• DoIR maps
• Statement of Contentions, 21 July 2006
Native title party
• Letter from Anthropologist Nicolas Green, 13 August 2006 ('Anthropological Report #1')
• Statement of Contentions, 30 August 2006
• Affidavit of Timothy Parker, 15 September 2006
• "Anthropological Comments on the Aboriginal Heritage Implications of Proposed Exploration Activities in Mining Tenement E47/1235", Dr Edward McDonald, September 2006 ('Anthropological Report #2')
• Outline of Evidence of the Native Title Party, 4 October 2006
• Submission in Response to Contentions of the Grantee Party, 16 October 2006
Grantee party
• Statement of Contentions, 28 September 2006
• Witness Statement of Peter John Davies, Tenements Manager, 28 September 2006
• Email from Christine Lovitt (grantee party representative) to all parties and the Tribunal, 5 October 2006
In considering the status of each of the documents that comprise the native title party's submissions, I have regard to s 109(3) of the Act and previous considerations made by the Tribunal. In summary, the Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence (s 109(3)) and can rely upon secondary material such as reports by anthropological experts to make its conclusions. Notwithstanding this, the Tribunal has recently considered the question of evidence and concluded, correctly in my view, that "the very best evidence in such matters comes from members of the claim group who have the relevant authority and knowledge of the particular area or site.... [and that] detailed contentions prepared by legal practitioners or “experts” can never replace the strength of direct evidence from the persons who assert native title over the relevant land and waters" (see Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, NNTT WO03/925, [2006] NNTTA 133 (5 October 2006), Member John Sosso, at [17]–[18]) (‘Mineralogy’). In this matter, the native title party submissions include the affidavit of Timothy Parker dated 15 September 2006, Anthropological Report #1 by Mr Nicholas Green and Anthropological Report #2 by Dr Edward McDonald. In his affidavit, Mr Parker confirms that he is a member of the native title party claim group, an initiated Banyjima man under the native title party's laws and customs and has a right to speak for the country encompassed by the proposed licence. On the basis of the statements contained in the affidavit, which are uncontested, I am satisfied that Mr Parker has the requisite authority to speak on behalf of the native title party and properly reflects the traditions and knowledge of the native title claimants concerning the area of the proposed licence. I also accept the evidence outlined in Anthropological Reports #1 and #2 compiled by Mr Nicholas Green and Dr Edward McDonald, which is also uncontested, insofar as it is supported by Mr Parker's affidavit.
Government party Quick Appraisal documentation establishes the underlying land tenure of the proposed licence to be as follows:
Marillana pastoral lease 3114/984 at 69.3 per cent (vested in BHP Billiton Minerals Pty Ltd, Itochu Minerals and Energy Australia Pty Ltd, Mitsui-Itochu Iron Pty Ltd and Pilbara Pastoral Co Pty Ltd)
Vacant Crown land at 30.7 per cent
Department of Planning and Infrastructure File Notation Area 5145 (railway corridor land) at 44.3 per cent
Conservation and Land Management File Notation Area 532 at 30.7 per cent
The documentation notes there are no Aboriginal communities in the vicinity of the proposed licence.
The Quick Appraisal documentation also indicates that, as of 11 July 2006, two active amalgamation mining applications encroach upon the proposed licence at 10.5 per cent and 17.8 per cent. Four 'dead' tenements are recorded within the proposed licence area.
Temporary Reserve 70/1643 covering 100 per cent of the proposed licence. Active from 1959 until forfeited in 1964. DoIR reported that the reserve "was created as a Ministerial Reserve for Manganese on 18/08/1958 by the Minister for Mines. This prevented mining tenements from having Manganese included in the title if any applications for mining tenements were lodged and/or granted within the TR. It was created at the time to prevent speculative “position” pegging of Manganese deposits to the detriment of the working of those deposits in a satisfactory way" (email 12 October 2006)
Exploration licence 47/9 covering 10.5 per cent of the proposed licence. Active from 1982 until surrendered in 1997.
