Yindjibarndi Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd
[2010] NNTTA 194
•29 November 2010
NATIONAL NATIVE TITLE TRIBUNAL
Yindjibarndi Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2010] NNTTA 194 (29 November 2010)
Application No: WO10/393
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Yindjibarndi Aboriginal Corporation – (WC99/14)
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The State of Western Australia
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FMG Pilbara Pty Ltd
DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Neville MacPherson, Member
Place: Perth
Date: 29 November 2010
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act is likely to interfere directly with the carrying on of community or social activities – whether act is likely to interfere with sites of particular significance – whether act is likely to cause major disturbance to land or waters – expedited procedure not attracted
Legislation:Native Title Act 1993 (Cth), ss 29, 31, 35, 38, 151(2), 237
Mining Act 1978 (WA), ss 8, 20(5), 37, 38, 63
Aboriginal Heritage Act 1972 (WA), ss 5, 17, 18
Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea[1]
[1] Throughout this determination, reference is made to ‘Daniel O’Dea’ and to ‘Member O’Dea’; such references are to one and the same person and are to be read as references to ‘Member O’Dea’, a duly appointed member of the National Native Title Tribunal (‘the Tribunal’).
Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250
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[2]
[2] References, variously, in this determination to ‘Hon C J Sumner’; ‘Deputy President Sumner’; and/or ‘DP Sumner’ are references to one in the same person, and are to be so read.
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso[3]
[3] References, variously, throughout this determination to ‘John Sosso’ and/or to ‘Deputy President Sosso’ are references to one in the same person, and are to be so read.
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Walley v Western Australia (2002) 169 FLR 437
Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32
Solicitors for the Mr George Irving, John Toohey Chambers
native title party: Mr Simon Millman, Slater and Gordon
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representative for the
Government party: Mr Greg Abbott, Department of Mines and Petroleum
Representative for the
grantee party: Mr Damon Edwards, FMG Pilbara Pty Ltd
REASONS FOR DETERMINATION
On 18 December, 2009, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E47/1818 (‘the proposed licence’) to FMG Pilbara 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 82.64 square kilometres and is located 71 kilometres north-west of Wittenoom, in the Shire of Ashburton. The proposed licence entirely overlaps the determination area of the Yindjibarndi People [Native Title Claim No. WC99/14, registered on 14 July, 1999, as the registered claim of the Ngarluma/Yindjibarndi People, was determined by the Federal Court to hold native title on 2 May, 2005]. The Yindjibarndi Aboriginal Corporation (‘the native title party’) is the registered native title body corporate, being the prescribed body corporate on the National Native Title Register, determined by the Court to hold the native title rights and interests in trust for the common law holders.
On 17 March, 2010, the native title party made an expedited procedure objection application to the Tribunal in respect of the proposed licence.
On 12 April, 2010, Deputy President Sumner was appointed as the Tribunal member for the purposes of the conduct of the inquiry. In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. 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 which could lead to disposal of the objection by consent.
At an adjourned status conference on 18 August, 2010, following a number of conferences and a request to extend the time required for compliance with directions in attempts to reach agreement, the matter was adjourned to the listing hearing. This was on the basis that agreement would be reached in the interim, or parties would submit contentions and evidence by the directed dates.
The Government party lodged its evidence and contentions on 26 July and 6 August, 2010. Following two further requests to amend compliance dates, the native title party filed a statement of contentions on 26 August, 2010. Native title party supporting evidence, lodged on 25 August, 2010, included the signed affidavit of Mr Michael Woodley. The grantee party advised the Tribunal on 3 September, 2010, that it would rely on the contentions of the Government party.
On 5 September, 2010, I was appointed by DP Sumner as the Tribunal member for the purposes of the conduct of the Inquiry. The parties had requested at the listing hearing on 2 September, 2010 that the inquiry be heard ‘on the papers’, that is, without holding a further hearing. I am satisfied that the objection can be adequately determined on the papers (s 151(2) of the Act).
Further submissions were sought from all parties in response to issues raised in the native title party contentions. The Government party lodged further contentions on 1 November, 2010, and the native title party lodged a reply on 17 November, 2010. The grantee party advised the Tribunal on 22 October, 2010, that it would rely on the contentions of the Government party.
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’), DP Sumner considered the applicable legal principles (at 439-449 [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 449-454 [24]-[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation, unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 which requires approval by the Environmental Officer, DoIR (as noted above, now ‘DMP’), of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs to obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I 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, Deputy President (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and, in separate judgments, was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).
Evidence in Relation to the Proposed Act
The Government party documentation establishes that the underlying land tenure on the proposed licence is as follows:
- Coolawanyah Pastoral Lease 3114/1228 (47 per cent overlap)
- Mt Florance Pastoral Lease 3114/465 (52.3 per cent overlap); and
- Four road reserves (each less than 0.1 per cent overlap).
