Wunna Nyiyaparli/ Western Australia/ Dynasty Metals Australia Ltd - [2013] NNTTA 180

NATIONAL NATIVE TITLE TRIBUNAL

Wunna Nyiyaparli/ Western Australia/ Dynasty Metals Australia Ltd [2013] NNTTA 180 (18 December 2013)

Application No: WO2013/0349

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection application

Wunna Nyiyaparli People (WC2012/001) (native title party)

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The State of Western Australia (Government party)

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Dynasty Metals Australia Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Helen Shurven, Member

Place: Perth
Date: 18 December 2013

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 – expedited procedure attracted

Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237

Aboriginal Heritage Act 1972 (WA), s 18
Mining Act1978 (WA)
Rights in Water and Irrigation Act 1914 (WA)

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Butcher Cherel’)
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 ('Champion')
Dann v Western Australia [1997] FCA 332; (1997) FCR 391 (‘Dann’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd, [2011] NNTTA 22 (‘Tarlpa’)
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little’)
Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’)
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 (‘Parker 1’)
Parker v Western Australia and Others [2008] FCAFC 23; (2008) 167 FCR 340 (‘Parker 2’)
Smith v Western Australia [2001] FCA 19 ('Smith')
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’)

Representatives of the    Mr Ambrose Cummins, Cross Country Native Title Services
native title party
Representatives of the    Ms Caitlin Martin, State Solicitor’s Office
Government party           Ms Clyde Lannan, Department of Mines and Petroleum
Mr Phillip Nell, Department of Mines and Petroleum

Representative of the Mr Hong-Jim Saw, Hetherington Exploration and Mining Title

grantee party Services Pty Ltd

REASONS FOR DETERMINATION

On 13 February 2013 the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/2200 (‘the proposed licence’) to Dynasty Metals Australia Ltd (‘the grantee party’). The notice included a statement that the Government party considered that the grant of the proposed licence attracted the expedited procedure (that is, it can be done without the usual negotiation requirements pursuant to s 31 of the Act).
The proposed licence E47/2200 covers an area of 91.711 square kilometres and is approximately 83 kilometres in a northerly direction from Mount Newman in the Shire of East Pilbara. It is 100 per cent covered by the Wunna Nyiyaparli registered native title claim (WC2012/001 – registered from 30 March 2012).
On 15 March 2013, Betty Peterson and others on behalf of the Wunna Nyiyaparli People (WC2013/001) (‘the native title party’) lodged an expedited procedure objection application with the Tribunal.
The Nyiyaparli registered native title claim (WC2005/006) also overlaps the proposed licence by 100 per cent. No objection application was received by this registered claim group.
In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period, after the s 29 notification date for lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Directions made included that the Tribunal be provided with: compliance information from the State by 29 July 2013; contentions and evidence of the native title party by 12 August 2013; contentions and evidence of the grantee party by 19 August 2013; and contentions of the State by 26 August 2013. The Government party lodged its compliance information on 26 July 2013.
On 8 August 2013, directions were varied at the request of the native title party, and the native title party was then to lodge contentions and evidence by 23 September 2013, the grantee party to lodge contentions and evidence by 30 September 2013, and the Government party to lodge its contentions by 7 October 2013.
The native title party contentions were lodged on 22 September 2013, including an affidavit of Mr Ernest Coffin in support of the contentions. The 30 September 2013 (being the day the grantee party were required to lodge as per the varied orders) was a public holiday and all of the parties were made aware that the grantee party would lodge the day following the public holiday. Subsequently, the grantee party lodged their contentions on 1 October 2013. On 8 October 2013, the Government party provided an amended copy of their compliance information, correcting an error (at page 5). The Government party subsequently lodged its contentions on 7 October 2013.
On 21 October 2013, parties agreed that this matter could proceed to inquiry and be determined ‘on the papers’ (that is, without holding a hearing). I am satisfied that the objection can be adequately determined in this way (as per s 151(2) of the Act). On 30 October 2013, I was appointed by President Raelene Webb QC, as the Member for the purposes of conducting the inquiry.
On 4 December 2013, a map prepared by the Tribunal’s Geospatial services was provided to all parties for comment. No party objected to this map being used in relation to the preparation of this decision.

Legal Principles

Section 237 of the Act provides:
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 Deputy President Sumner considered the applicable legal principles (at [7]-[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Maitland Parker at [31]–[38], [40]-[41] (see also Parker 1 and Parker 2).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters, on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little, in particular [588]-[589]).