Exploration licence 47/11 covering 62.4 per cent of the proposed licence area. Active from 1982 until surrendered in 1999.
Exploration licence 47/621 covering 9.8 per cent of the proposed licence area. Active from 1992 until surrendered in 1995.
The grant of the proposed licence will be subject to the standard conditions imposed on the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1–4). The following additional conditions will be imposed.
To provide for notification to the pastoral lessee, of the grant of the licences and of certain exploration activities (conditions 5–6).
No interference with Geodetic Survey Station and mining within 15 metres and being confined to below a depth of 15 metres from the natural surface (condition 7).
No interference with the use of the Aerial Landing Ground (condition 8).
Rail Corridor Land: No mining within 30 metres. Rights of ingress and egress at all times preserved. No explosives to be stored or used within 150 metres without prior written approval of the State Mining Engineer. No mining below or interference with the drainage pattern, no parking, storage or movement of equipment, no drilling excavating, erecting or depositing any pit, well, pavement, foundation, building or other structure within the safety Zone without prior written approval of the State Mining Engineer. Such further conditions as may from time to time be imposed by the Minister for State Development (conditions 9–13).
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the licence for their breach) will be imposed:
The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder.
The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Searches of the DIA Register of Aboriginal Heritage Sites provided by both the Government party and the native title party reveal 21 registered Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) located within the proposed licence area — seven ethnographic and 14 archaeological sites. Four open access and two closed access sites are described as ceremonial/mythological, one is described as a closed access campsite, one as a closed access artefact scatter and the remaining 13 open access engravings and artefact scatters.
The native title party's Anthropological Report #2 notes:
"The majority of the sites were recorded in early heritage assessment, including surveys undertaken by Clarke and Smith (1982a & b) and O'Connor and Veth (1984), in addition to archaeological surveys by Quartermaine, Harris and others. A brief description of each of these sites follows:
Site ID 11287/P00899 Weeli Wolli Spring: An ethnographic site (ceremonial, mythological) that is listed on the Permanent Register (Closed access)
Site ID 7320/P05615 Kundimarra: Ethnographic (ceremonial/mythological and archaeological (engravings) that is listed on the Permanent Register and located in the vicinity of Weeli Wolli Creek (Open access)
Site ID 7319/P05614 Roundtop Hill: An ethnographic (mythological) site that is listed on the Permanent Register. The site is located to the east of Weeli Wolli which covers an extensive area (Open access)
Site ID 7321/P05616 Millawalinya: an ethnographic site (ceremonial) that is listed on the Permanent Register. This site and is located approximately 3.5km northwest of Weeli Wolli Spring which covers an extensive area (Open access)
Site ID 9956/P02234 Yandicoogina 25: An ethnographic site (mythological) that listed on the listed on the Permanent Register (sic). The site is located in the vicinity of Weeli Wolli Creek and possibly 8km north of HD-Mt Newman link. Contact: Slim Parker[closed access]
Site ID 9958/P02236 Yandicoogina 27: An ethnographic site (ceremonial mythological) listed on the listed on the Permanent Register (sic). The site is located in vicinity of Weeli Wolli Creek and Springs (Closed access).
Site ID 9957/P02235 Yandicoogina 26: is a campsite listed on the Interim Register and is located in vicinity of Weeli Wolli Creek (Closed access).[sic -open access]
Site ID 8794/P03719 Weeli Wolli: Engravings listed on the Permanent Register and is located in close proximity to Weeli Wolli Creek (Open access). There was no further information available in the site file other than the site was recorded by Ross Johnston and Stan Aspinal in 1978.
Site ID 9996/P02166 Weeli Wolli Creek 01: An Artefact scatter listed on the Permanent Register as is it was assessed as being of major archaeological significance (Open access).