The entire area of the proposed licence was released for geothermal acreage in 2008. Additionally, three file notation areas overlap the proposed licence under the jurisdiction of the DoIR (as noted above, now DMP). These are FNA/7279 (a proposed railway corridor), FNA/7299 (Department for Planning and Infrastructure) and FNA/8001 (for the Yindjibarndi Aboriginal Corporation), respectively. The proposed licence also includes a number of roads, buildings, wells/bores with windmills and an aircraft runway and landing ground.
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed licence.
Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party reveals one registered Aboriginal site under the Aboriginal Heritage Act1972 (WA) (‘AHA’) within the tenement, as follows:
- Site ID 10676 – Whim Creek 17, Packsaddle (Permanent register, open access, no restrictions – modified tree, artefacts/scatter).
The Government party documentation indicates no current exploration or mining activity over the area of the proposed licence. One exploration licence, with an overlap of 99.2 percent, was active from 2003 to 2007, and a further temporary reserve was active for a short period in 1969.
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). Additional conditions imposed require that the pastoral lessee be notified of the grant of the licence and of certain exploration activities (conditions 5-6). A further two conditions restrict interference with the Aerial Landing Ground (condition 7) and activities being carried out within the proposed railway corridor that interfere with, or restrict, rail route investigation activities (condition 8).
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 AHA and any Regulations thereunder.
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) 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.
In addition, the Government party proposes to impose a condition which allows the native title party, within ninety days of the grant of the licence, to request the grantee party execute a Regional Standard Heritage Agreement, within thirty days of the request, of the type ‘endorsed by peak industry groups and Pilbara Native Title Service’ in favour of the Yindjibarndi Aboriginal Corporation.
Evidence provided by the native title party
The submissions of the native title party include the signed affidavit of Mr Michael Woodley (‘MW Aff’), sworn on 25 August, 2010, and made in the following terms:
AFFIDAVIT OF MICHAEL WOODLEY
I, Michael Woodley, Chief Executive Officer of Yindjibarndi Aboriginal Corporation; and, Chief Executive Officer of Juluwarlu Aboriginal Corporation, of 664 Lockyer Way, Roebourne, in the State of Western Australia, make oath and say as follows:
1.I am a member of the Yindjibarndi People the society of Aboriginal people whose native title rights and interests were recognised, by the Federal Court of Australia (in Daniel v State of Western Australia [2005] FCA 536, and upheld by the Full Court of the Federal Court, in Moses v State of Western Australia [2007] FCAFC 78), in an area of land and waters (“the Yindjibarndi Native Title Area”) that is situated in the Pilbara region of Western Australia.
2.I am Chief Executive Officer of Yindjibarndi Aboriginal Corporation (“the Native Title Party”) and a senior Yindjibarndi Lawman. As such, I have been authorised to make this affidavit by the Native Title Party and other senior Yindjibarndi Lawmen, for and on behalf of the Yindjibarndi People (“Yindjibarndi”).
3.Except where I say otherwise, the facts set out in this affidavit are within my own knowledge and belief and, to the best of my knowledge and belief, they are true and correct.
4.I make this affidavit in support of the Statement of Contentions filed by the Native Title Party objecting to the expedited procedure for the grant of Exploration Licence E47/1818 (“the Proposed Tenement”) to FMG Pilbara Pty Ltd (“FMG”).
5.I am aware that the Government is wanting to grant the Proposed Tenement in the Yindjibarndi Native Title Area to FMG, and is arguing that Yindjibarndi shouldn’t get the right to negotiate because FMG’s work isn’t likely to interfere with any of our community activities or with any of our sites or areas of significance; and that the exploration work won’t be a major disturbance. The Yindjibarndi disagree.
COMMUNITY ACTIVITIES:
Managing & Looking after Yindjibarndi Country
6.The Yindjibarndi, as a community, looks after the area of our country where FMG wants the Proposed Tenement and we do a lot of community activities in that area to make sure it is looked after in the proper way. The reason we do this is because Yindjibarndi country is, in accordance with our religious beliefs, a religious and spiritual domain. We believe our country is inhabited by the spirits of our old people and by Marrga, powerful spirit beings from Ngurranyujunggamu, which in Yindjibarndi language means “when the earth was soft”. The Ngurranyujunggamu is our “Dreamtime”; but for us, this is not something that happened a long time ago, we believe it is still here today, that we live in the Ngurranyujunggamu.