Evidence in relation to the proposed act

The Government party has provided: a tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the tenement; reports and plans from the Register of Aboriginal Sites maintained by the Department of Aboriginal Affairs (DAA - formerly the Department of Indigenous Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of grant; the instrument licence; and a tengraph quick appraisal.
The Government party documentation establishes the underlying land tenure of E47/2200 includes:

Pastoral lease 1957440 (Roy Hill) by 100 per cent
Historical lease 394/454 by 100 per cent
Tenement E47/1326 – Roy Hill Iron Ore Pty Ltd by 100 per cent
Pending tenement E47/2198 – FMG Pilbara Pty Ltd by 96.6 per cent
Pending tenement E47/2191 – Giralia Resources Pty Ltd by 100 per cent

Government party documentation also indicated the area is designated as a Surface Water Area and a Groundwater Area proclaimed under the Rights in Water and Irrigation Act 1914 (WA) and managed by the Department of Water.
Documentation establishes that E47/2200 has previously been overlapped by: five exploration licences (with between 9.5 per cent and 100 per cent overlap), granted since 1983, and all either surrendered or withdrawn between 1984 and 2012; and four temporary reserves, granted between 1959 and 1978 (with between 8.2 per cent overlap and 100 per cent overlap) and all either expired or cancelled between 1961 and 1979.
The quick appraisal document shows that services affected include: eight non-perennial lakes; three fences; one well; one dam; eight other non-perennial minor watercourses; and one yard.
The report from the DAA shows there are no registered sites under the Aboriginal Heritage Act 1972 (WA) (AHA) within the proposed licence.
Tribunal mapping indicates there are no Aboriginal communities located upon the area of the proposed licence.
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 proposed licence will also be subject to one further condition:
5. the licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1.The Licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder.
2.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.
3.The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.
In respect to Water Resource Management Areas (WRMA) the following endorsements apply:
4.The Licensee attention is drawn to the provisions of the:
·    Waterways Conservation Act, 1976
· Rights in Water and Irrigation Act, 1914
·    Metropolitan Water Supply, Sewerage and Drainage Act, 1909
·    Country Areas Water Supply Act, 1947
· Water Agencies (Powers) Act 1984
· Water Resources Legislation Amendment Act 2007
5.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.
6.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.
In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:
7.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.
In respect to Waterways the following endorsement applies:
8.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:
·   50 metres from the outer-most water dependent vegetation of any perennial waterway, and
·   30 metres from the outer-most water dependent vegetation of any seasonal waterway.
In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:
9.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by the DoW.
10.All activities to be undertaken with minimal disturbance to riparian vegetation.
11.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds or banks issues by the DoW.
12.Advice shall be sought from the DoW and the relevant service provider if proposing an exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.
In respect to Proclaimed Ground Water Areas the following endorsement applies:
13.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.

Evidence provided by the native title party

The native title party has provided the following documents:

A statement of contentions of the Wunna Nyiyaparli people
An affidavit of Mr Coffin affirmed 20 September 2013. Mr Coffin states he is a member of the native title party and I accept he is authorised to speak for this area on behalf of the native title party. The affidavit of Mr Coffin is attached in this decision as Annexure A.

Evidence provided by the grantee party

The grantee party provided the following documents:

Contentions dated 1 October 2013
Tenement search of E47/1326.