Site ID 9997/P02167 Weeli Wolli Creek 02: Quarry with artefact scatter listed on the Permanent Register. The site is located approximately 3.5km north of Weeli Wolli Spring and 1km east of Weeli Wolli Creek (Open access).
Site ID 9998/P02168 Weeli Wolli Creek 03: An Artefact scatter listed on the Permanent Register and is located on raised ground near a tributary of Weeli Wolli Creek, approximately 1km east of Weeli Wolli Creek (Open access).
Site ID 9999/P02169 Weeli Wolli Creek 04: An Artefact scatter with an associated grinding patch is listed on the Permanent Register. The site is located approximately 4.25km northeast of Weeli Wolli Spring around base of granite rocks at the end of open ground (Open access).
Site ID 10000/P02170 Weeli Wolli Creek 05: Artefact scatter listed on the Interim Register and is located approximately 4.75km northeast of Weeli Wolli Springs (Open access).
Site ID 10001/P02171 Weeli Wolli Creek 06: An Artefact scatter listed on the Permanent Register and is assessed as being of important archaeological significance. The site is located on an alluvial terrace adjacent to a gully and Weeli Wolli Creek on the track to Cork Tree (Open access).
Site ID 10002/P02172 Weeli Wolli Creek 07: An Artefact scalier and rockshelter listed on the Interim Register as it has been assessed as being of minor significance and contains a rockshelter containing [sic]. It is located in gully leading east on an eastern tributary of Weeli Wolli Creek approximately 500m east of Weeli Wolli Creek (Open access).
Site ID 10003/P02173 Weeli Wolli Creek 08: An archaeological site (engravings, and artefacts scatter) listed on the Permanent Register (Open access).
Site ID 110006/P02176 Weeli Woili Creek 09: an artefact scatter listed in Stored Data as it is assessed as being of minor archaeological significance. The indications are of ephemeral usage rather than long-term occupation. The site is located in the vicinity of Weeli Wolli Creek (Open access).
Site ID 10007/P02177 Weeli Wolli Creek 10: an artefact scatter listed in Stored Data as it is assessed as being of minor archaeological significance (Open access).
Site ID 10008/P02178 Weeli Wolli Creek 11: An Artefact scatter listed on the Interim Register. The site of minor significance as it contains a sparse artefact scatter. The site is located on an iron ore outcrop overlooking Weeli Wolli Creek (west side) and approximately 2.5km north of Weeli Wolli Creek Springs (Open access).
Site ID 10109/P02074 Weeli Wolli: An archaeological site (engravings, artefact scatter and grinding patch which is listed on the Interim Register (Open access).
Site ID 18423 Y99-01: an archaeological site (artefact scatter) listed on the Interim Register (Closed Access)."
On 9 and 10 October 2006, a search of the DIA Register of Sites was undertaken by the Tribunal for all registered sites within the claim areas of the native title party (797 sites), the Innawonga and Bunjima People (970 sites) and the Nyiyaparli (511 sites). The searches were then compared against the searches undertaken by the native title and Government parties for sites within the proposed licence. The comparison indicates that 7 of the 21 sites within the proposed licence appear to be within the claim areas of the native title party and the Innawonga and Bunjima People, notably Weeli Wolli Spring (Site ID 11287), Weeli Wolli Creek 10 and 11 (Site IDs 10007 and 10008), Yandicoogina 25, 26 and 27 (Site IDs 9956-9958) and Y99–01 (Site ID 18423). All of the 21 sites appear to be located within the Nyiyaparli claim area. This apparent anomaly occurs because the seven sites which are located within the Martu Idja Banyjima and Innawonga and Bunjima claim all straddled the boundary with the Nyiyaparli claim. In other words, all the sites specified above are located within all three claims, and the remaining 14 are within Nyiyaparli only.
The native title party submissions include the affidavit of Timothy Parker dated 15 September 2006 made in the following terms:
"I, Timothy Parker of Youngaleena Community say that:
1.I am a member of the Martu Idja Banyjima Native Title Claim Group (“Fortescue Banyjima People’).