7.The Yindjibarndi believe that Yindjibarndi country was created by Marrga in the Ngurranyujunggamu, after the Law was given to the Marrga by Minkala, our God. The Marrga foresaw their own passing and so they gathered together all the Ngaardangarli (Pilbara Aborigines), at Gumunha, in the heart of what became Yindjibarndi country – not far from the area where FMG wants the Proposed Tenement. In those times, all the Ngaardangarli spoke a common language, were of one group, and carried no responsibility for any particular Law or country. The Marrga divided the Ngaardangarli into different groups and put each group into the domain where the Marrga had put their language and their Law. Each group was commanded by the Marrga to speak for their domain in the language of that domain and to look after their domain in accordance with the Law for that domain. The Yindjibarndi domain includes all the land and waters in the Yindjibarndi Native Title Area and the land and waters covered by the Yindjibarndi #1 Native Title Determination Application WAD6005/03.
8.Yindjibarndi country is acknowledged and respected by all Ngaardangarli as a holy place, because it is the centre where all Law began; and the Law carried by Yindjibarndi, which is called “Birdarra”, is referred to by the other Ngaardangarli as Thudungu – the big sister (‘sitting on top’) of all other Law. Yindjibarndi do not say this; instead, we refer to the Law of our neighbours, which is called “Wallijingha”, as the “top” Law. In this way, we each show our respect for the other’s Law.
9.Yindjibarndi must look after Yindjibarndi country because we belong to Yindjibarndi country. I do not feel or see myself as something that is separate and different from my country. My spirit comes from my country and is always connected to it in the Ngurrangyujunggamu. It’s the same for all Yindjibarndi. This is why, if Yindjibarndi country is hurt because our Law is not followed, Yindjibarndi people suffer. The Marrga still live in Yindjibarndi country and so do the spirits of our old people. They watch us always to make sure we look after our country the proper way. Throughout Yindjibarndi country you can see pictures of the Marrga, carved in rocks and left behind for us today as proof that they are still here.
10.Under our Law, if we look after our country the proper way, the country looks after us and provides for us, but if we break our Law, or allow others to break it, we suffer. Our people get sick or die, or the country dries up and we can’t get what we need to go on living.
11.That is what happened at Ngurrawana when our old people were forced off the Millstream Pastoral Lease by the station owner in the 1950’s and we lost the ability to manage our part of that country. Shortly afterwards the Ngurrawana Wurndu (river) dried up. It stayed dry for over 30 years, until my Grandfather went back and started the Ngurrawanna Community in 1985. Even then, it was four years before the river started running again.
12.This is the way it is under our law, if the connection between Yindjibarndi People and Yindjibarndi country is broken, if Yindjibarndi are prevented from managing our country, it dries up and dies. It can be brought back to life by Yindjibarndi but not without a lot of suffering, grieving and hard work.
13.Under our Law, managing and looking after country in the proper way requires Manjarnhu (strangers) to wait outside of Yindjibarndi country until invited to come in by the bosses for that country. Yindjibarndi must meet with Manjarnhu to understand how they will fit in with us, we must introduce them to our country, and we must reach an agreement with them to ensure they will not act in any way that breaks the Law for our country. This is what we have always done because it is the only way to ensure that Yindjibarndi country will continue to look after us and provide for us. For the Yindjibarndi People this is a community activity that we must carry out as a matter of religious observance.
14.Yindjibarndi country is divided up into 13 home areas, which we call Ngurra, and each Ngurra is divided by a Wurndu which gives the Ngurra its name. Each Ngurrra has four parts; one for each of our Galharra groups. The Banaga and Burungu, are on one side of the Wurndu; and, Garimarra and Balyirri, are on the other. The Banaga and Burungu side is called Walhany; and the Garimarra and Balyirri side is called Ngarrli. These divisions are important for our ceremonial activities.
15.Each Ngurra is the “home” of the Ngurrarangarli. This is the Yindjibarndi word for the human beings from the Ngurra. According to Yindjibarndi Law, the spirits of the Ngurrarangarli come from inside the Ngurra; belong to the spirits of the Ngurra; and return to the Ngurra after we die. Even when we are physically separated from our Ngurra through our daily activities, in the Ngurrarangarli the spirits of the Ngurranyujunggamu remain connected to their Ngurra.
16.This is how it is for us: each Ngurra has its own spiritual energy, which is very powerful, and each Ngurra holds the spirits of our ancestors who belonged to that Ngurra. Those spirits watch over the Ngurrarangarli to make sure we are following our law. If we do, they look after us and help us; if we don’t, they can grab us and hurt us.
17.Each Ngurra has its own Thalu (a special site which gives control over a particular resource) and its own Gandi (Sacred Stone) site, which, under Yindjibarndi Law, can be used only by, and for, its Ngurrarangarli. The same rule applies to all other sacred sites and resources situated in each Ngurra.