Considering the Evidence

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of E47/2200 and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (see Smith at [26]). This assessment is necessarily contextual, taking into account any factors that may have already had an impact on the native title party’s community or social activities (for example mining or pastoral activity) (Smith at [27]).
It is not contested that some exploration and pastoral activity has occurred over the area of E47/2200.
The native title party has provided only very general evidence of the kinds of community or social activities that currently take place on or in the proximity of E47/220. The native title party contentions particularise the interference with community or social activities as follows:
5. The interference is of two kinds:
a.Direct interference with Wunna Nyiyaparli people’s camping, hunting and collecting bush food activities on areas where the grantee party is conducting exploration activities; and
b.Direct interference with the Wunna Nyiyaparli people’s maintenance of Wunna Nyiyaparli rights and responsibilities, under Wunna Nyiyaparli laws and customs, to look after Wunna Nyiyaparli country and to be consulted about and to give permission for the use of Wunna Nyiyaparli country by others (in this case the grantee party). This consultation and permission process is in itself is [sic] a key Wunna Nyiyaparli community and social activity, one that is central to the maintenance of Wunna Nyiyaparli social and community cohesiveness.
The affidavit of Mr Coffin does not particularise these activities in any further detail. Mr Coffin’s affidavit focuses primarily on the Wunna Nyiyaparli duty to protect country and their right to be consulted about and negotiate with respect to activities that occur on their country (see for example at paragraph 9 of the affidavit).
There is no reference in the native title party’s contentions or Mr Coffin’s affidavit as to the frequency with which these activities occur, or to the extent which they occur over the area of E47/2200. I note also that, according to the Tribunal Geospatial Services map, there are no Aboriginal communities on the proposed licence site or in close proximity to it.
The grant of the proposed licence is for exploration activities. It would be necessary for a mining lease to be granted for any mining activity to take place on the area, under a separate future act procedure.
The grantee party contends there are no registered sites of significance on the register kept by the DAA, and that the area has been subject to pastoral and mining activity since the 1960’s, which suggests that any community or social activities are already subject to, or coexistent with, the lawful activities of pastoral leaseholders and mining tenement holders.
The grantee party contends that the tenement of the most recent significance is E47/1346. I believe this is a typographical error and they are referring to E47/1326, which overlaps the proposed licence by 100 per cent. The grantee party states that during the period of overlap (since at least 2005) $450, 000 was expended across E47/1326, of which $23, 000 is reported as expended on Aboriginal Heritage Surveys.
The grantee party further contends the grant of the proposed licence is not likely to interfere with areas or sites which are of particular significance to the native title party because: the proposed exploration activity will include activities associated with low impact minor disturbances; the grantee party will comply with all conditions and legislative requirements including the AHA, the Mining Act 1978 and has a history of completing surveys before commencing ground disturbing activities.
The grantee party contentions also state:

16. the Grantee Party acknowledges that there may be sites of particular significance located on the proposed licence that are not recorded on the register kept under the AHA, or overlapping with any sites located by surveys completed by the Nyiparli [sic] People and with respect to the overlapping Native Title Party’s claim; and will

a. Notify the Native Title Party about proposed on-ground works (whether ground disturbing or not) and provide detailed information about those works before commencing them;

b.   Advise the Native Title Party of dates when the Grantee Party will be on-ground;
c.    Take additional care when conducting on-ground activity with respect to the Native Title Party’s claim;
d.   Limit the use of motor vehicles where possible;
e.    The Grantee Party will complete rehabilitation of any disturbances as exploration is conducted;
f.     Avoid any sites or areas of significance if notice and co-ordinates are provided by the Native Title Party;
g.   Register heritage surveys completed by the Nyiparli [sic] people in compliance with the Aboriginal Heritage Act.
h. Provide notice to the Native Title Party of any applications for for [sic] consent under s 18 of the Aboriginal Heritage Act.

The Government party similarly contends that given the low impact exploration activities planned by the grantee party, it is not likely they will have any real disruptive effect upon the community or social activities outlined by the native title party.
The Government party contend that although the grantee party and native title party may from time to time come across one another in the course of their activities, it is not apparent that the native title party will be prevented or disrupted in the carrying out of their activities. The Government party states that: ‘[f]or example, hunting and mineral exploration activities are, by their nature, inherently capable of coexistence’ (at (41(f))).
The Government party further contend (at 41(b)) that:
The Grantee Party has indicated its willingness to protect Aboriginal heritage sites by offering and entering into an Alternate Heritage Agreement with the Nyiyaparli People. Whilst the Government Party acknowledges that the Native Title Party is a distinct native title claim group, a grantee party’s willingness to enter into such an agreement is a relevant factor in determining that there is not likely to be interference with the social and community activities of the native title holders. Further, the Grantee Party has expressly indicated its intention to consult and closely work with the Native Title Party, to protect any heritage areas or sites.
Taking all of these factors into account, I find that the exploration activity is unlikely to directly interfere with the community or social activities of the native title party, as described in this matter, in a substantial or more than trivial way.