2.I am an initiated Banyjima man under our laws and customs.
3.I have been shown the map of the proposed tenement EL 47/1235.
4.This tenement covers the country for the Fortescue Banyjima People. Under our laws and customs my family, are responsible for looking after this country.
5.The tenement area covers the Weeli Wolli Creek.
6.We the Fortescue Banyjima People together with the Nyiyarparli people have, through our old people, stories for Weeli Wolli. Some of these stories we can’t talk about. It is part of our songs for ceremony. It is from the Dreamtime when things went up in the sky and came down again.
7.I have been taught about Weeli Wolli by my elders in the Banyjima and Nyiyarparli language. The language is really old and it is very hard to try and translate it into English. The stories have been passed down from our father and his father and grandfather before him.
8.All Fortescue Banyjima people and Nyiyarparli elders have responsibility for the law and ceremony for Weeli Wolli. Under our law and songs it is connected to other country which is looked after by other Aboriginal people.
9.Weeli Wolli is where the Rainbow Serpent came up in the Dreamtime from the desert to the east. He is in the water that flows from the Springs. He goes north along the Creek underground and comes up at a place in the Fortescue Marsh. He travels from the river to Millstream.
10.The Springs are very special and sacred to us. It’s dangerous to go there and nobody can swim in the water. The stories for the Springs are restricted under our law and culture and I can’t speak about them to people who are not initiated under our law and custom.
11.Under our laws and customs you can't interfere with that water from the Springs that flows through Weeli Wolli. Drilling down into that creek would interfere with that Rainbow Serpent and the Dreaming.
12.We the Fortescue Banyjima people have always looked after Weeli Wolli with the Nyiyarparli people. We held meetings and ceremonies in the Creek bed. To this day we hunt camp and travel along the creek."
Maps of the proposed licence provided by the Government Party and the Tribunal's Geospatial Unit show Weeli Wolli Creek runs directly through the middle of the proposed licence in a northeast direction and to Fortescue Marsh or River some 60 kilometres to the north east. The DIA Register of sites map and additional mapping of DIA sites by the Tribunal's Geospatial Unit indicates a series of interconnecting sites which cover approximately 50 per cent of the proposed licence. The mapped boundaries of a number of the sites encompass relatively large areas. The Tribunal is aware that the general location of registered sites is known, but the specific location can be, depending on the nature and significance of the site, contained within an area ranging up to 10 square kilometres.
The grantee party's contentions are summarised below:
2.The Grantee Party adopts paragraphs 2 to 26 of the Statement of Contentions of the Government Party dated 21 July .....
4.The Exploration Licence also encroaches upon the Nyiyaparli Claim (WC06/006) and the Innawonga Bunjima Claim (WC96/061).
5.The Grantee Party entered into a Mining Agreement with the Nyiyaparli People on 11 August 2005 which Agreement contains provisions relating to the conduct of aboriginal heritage surveys and includes an Aboriginal Heritage Protocol ("Alternative Heritage Agreement") ....
5[sic]The Grantee Party also entered into a Contract for Services in Relation to Exploration with the Innawonga, Bunjima and Niapaili Native Title Applicants on 5 October 2005, being the standard alternative heritage agreement which applicants for exploration tenements are required to sign by the Pilbara Native Title Service.
6.The Grantee Party is aware of its obligations under the Aboriginal Heritage Act 1972 and, further, does not intend to carry out any ground disturbing activities on the Exploration Licence (if granted) without first having carried out an aboriginal heritage survey in accordance with the procedures outlined in the Alternative Heritage Agreement referred to in paragraph 5 above in order to avoid any interference with sites of significance in the vicinity of the Weeli Wolli creek or elsewhere on the land the subject of the Exploration Licence."
The grantee party asserts in its contentions that it has entered into heritage agreements with the Nyiyaparli and Innawonga Bunjima People and will carry out an Aboriginal heritage survey "in order to avoid any interference with sites of significance in the vicinity of the Weeli Wolli Creek or elsewhere on the land the subject of the Exploration Licence" (paragraph 6).