18.For each Ngurra there are four Mirduwarra (bosses) – one for each of our four Galharra groups; and one of those Mirduwarra, the most knowledgeable, is also the Tharngungarli – the boss for all the Ngurrarangarli, and for the Ngurra. The Tharngungarli is helped by one of the other Mirduwarra (called Minga-Margu) who, because he is closest to the Tharngungarli (having spent the most time with him; and, having learned the most from him) is most likely to become the next Tharngungarli for that Ngurra. The most knowledgeable of all the Tharngungarli is the Nyambali (the boss for all bosses and the ultimate human boss for Yindjibarndi country)
19.Important decisions about things that will affect Yindjibarndi country, such as the work that FMG wants to do, can’t be made by one person or one family alone. The Ngurrarangarli for the Ngurra in which the work is to be done have to be consulted; the Mirduwarra will then discuss it. Following that, it will be discussed by all the Tharngungarli, sitting together with the Nyambali as a Council, which we call Nyambali-Tharngungarli. But in the end it is the Yindjibarndi People, as a community that must agree.
20.Managing Yindjibarndi country and making decisions about looking after Yindjibarndi country is a very important community activity; and Yindjibarndi spend a lot time doing this, because our Law requires us to do so. The Yindjibarndi Aboriginal Corporation helps to carry our this community activity by organising meetings with people and companies who want to use Yindjibarndi country and then arranging field trips so that the Yindjibarndi can make informed decisions about the activities that are proposed to be carried out on our country.
21.In the past, a lot of Manjarnju have come into Yindjibarndi country without waiting to be invited. They were not properly introduced to our country, no agreements were reached, Yindjibarndi Law was broken and special places were destroyed. The Yindjibarndi do not want this to continue happening because it has caused a lot of suffering for Yindjibarndi. Justice Nicholson, in the Yindjibarndi Native Title Determination, said that Yindjibarndi stand on the cusp of the moment in time when our Laws, customs and religious beliefs could be washed away by the tide of the whitefella’s history. What is left is precious. If we allow the suffering to continue we will drown in that tide and there will be nothing left of our culture.
22.To prevent this, the Yindjibarndi as a community, manages Yindjibarndi country by trying to make sure that every Manjarnhu who comes into Yindjibarndi country respects our Law and looks after our country. Today, people who respect our Law and our religious beliefs contact the Yindjibarndi Aboriginal Corporation to ask about visiting Yindjibarndi country. Sometimes we arrange for Yindjibarndi people to go with them and sometimes we arrange for Yindjibarndi people to tell them where they can go and where they should stay away from.
23.In the same way when mining companies want to come into our country, we negotiate agreements with them to ensure they look after Yindjibarndi country in the proper way. These agreements allow us to check up on the mining companies, especially when they are ready to leave, to make sure they are looking after our country. Yindjibarndi people go out and make sure the mining companies have cleared up and that they have done all the things they agreed to do to look after Yindjibarndi country in the proper way.
24.Managing Yindjibarndi country and looking after it in the way I have described is a community activity that we are required to do under our Law. This community activity ensures that the country does not dry up and so ensures that we can get what we need, when we need it, in order to go on living the proper way.
25.If the Yindjibarndi are not allowed to negotiate an agreement with FMG, then we will not be able to undertake this important community activity and properly manage and look after the country where FMG Pilbara wants to explore.
Managing and Looking after Special Places
26.The most important community activity undertaken by the Yindjibarndi People is looking after sites and areas that are significant to us in accordance with our Law and our religious beliefs. Looking after these special places, including those in the land and waters where FMG wants the Proposed Tenement, is an important community activity, which we must carry out in accordance with our Law and our religious beliefs because, if we did not do so, we would be breaking our Law and we would suffer.
27.The Yindjibarndi look after sites and significant areas by ensuring that any Manjarnhu, who wish to conduct activities on Yindjibarndi country, including the lands and waters where FMG wants the Proposed Tenement, are told or shown where they can and cannot go to do such activities. Sometimes this requires Yindjibarndi to go out with them to keep them away from our special places. For mining companies, like FMG, the Yindjibarndi will negotiate an agreement which requires Yindjibarndi people to travel with the miner over our country so we can tell the miner whether it is safe under our Law to do a particular activity in a particular area or whether it would be better to do it in a different place. These agreements make sure that our significant sites and areas are managed and protected by the Yindjibarndi in the proper way under Yindjibarndi Law.
28.Looking after our significant sites and areas in Yindjibarndi country is a very important community activity that many Yindjibarndi people spend a lot of time doing. If this community activity is not done or is done badly then bad things can happen to the people who, under our Law, are meant to look after those sites and areas.
29.If the Yindjibarndi People are not allowed to negotiate an agreement with FMG, then we will not be able to undertake this important community activity and properly manage and look after the significant sites and areas in the land and waters where FMG wants to explore.
Sacred Sites and Significant Places
30.The area where FMG wants to explore is in Gumbarrungunha Ngurra and there are sites and areas in that Ngurra which are significant to the Yindjibarndi under the Birdarra (Yindjibarndi Law).