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 (that is, more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept by the DAA shows that there are no registered sites within the boundary of E47/2200, but this does not mean there may not be other sites of particular significance to the native title party that are not registered. 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 sites in each matter. The Tribunal has described the regulatory regime pursuant to the AHA on numerous occasions (see Maitland Parker at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel at [81]- [91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely there will be interference with sites of particular significance found to exist.
The native title party contentions state there are ‘a number of sites of particular significance within the boundary of the proposed tenement’ (at 13). Mr Coffin’s affidavit explains further there are artefact scatters across the land covered by E47/2200 (at 11).
I accept that, within the boundary of the proposed licence, there are artefact scatters of importance to the native title party. They are stated to be important because ‘they are part of what our old people have left behind’ (at 11).
The native title party also contend there is no information regarding the intentions of how the grantee party plan to use the proposed licence. They argue the regulatory regime is not sufficient, as the grantee party have not agreed to enter into a heritage agreement or conduct a site survey with the Wunna Nyiyaparli people as a distinct native title claim group from the Nyiyaparli people, whom the grantee party do have a heritage agreement with.
I do note the grantee party contentions outline the extent of exploration they propose to undertake across the proposed licence. The grantee party state the activities will be ‘low impact minor disturbances’ and that ‘ground disturbances will not occur until drilling is commissioned, which would only be economically feasiable [sic] upon completion of a range of... low and no-impact activities’ (at 10).
I accept the grantee party has shown a willingness to consult with the native title party, to notify them about proposed on-ground works, and to register the heritage survey completed with the Nyiyaparli people. While not subject to agreement between the grantee party and the native title party, this survey reveals an awareness of the grantee obligations in this respect. The grantee party have also agreed to avoid any sites of significance to the Wunna Nyiyaparli people if notice and co-ordinates of these sites are provided by the native title party. Further, the grantee party state they intend to comply with all conditions and legislative requirements imposed on them, including but not limited to the AHA and Mining Act, and that they have never been accused of breaching or been prosecuted under the AHA. I have no difficulty accepting the grantee party intends to act lawfully and in accordance with the AHA.
Based on the available evidence, which is limited in respect of any sites of particular significance which exist on or near this proposed licence, and statements made by the grantee party, I am satisfied that the grantee party will consult and discuss with the native title party in relation to exploration activity conducted on the proposed licence site. Even if sites of particular significance were to exist on the proposed licence, it is not likely that interference would occur by the proposed activities of the grantee party, based on the available evidence.
I find there is not likely to be a real risk of interference with any sites of particular significance to the native title party in the proposed licence area.

Major disturbance to land and waters (s 237(c))

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters 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 at [41]-[57]; Dann).
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 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 at [74]-[79] and the cases cited therein).
The native title party have not made any detailed contentions in relation to s 237(c) beyond a very general statement that ‘[t]he grantee party would, pursuant to the proposed tenement, have the right to conduct a range of activities that would have a major impact on Wunna Nyiyaparli land’ (at 26).
There is no evidence to suggest there are any exceptional factors leading to a finding that major disturbance is likely. The area of E47/2200 has been the subject of past and present mineral and pastoral activities. The presumption of regularity applies in that there is no evidence that there will not be compliance with the Government party’s regulatory regime.
It is also relevant that the grantee party have stated that it is their intention that the exploration activity will be low impact with minor disturbances.
I find that there is not likely to be major disturbance to land or waters in relation to the grant in this matter.

Determination

The determination of the Tribunal is that the grant of exploration licence E47/2200 to Dynasty Metals Australia Ltd is an act attracting the expedited procedure.

Helen Shurven
Member
17 December 2013

ANNEXURE A
AFFIDAVIT OF MR ERNEST COFFIN

1.        I am a Wunna Nyiyaparli man and I am one of the Wunna Nyiyaparli people who jointly comprise the registered native title applicant in the Wunna Nyiyaparli registered native title claim (WC12/1; WAD22/2012). I am authorised by the Wunna Nyiyaparli applicant to affirm this affidavit in support of Wunna Nyiyaparli’s objection to Dynasty Metals’ application for tenement E47/2200 (tenement) being dealt with under the expedited procedure.
2.        Unless stated otherwise, my statements in this affidavit are made on the basis of facts within my own knowledge. Where I rely on facts outside my personal knowledge, I have identified the source of those facts and believe them to be true.
3.        The Wunna Nyiyaparli object to the tenement application being dealt with under the expedited procedure for several reasons, which I explain below.
4.        The Wunna Nyiyaparli have the following registered native title rights in the Wunna Nyiyaparli claim area, which includes the land subject to the proposed tenement:
a.The right to live within the area;
b.The right to make decisions about the use and enjoyment of the area;
c.The right to access the area;
d.The right to control the access of others to the area;
e.The right to use and enjoy the resources of the area;
f.The right to control the use and enjoyment of others of resources of the area;
g.The right to maintain and protect places of importance under traditional laws, customs and practices in the area;
h.The right to teach and pass on knowledge of the claimant group’s traditional laws and customs pertaining to the area and knowledge of places in the area;
i. The right to learn about and acquire knowledge concerning, the claimant group’s traditional laws and customs pertaining to the area and knowledge of places in the area; and
j.The right to manage, conserve and look after the land, waters and resources.