Furthermore, at the hearing of 9 October 2006, the grantee party confirmed that it was willing to enter into a RSHA with the native title party and abide by the terms of that agreement. The native title party's representatives advised at both hearings that the RSHA is not a satisfactory agreement to the native title party.
The native title party's Submissions in Response to Contentions of the Grantee Party, dated 16 October 2006 notes at paragraph three:
"3.Although it is not referred to in its Statement of Contentions, the Grantee Party has recently made a commitment to enter into a Standard Heritage Agreement with the objector (see email dated 5 October from Grantee Party and statements made at directions hearing on 9 October 2006). In the event of a determination that the expedited procedure applies to the grant, the Grantee will keep the offer of an RSHA, amended to reflect the fact that the objector conducts its own heritage survey (and not the representative body, open to the Objectors for 28 days."
I will now consider the above evidence as it relates to s 237 of the Act.
Community or social activities (s 237(a))
For an objection to be upheld the evidence must show 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 Government party relies on relevant aspects of its regulatory regime under the Mining Act, including the provisions of s 63 and conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned.
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 an exploration tenement is likely to further affect such activities (Smith v Western Australia [2001] FCA 19 (2001) 108 FCR 442 at [26]–[28]; Walley at [12]). However, each matter must be evaluated on its merits, taking account of the particular facts.
In this matter, there is limited historical and current mining and exploration activity which could affect past and current community and social activities. Despite any potential restrictions, the evidence of Mr Parker suggests that the native title party have enjoyed access to the area up to the current day: at paragraph 12 of his affidavit, Mr Parker deposes that "We the Fortescue Banjyima people have always looked after Weeli Wolli with the Nyiaparlii people. We held meetings and ceremonies in the [Weeli Wolli] Creek bed. To this day we hunt camp and travel along the creek". Mr Green asserts that "I have been informed that Aboriginal people continue to visit, camp and utilise the resources of the Wirla Warli" (Anthropological Report #1, page 2). There is also one closed access registered site described as a campsite (Yandicoogina 26 – Site ID 9957).
The grant of the proposed licence will certainly have an effect on the native title party's current ability to access the area, however, the Tribunal must also have regard to the fact that access to the area would be only limited and temporary while exploration is taking place. Often, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely to directly interfere with these activities except in an incidental and insubstantial way.
There are no established communities within or near the proposed licence area, and despite the assertion by Mr Parker and Mr Green that the native title party hunt and camp along the Weeli Wolli Creek, there are no details given as to the duration, frequency or attendees of these hunting and camping activities. In my view, there is insufficient evidence of the nature and intensity of the community and social activities to support the conclusion that community and social activities are likely to be interfered with by the grant of the proposed licence and exploration activities undertaken.
Sites of particular significance (s 237(b))
The issue the Tribunal is required to determine 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 area of the proposed licence is rich in sites according to the Register kept under the Aboriginal Heritage Act, but this does not mean there may not be other sites or areas of particular significance over the area of the proposed licence or in the vicinity. 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. The Aboriginal Heritage Act protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the Aboriginal Heritage Act to contend that the grant of the proposed tenement is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the Aboriginal Heritage Act has been described on numerous occasions by the Tribunal, more recently in Maitland Parker at [31]–[38], [40]–[41].While the Tribunal has usually found that the site protection regime based on the Aboriginal Heritage Act is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts. See Mineralogy at [19]–[21] and [26]–28]; Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner at [33]–[34] ('Banjo Wurrunmurra'); The Miriuwung Gajerrong #1 (Native Title Prescribed Body Corporation) Aboriginal Corporation/Western Australia/Seaward Holdings Pty Ltd, NNTT WO04/315 and WF05/48, [2006] NNTTA 74 (13 June 2006), Hon C J Sumner at [45]–[46] (' Miriuwung Gajerrong #1'); Dora Sharpe and Others on behalf of the Gooniyandi native title claimants/ Ashburton Minerals Ltd/ Ripplesea Pty Ltd/Western Australia, NNTT WO02/451, [2004] NNTTA 31 (7 May 2004), Daniel O'Dea, at [8] and [43]–[45] (' Dora Sharpe') ).