31.The original common language of the Ngaardangarli is preserved in the Burndud, the song cycle we sing each year in the Birdarra Law ceremonies. I was taught that language by my old people and have transcribed over eighty of these songs – word for word: its name; what it is; and what it means – because this is the foundation of the Ngaardangarli languages. The Birdarra is like our Bible; it contains not only the commandments of our God, Minkala, but also the history of our Law and culture.
32.There is a sacred hill, which is also called Gumbarrungunha, in the area where FMG wants the Proposed Tenement, which we sing each year when we put our young fellas through the Birdirra. This hill represents the Mujira Buwarri (Dingo dreaming).
33.This song is called Tharla Ngawurrba Burndud. The song was given to Yindjibarndi, by the Marrga, and passed through to him by our God, Minkala. We now carry this song, and every year we teach it to the next generation of Yindjibarndi so that we keep within our hearts and minds, and within our culture, the importance of this country and the Laws that are very special to Yindjibarndi.
Tharla ngawurr ngawurrba
Running Dog with forme coming from his mouth
Tharla ngawurr ngawurrba
Running Dog with forme coming from his mouth
Banyji warlbarra warlbarra yugurru
Zigzagging Dog to the tune of the spear thrower
34.Singing in the Gumbarrungunha – Tharla Ngarruba Burndud song each year puts us in Gumbarrungunha, so that the country can feel us, and we can feel it. This is how we massage our country to keep it and us alive.
35.Gumbarrungunha is occupied, used and enjoyed by Yindjibarndi in accordance with our traditional laws and customs and our religious beliefs. The spirits of the Ngurrarangarli reside in that area today, in the Ngurranyujunggamu, and so do our old people, as spirit people. We call them Ngiyalunha, Murdangarli, Nhugangarli, Junangarli, Barringarli, Wandangarli and Marlunghungarli.
36.The area where FMG wants to explore has many sites and areas, of significance to us under our traditional law; including Wundungarli (watercourses), Yirrgarn (birthplaces), Thungari (burial sites), Yamararra (caves), Yanthula Mawarn Thalu, Marninagrli (rock carvings), Budbungarli (artefacts), Yarna-ngarli (ochre quarries), Warnda-ngarli (particular flora), Gagi-ngarli (particular fauna) and Wurrungarli (special hunting hides). These places are inhabited and protected by Marrga and, under our Law, a person from the Galharra group that matches each place must first approach to introduce Manjangu.
37.The Buwarranha Wurndu (river) runs across the proposed exploration licences and on through the plains into the Yarndayirranha Wurndu. Buwarranha is the Yirrgarn (birthplace) for a lot of Yindjibarndi and so for them it is a special place that gives them their rights to Yindjibarndi country.
38.Some of the Yamararra (caves), which are located in the area where FMG wants to explore, still contain the physical remains of our old people; others contain their sacred gear, which they used in ceremonies, and others contain various relics, which demonstrate their use as shelters for our old people over thousands of years.
39.We sing the Yamararra each year in the Burndud:
Jilali ngarrguma yamayamadula
Soft white, eating this is a cave of comfortBulingajuwarri ngajuwarri
In Pleasure of myself-of-myself
40.There are many other watercourses Wundungarli that traverse the area where FMG wants the Proposed Tenement and it is essential for the well-being of the Yindjibarndi that FMG is properly introduced to each of these watercourses through a religious ritual which we call Wuthurru. Upon arriving at a watercourse an (sic) Yindjibarndi person will speak in Yindjibarndi language to the Marrga; and, taking a handful of water into his or her mouth, will blow the water back into the pool so the Marrga recognise the person as an (sic) Yindjibarndi person and will accept the person that is being introduced.
The Wuthurru introduction ceremony is as follows:
Ngurra gangnagarrinha yingu buluyugayi birbiwarni wanngayi thurdud mirda nhantharri bayarri . . .
Country we come here today to visit you and talk straight please don’t get angry and harm us . . . .Ngurra nhantharri wanggayi jujungu ngarringu nhurla yindangga mirdawa nhantharri bayarri . . .
Country we also ask you to let the Barrimirndi snake who lies here in this permanent pool know that we are here and ask him don’t harm us . . .
Juju yinda yambali gangnagarrinha buluyugayi barni yala nyinguwayi margurra barni mirda nhantharri bayarri . . .
Barrimirndi great snake and boss of this permanent pool we come to visit you, to sit by your side in respect of your laws don’t harm us . . .
41.Performing the Wuthurru protects the Manjangu and the Yindjibarndi People.
42.Also located in the area where FMG wants the Proposed Tenement is one Marnda Mawarn Thalu (healing place), called Biyamarna-nha, where Yindjibarndi Mawarnkarra (healers) perform their religious ceremonies; and Mawarn Thalu, which is the Thalu for Gumbarrungha Ngurra. Like the Thalu in the other Ngurra, this Thalu is associated with its own nearby ochre site, which must be used for the ceremonies conducted at the Thalu.