5.        I know our native title claim area well and have visited it many times with other Wunna Nyiyaparli people. I first got to know this country when I went there hunting and camping with my father and grandfather when I was a young boy. I still go there whenever I can. I hunt there and I keep an eye on the country.
6.        I know the area covered by the proposed tenement and I have authority to speak for the area as a Wunna Nyiyaparli man who has been through the law. My sons have also been through the law.
Interference with Community and Social Activities
7.        We Wunna Nyiyaparli people have a connection under our traditional laws and customs to the land covered by the proposed tenement. This connection is based on what has been passed down to us from our ancestors. In my case that means from my father and grandfather and keeping our traditional cultural heritage going.
8.        My family and I carry out traditional activities on the land within the proposed tenement including camping hunting and getting bush tucker and bush medicines.
9.        Exploration activity on the proposed tenement will scare away bush animals, especially when heavy machinery is used, and will destroy plants that we Wunna Nyiyaparli people use. The grant of the tenement will therefore directly interfere with our enjoyment of our native title right to use and enjoy the resources of our country, and with our community and social activities on the land. This is especially so because Dynasty Metals has not sat down with us to talk about what they want to do on the tenement and they have not promised to do this. Dynasty Metals need to do this so we know where, when and how they intend to conduct their exploration activities. Once we have this information Dynasty Metals need to listen to our views about how to minimize the impact on our community and social activities, like hunting and camping.
10.      It’s not just about our activities like hunting and getting bush tucker. It’s also about showing respect for our law and culture. Dynasty Metals should talk to the Wunna Nyiyaparli elders about what they want to do on our land and they should listen to what we have to say about that. That’s the right way to do it culturally. We are not against mining and exploration but we want our law and culture respected. Dynasty Metals should sit down and talk to us properly. We can only give our comments and approval if we know the details of what Dynasty Metals wants to do and where they want to do it. If we don’t have that information or if Dynasty Metals don’t take the time to listen to us then this will have a bad effect on our community, because we will feel like our law and culture and our rights and responsibilities to our people and our country aren’t being respected.
Interference with Sites of Significance
11.      There are many artefact scatters on the land covered by the proposed tenement, left by our ancestors. These artefacts are not recorded sites and can only be found by close examination of the country. These sites are very important to us because they are part of what our old people have left behind. We have a cultural responsibility under Wunna Nyiyaparli laws and customs to do this.
12.      We need an agreement with Dynasty Metals so that Dynasty Metals will tell us exactly where they want to explore and, if Dynasty Metals is going to disturb the land, to give us the opportunity to go to the places where they want to do this and let them know if any sites would be affected and where they can go and where they can’t go.
13.      It’s no good just talking to us or showing us on a map. Dynasty Metals need to consult properly with us Wunna Nyiyaparli people and take appropriate Wunna Nyiyaparli people out on a site survey.
14.      Dynasty Metals have said to our lawyer that they already have a heritage agreement with the Nyiyaparli claim group covering the areas of the proposed tenement and they would be very reluctant to enter an agreement with us. But it is not good enough for Dynasty Metals only to deal with the Nyiyaparli claim group on heritage matters. The Nyiyaparli group will not agree to include us on site surveys. We are a different claim group and we have our own registered native title right to maintain and protect places of importance under our traditional laws and customs. Dynasty Metals should recognize this and allow us to exercise these rights. Dynasty Metals should have a heritage protection protocol with the Wunna Nyiyaparli.
15.      If Dynasty Metals get this tenement and go ahead with the exploration activities without consulting properly with us and without undertaking a heritage survey with our people then Dynasty Metals would not be respecting our right to maintain and protect places of importance to us and they would be likely to damage or interfere with sites that are significant to us.
Major Disturbance to Land and Water
16.      The grant of this exploration licence would allow Dynasty Metals to extract many tonnes of earth, rock or mineral-bearing substances. This would be a major disturbance to our land and may also impact on underground water.

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Citations

Wunna Nyiyaparli/ Western Australia/ Dynasty Metals Australia Ltd [2013] NNTTA 180

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

0

Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15

Champion v Western Australia [2005] NNTTA 1