The native title party's contention is that Weeli Wolli or "Wirla Warli is a site complex and a central feature of the cultural landscape through its interconnections with habitation, ceremonial and mythological sites" (paragraph 5). The contention is uncontested and is supported by the Anthropological Reports #1 and #2, the DIA Register and Mr Parker's affidavit. Dr McDonald notes that the DIA Register search shows "seven are 'ethnographic sites'; that is, sites of contemporary significance that are known of, and reported on, by members of the Aboriginal community.... A number of the ethnographic sites are recorded as covering extensive areas". Dr McDonald also states 'there are grounds for suggesting that the creek in its entirety should be listed. Specifically, the Thurru or Warlu [rainbow serpent] which is said to inhabit the Springs, ... is said to travel down the creek to the marshes on the Fortescue River" (Anthropological Report #2, pages 3 and 8). More importantly, these assertions are supported by Mr Parker himself who notes in his affidavit that "Under our law and songs it [the Weeli Wolli area] is connected to other country which is looked after by other Aboriginal people ..... We the Fortescue Banyjima people have always looked after Weeli Wolli with the Nyiyarparli people. We held meetings and ceremonies in the Creek bed. To this day we hunt camp and travel along the creek" (paragraphs 8 and 12) and "Weeli Wolli is where the Rainbow Serpent came up in the Dreamtime from the desert to the east. He is in the water that flows from the Springs. He goes north along the Creek underground and comes up at a place in the Fortescue Marsh." (paragraph 9). On the basis of the above uncontested evidence, I accept that Weeli Wolli Creek and its surrounds, from Weeli Wolli Spring to the northern boundary of the proposed licence, comprise an interconnected series of sites of considerable contemporary and historical significance to the native title party.
As outlined in paragraphs [21] to [25] above, there is also considerable uncontested evidence to support the conclusion that the Weelli Wolli Creek and its surrounds, from the springs to the northern boundary of the proposed licence contains sites of significance of more than ordinary significance to the native title party. Neither the Government party, nor the grantee party dispute the fact that there are sites of significance to the native title party within the area of the proposed licence and within the native title party’s claim area, nor the importance of Weelli Wolli Creek. It is clear to me from the weight of the evidence that a number of these sites are of more than ordinary significance to the native title party and can properly be characterised as sites of particular significance for the purposes of s 237(b).
Having found that there are sites of particular significance to the native title party within the area of the licence, I must now consider whether the presumption of regularity, the protective provisions and procedures of the Aboriginal Heritage Act, and any other protective arrangement that may be in place, render it unlikely that there will be interference with any areas or sites of particular significance. The grantee party has not provided an indication of its exploration intentions and the matter is therefore to be determined on the basis that the rights given under the Mining Act will be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50–51 [34]–[35]).
Mr Parker expresses concern that interference with the Weeli Wolli Springs and the Creek will cause personal and spiritual harm to the native title party, other Aboriginal people and to Europeans: "The springs are very special and sacred to us. It's dangerous to go there and nobody can swim in the water.... Under our laws and customs you can't interfere with that water from the Springs that flows through Weeli Wolli. Drilling down into that creek would interfere with that Rainbow Serpent and the Dreaming" (paragraphs 10–11). Dr McDonald also notes that the Springs "are reported to be dangerous places to those who are unfamiliar with the water snake" (Anthropological Report #2 pages 8–9). Of sites such as Weeli Wolli, Mr Green notes "I have been informed that ... Panyjima and Nyiyaparli people have a responsibility within their customary law to ensure that non-Indigenous people are not harmed by the spiritual beings that inhabit these sites. I have been informed that great care needs to be taken by people visiting the [Weeli Wolli] Creek including calling out to the spirits that inhabit the springs and the general area to ensure that they are placated" (Anthropological Report #1 page 1).