43.Also in the located area of the Proposed Tenement are two Birdirra Law Grounds: Gayiwayiyala and Thardiwulurngangha where Yindjibarndi put young fella’s through Law. These are sacred places for all Yindjibarndi and particularly for senior Yindjibarndi Lawmen, because it is a place of teaching for our young initiates.
44.The exploration licence sought by FMG Pilbara will also intersect Yawarnganha, the only area in Yindjibarndi country where young men can be taught to perform the Yulbirirri Thurru ritual by their grandfathers. This ritual makes the young man and country one, so that he will then be accepted by all the elements of the country as a Birirri, it also allows him to be safely seen by the spirits of our country so the knowledge can find him.
45.We need to have an agreement with FMG Pilbara to ensure that the sites and areas discussed above are not unduly interfered with, damaged or destroyed.
46.The Yindjibarndi People do not accept that the Aboriginal Heritage Act will properly protect our sites and areas of significance. It never has before. For example, it didn’t stop Rio Tinto from damaging Gurrwaying Yinda, in 2009 and it didn’t result in a prosecution for the offense that was committed on that site. Likewise, the Aboriginal Heritage Act didn’t stop the destruction of a lot of significant sites and areas when the Bungarliyarra Harding River Dam was built and one of our people died because of that.
Major Disturbance
47.Each of the significant sites and areas discussed above are associated with particular religious rituals or ceremonies which we are required to perform to keep our Law, our country and our culture alive. If those sites and areas are destroyed, it will no longer be possible to carry out these rituals and ceremonies. It is this kind of destruction that brought us, as a society, to a moment described by Justice Nicholson, where the tide of the whitefella’s history could wash away our laws and customs. The grant of the Proposed Tenement, will permit FMG to undertake its exploration activities on our country without our agreement. It will give FMG control over the management of our country and our cultural heritage. This is a major disturbance as far as the Yindjibarndi are concerned.
48.The Yindjibarndi are held to account for everything that happens in Yindjibarndi country. It doesn’t matter that we are sometimes powerless and can’t stop it. If something breaks our Law, we are responsible, and we suffer. This has happened so often in the past that it has made the Yindjibarndi weaker than we should be. We want to stop it happening again.
49.The spirits of our old people who inhabit that area of our country must be respected in the same way that we respect our living old people. This respect is enshrined in our Galharra.
50.The Yindjibarndi Galharra Law today is the same law given by Minkala to the Marrga. It was passed down to us, by the Marrga and our old people, and we are obliged to keep it going. That is what we have done, even through the hardest of times, and it is what we must keep doing. Galharra is a system of relationship rules, based on respect and reciprocity, which binds us together as a community and ensures that the resources of our country are properly shared by the present generation and preserved for future generations.
51.Galharra tells us how we are all related to each other and to country.
52.Galharra divides all things into four groups: Banaga, Burungu, Garimarra and Balyirri. Every animal, every plant and water place, the sun, the moon, and the stars, fire, wind, water and the Ngurra, and every Yindjibarndi child that is born – everything that is known to belong in Yindjibarndi country – is separated into one of these groups.
53.The Galharra Law tells us how a person in one group must behave in relation to all people and things in that same group and in relation to all people and things in the other three groups. Galharra is the centre of everything: it tells each of us what we must do and what we must not do in our relationships with each other and in our relationships with our country and its resources.
54.The Galharra Law sets out the rules about the sharing of work, responsibilities and resources in Yindjibarndi country. For example, the Galharra of each man and woman determines their roles and responsibilities at Birdarra ceremonies and funeral ceremonies. These roles and responsibilities change, depending on the Galharra of the person who is at the centre of the ceremony. The Galharra Law tells us who will be the bosses, and who will be the workers at these ceremonies.
55.The Galharra Law also tells us who we can marry and who we must avoid; who we must care for and who must care for us; who we must defer to and who must defer to us.
56.In Yindjibarndi country, Galharra determines who should first approach a particular site whether that be Yinda, Wurndu, Thurla or Yijirri (water places), marndaa (hill, mountain, rock or stones), or garra, bargarra, bantha, barurru, mardarra, jurdun, thalu, etc (significant features in the landscape) depending on its Galharra. If a man wants to work with wood, he will ensure that the tree from which he takes the wood shares his Galharra; otherwise it will be very difficult for him. On the other hand a person should not eat the meat of an animal that has the same Galharra, because that animal is his or her brother or sister, and eating its meat will make you sick.