Mr Parker additionally notes that there are some cultural restrictions which prevent him fully disclosing the information that he possesses about all the sites of significance with in the area: “We…have, through our old people, stories for Weeli Wolli. Some of these stories we can’t talk about…” [paragraph 6]. Further, Mr Parker indicates at paragraph 7 that there are language barriers which may prevent him, or inhibit the identification or explanation of the significance of the sites, because of the difficulty in translating those stories from Mr Parker’s traditional language into English: “I have been taught about Weeli Wolli by my elders in the Banyjima and Nyiyarparli language. The language is really old and is very hard to try and translate into English”. Many of the matters raised in this passage of Mr Parker’s evidence have recently been addressed in the Mark Lockyer decision by Member Sosso. In particular he said, in paragraph 17:
“A member conducting an expedited procedure objection inquiry will make a predictive assessment on the strength of the material before the Tribunal. A determination is not made on the basis of bold assertions without substantiating material. This is particularly important in the context of s 237 (b). If a native title party suggests that there are areas or sites of particular significance, it should identify those sites, locate them, outline the significance of them and adduce evidence from a member of the claim group with the authority to speak on behalf of them (see generally Little v WA [2001] FCA 1706 at 77–79 per Nicholson J)”.
In this matter, the evidence which is currently relevant is the question of the likelihood that the sites of particular significance which exist in the area will be disturbed unless there is the sort of negotiations which could take place under the right to negotiate provisions of the Native Title Act. In the Lockyer matter, the major issue which Member Sosso was discussing was the location of the sites within the area. In any event, it is worth reminding native title parties in these kinds of proceedings that the standard orders made in relation to determinations of expedited procedure objections include provision for the parties to seek confidentiality orders pursuant to s 155 of the Act in relation to any evidence which they seek to adduce. In this case no such application was made. In relation to the difficulty in translation, it is certainly open to the parties to present evidence in whatever form they regards is appropriate, subject to the approval of the Tribunal in the context of s 109 of the NTA, including the provision of video evidence in language and the provision of linguistic analysis from an appropriate expert. Again, the fundamental point in this matter is that the Tribunal, when engaging in the predictive assessment process can only take cognisance of the evidence with which it is provided. I note that in each of the three Kimberley cases referred to earlier — Banjo Wurrunmurra, Miriuwung Gajerrong #1, and Dora Sharpe — the detailed evidence adduced in each of those three matters contrasts starkly with the evidence submitted by the native title party in this matter.
It is common ground that the native title party and the grantee party have attempted to negotiate an agreement but failed. Despite the grantee party's offer of a RSHA, the native title party has, through its representatives, advised that the RSHA is not satisfactory to it. The willingness of one party to enter into a heritage agreement that is unacceptable to the other is not sufficient in itself to conclude that there is not likely to be interference with sites of significance. In a number of matters the Tribunal has determined that there is likely to be interference with sites whilst noting the attempts and willingness of the grantee party to enter into a heritage agreement to deal with site identification and protection albeit not ane acceptable to the native title party, (see for example Banjo Wurrunmurra, paragraphs 33–34; Miriuwung Gajerrong #1, paragraphs 45–46; Dora Sharpe, paragraphs 8 and 43–45).