57.When Ngaardangarli Manjangu (Aboriginal strangers) from neighbouring countries want to come into Yindjibarndi country, we are obliged under our Law to find out their intentions and their identification; and if worthy, we will then do the Bingjimagayi ritual and work out how their Galharra fits into our Galharra system. If there is any doubt about their intentions, the Lawmen will insist that they do the Binga ritual and a duty will be imposed to test their character. For example, they might be asked to hunt for, kill, and cook a particular animal for the elders. If they fail to do this the proper way, they might be required to do it again or they might be sent back to their own country. Doing the Binjimagayi ritual and, if necessary, the Binga ritual, guarantees that they are fully accepted by Yindjibarndi, as related members of our community for as long as they stay; they are now part of our system and must follow the rules; they now have fathers to watch over them and guide them in Yindjibarndi country and make sure they are safe; and, because they have shown us that they accept the Galharra, we are assured that they will honour the reciprocal rights and obligations of the Galharra Law.
58.These rituals are still performed during our law time; however, Ngaardangarli who wish to visit Yindjibarndi country outside of law time will ring us and let us know what they wish to do. If they are just passing through there’s no problem, but if they want to use the resources of Yindjibarndi country they still need our permission and they have to share what they get with us.
59.The survival and well being of Yindjibarndi depends on each of us following the Law that was given to us and ensuring that Manjangu do not do anything that breaks our Law. Yindjibarndi country is obliged to produce and share its resources with the Yindjibarndi People, only if the Yindjibarndi People continues to follow the Law by caring for the Yindjibarndi country and Yindjibarndi people in accordance with that Law. The same applies to Manjangu: Yindjibarndi People are obliged to share the resources of Yindjibarndi country with Manjangu, only if they too follow the Law by caring for Yindjibarndi country and Yindjibarndi people in accordance with that Law.
60.This can easily be done with other Ngaardangarli because they have their own Galharra and we can easily fit them into our system. It can also be done with people who are not Ngaardangarli and who don’t have Galharra, so long as they prove themselves worthy and we are confident they will abide by our law. But with mining companies, like FMG, it is not possible to fit them in to the Galharra system and the only alternative is an agreement which sets the rules about how they must relate to Yindjibarndi.
61.Allowing FMG to carry out exploration activities in Yindjibarndi Country, without first talking to the Yindjibarndi and negotiating an agreement, which ensures that FMG respects our Law and looks after our country the proper way, is a major disturbance for the Yindjibarndi because it will break our law, it will cause suffering for the Yindjibarndi People and it will further weaken our community.
The evidence of Mr Woodley is uncontested and I accept it. Mr Woodley says that he is a senior Yindjibarndi Law Man and member of the Yindjibarndi People and is recognised under traditional law as having the knowledge of sites and traditional stories in the area of the proposed licence. Although Mr Woodley is not one of the persons comprising the Applicant prior to the determination of native title, I accept that Mr Woodley is a member of the Yindjibarndi claim group and has the necessary authority to speak for country on behalf of the Yindjibarndi Aboriginal Corporation.
Community or social activities (s 237(a))
The Tribunal is required to make a predictive assessment as to whether, as a matter of fact, the grant of the tenement, and the 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 chance or risk of interference) (see Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). The notion of direct interference involves an evaluative judgment as to whether the future act is likely to be the proximate cause of the interference. The interference must be substantial, and not trivial, in its impact on community or social activities (Smith at 451 [26]). The assessment is also contextual, taking into account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), 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. DP Sumner has previously found, and I confirm, that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley, at [37]).
The evidence establishes that limited exploration activity has occurred in the proposed licence area. While it is unlikely, based on the limited exploration activity between 2003 and 2007, that some interference with the native title party’s community or social activities may have occurred, there is no specific evidence to support a finding that there has been any appreciable impact on the community or social activities of the native title party from previous exploration activity.
The Tribunal must also have regard to the fact that the grantee party’s access to the area would be temporary and be limited to the areas in which exploration is taking place. The documentation reveals the area of the proposed licence to be 82.64 square kilometres, whereas the area of the Yindjibarndi portion of the Ngarluma Yindjibarndi determination is approximately 10,320 square kilometres, much larger than the area of the proposed licence, and thus making it less likely that exploration on the area of the proposed licence will impact on community and social activities. There will be many other areas in which the native title party would be able to conduct those community and social activities if there were to be temporary interferences as a result of the exploration activities (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso (at [43]-[44])). I further note that the grant of the proposed licence does not confer exclusive rights of access on the grantee party.
The principle issue under s 237(a) is whether the extent of those community or social activities is such that exploration is likely to interfere with them. Mr Woodley says that members of the native title party ‘do a lot of community activities’ in the area of the proposed licence (MW Aff, para 6). The evidence of Mr Woodley, however, in relation to community and social activities that occur over the proposed licence, is relatively limited and focuses on the overarching principle of managing the Yindjibarndi country and overseeing access to areas and sites of significance. No specific evidence was provided regarding the frequency and nature of activities within the proposed licence itself. Further, there is no evidence of members of the native title party living near the proposed licence and no established physical communities of claim group members in the immediate area which might help support an inference that the community or social activities are of an intensive nature. Mr Woodley deposes that he lives in Roebourne, some 130 kilometres north west of the proposed licence area. The evidence provided does not support a finding that the native title party’s community or social activities are likely to be directly interfered with by the grant of the proposed licence and the activities carried out pursuant to it.