However, more importantly in this matter, there are a number of other factors which would lead me to conclude that despite the particular significance of some of the sites within the proposed licence area, it would be unlikely that there will be any interference with them in the circumstances. The reason that I have come to this conclusion is because it is uncontested that the grantee party has entered into regional standard heritage agreements with both the Innawonga and Bunjima claim and the Nyiyarparli claim. Those claim groups together cover the entirety of the proposed licence area, including all of the 21 sites that are registered under the Aboriginal Heritage Act and, necessarily, any other sites which might occur within the area of the proposed licence. Secondly, the grantee party has undertaken to enter into a modified RSHA within 28 days of the determination by the Tribunal to the effect that the expedited procedure does apply. In other words, in the event that the applicant is unsuccessful in its objection, the grantee party has given an undertaking (which has been recorded in the native title party’s supplementary contentions at paragraph 5 and which the Tribunal would expect the grantee party to honour) which would provide a third survey, conducted by the native title party of all areas within the proposed licence on which the grantee party intends to conduct exploration activities. Thirdly, as indicated in Mr Parker’s affidavit at paragraphs 6–8, the Fortescue Bunjima people, who would appear to be the foundation of the native title party’s applicant group, have always looked after these sites of particular significance along the Weeli Wolli with the Nyiyarparli people. Consequently, it would seem to me that even without a separate agreement with the Martu Idja Banyjima people, it would be unlikely that there would be any interference with these sites of significance if surveys were being conducted by the Nyiyarparli people. The cases referred to above, being Banjo Wurrunmurra, The Miriuwung Gajerrong #1and Dora Sharpe, can be clearly distinguished from this case. In those matters, there had been discussions in relation to the negotiation of a heritage protection agreement but no agreement had been reached and no understanding to enter any agreement given. The only protective mechanisms available in those situations were the presumption of regularity and Aboriginal heritage protection requirements of the state. In my view, the circumstances in this matter are considerably different. In addition to the two existing heritage agreements, it is likely that there will be a third, as between the native title party and the grantee, at the native title party’s discretion and finally, there is an acknowledgement that the responsibility for these sites has been traditionally shared, or dealt with jointly, by the native title party and the Nyiyarparli group who already have an agreement with the grantee party. In the native title party’s original contentions, they cast some doubt on the usefulness or the appropriateness of the Nyiyarparli agreement by suggesting that it had been negotiated directly with the Nyiyarparli people in the absence of their legal advisers. This contention was subsequently withdrawn in their supplementary material although they cautioned that the Tribunal, in the absence of the tabling of such document, should not draw any inference as to the adequacy of the agreement. In the circumstances, I do not believe that it is necessary to draw such an inference, one way or another. It would appear that the Nyiyarparli group, who have joint (at least) traditional responsibility for these areas, have freely entered into an agreement with the grantee party. In the circumstances, although I am unaware of the content of that agreement, I am aware of the content of the RSHA used in the Pilbara, on the basis that it is a public document. In any event, the combination of the factors that I set out above lead to the inescapable conclusion that in these circumstances, despite the existence of sites of particular significance to the native title party within the proposed licence area, that it is unlikely that there would be interference with those sites as a result of the conduct of exploration activities by the grantee party upon the grant of the proposed licence. Additionally, there is no evidence to suggest that the grantee will not act lawfully and in accordance with the Aboriginal Heritage Act.
I therefore find that second limb of s 237 is not attracted.
Land and waters (s 237(c))
The Tribunal is required to make an evaluative judgement on whether major disturbance to land is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005) at [41]–[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
The Tribunal has always had regard to the overall circumstances of each case including in particular the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally (as defined above) to think that exploration activities would result in any major disturbance to land or waters. In most cases the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so but there have been exceptions (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [87] and the cases cited therein).
In this matter I am satisfied that there is not likely to be major disturbance to land or waters. The area may have been the subject of pastoral activities and some limited exploration activities and while the general evidence suggests some environmentally sensitive areas (Weeli Wolli Creek and Springs and CALM file notation area overlapping 30.7 per cent of the proposed licence) there are the standard conditions which will limit the likelihood that the land and waters will be disturbed in a major way.
Determination
The determination of the Tribunal is that the grant of exploration licence E47/1235 to Pilbara Iron Ore Pty Ltd is an act attracting the expedited procedure.
Daniel O'Dea
Member
7 November 2006
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