The native title party contends that there is a positive determination of native title in favour of the Yindjibarndi People, meaning that the Yindjibarndi People constitutes an Aboriginal community whose existence was given legal recognition at the time of determination, and that, accordingly, the Yindjibarndi People is an Aboriginal community situated in the land and waters of the proposed tenement. Whatever my private view on this contention may be, it is not necessary to address this contention because a determination that the expedited procedure does not apply is justified by my findings in relation to s 237(b).
Sites of particular significance (s 237(b))
In relation to this limb of s 237, the issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk) interference with areas or sites of particular (i.e., more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the AHA shows there is one registered site within the area of the proposed licence, but this does not mean there may not be other sites or areas of particular significance to the native title party over the area 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 AHA protects all Aboriginal sites, whether on the Register or not.
The Government party relies on ss 5, 17 and 18 of the AHA to contend that the grant of the proposed licence is unlikely to interfere with areas or sites of particular significance. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see Maitland Parker at [31]-[38] and [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91]). The Tribunal must consider, based on the particular facts of the case, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
Mr Woodley deposes that the following sites or areas of particular significance to the Yindjibarndi People exist within or in the vicinity of the proposed licence:
Gumbarrungunha, a sacred hill ‘in the area where FMG wants the Proposed Tenement, which we sing each year when we put our young fellas through the Birdirra. This hill represents the Mujira Buwarri (Dingo dreaming)’ (MW Aff, para 32). Mr Woodley proceeds to describe the significance of the song cycle and the importance of the annual performance to the Yindjibarndi People. Mr Woodley deposes that ‘every year we teach it to the next generation of Yindjibarndi so that we keep within our hearts and minds, and within our culture, the importance of this country and the Laws that are very special to Yindjibarndi’ (MW Aff, para 33).
Buwarranha Wurndu (river), which runs across the proposed license, is an important Yirrgarn (birthplace) for many Yindjibarndi (MW Aff, para 37). Mr Woodley deposes of the importance of initiating visitors to the area with a religious ritual called Wuthurru in relation to this and the other watercourses which traverse the proposed licence (MW Aff, para 40). Mr Woodley describes the ceremony as involving a ‘Yindjibarndi person [who] will speak in Yindjibarndi language to the Marrga; and, taking a handful of water into his or her mouth, will blow the water back into the pool so the Marrga recognise the person as an Yindjibarndi person and will accept the person that is being introduced’ (MW Aff, para 40). Tribunal mapping has been unable to locate the site referred to by Mr Woodley as Buwarranha Wurndu; however, mapping evidence identifies a number of rivers which intersect the proposed licence.
Yamararra (caves) are sacred burial site areas on the proposed licence (MW Aff, para 38). Mr Woodley deposes the caves ‘still contain the physical remains of our old people; others contain their scared gear, which they used in ceremonies, and others contain various relics’ (MW Aff, para 38). Mr Woodley’s evidence is not very specific as to the location of these human remains on the proposed area. It is probable at least that some of these human remains sites exist within the proposed licence area and I have no doubt that they are sites of particular significance to the native title party.
Biyamarna-nha is a healing place (Marnda Mawarn Thalu), where religious ceremonies are conducted and a nearby ochre site is used for the ceremonies conducted here (MW Aff, para 42).
Two Birdirra Law Grounds, called Gayiwayiyala and Thardiwulurngangnha: Mr Woodley says these two law grounds are ‘sacred places for all Yindjibarndi and particularly for senior Yindjibarndi Lawmen, because it is a place of teaching for our young initiates’ (MW Aff, para 43).
A further significant area is Yawarnganha which intersects the proposed license area. This is the ‘only area in Yindjibarndi country where young men can be taught to perform the Yulbirirri Thurru ritual by their grandfathers. This ritual makes the young man and country one, so that he will then be accepted by the elements of the country as a Birirri, it also allows him to be safely seen by the spirits of our country so the knowledge can find him.’ (MW Aff, para 44).
The evidence provided by the native title party in relation to sites is uncontested and I accept that it establishes the existence of a number of sites in the general area of the proposed licence, many of which are, given their nature, of particular significance to the native title party. I am satisfied that the sites identified in the native title party evidence, being Gumbarrungunha hill, Buwarranha Wurndu river, Biyamarna-nha healing place and law grounds Gayiwayiyala, Thardiwulurngangnha and Yawarnganha, are all areas or sites of particular significance to the native title party. Tribunal mapping evidence also establishes that there are a number of registered sites surrounding the proposed licence, particularly to the north and north-west. The permanent registered DIA site of a modified tree and artefacts/scatter within the proposed licence area further supports the native title party assertions. Further corroboration of sites and areas of significance is included in paragraph 36 of Mr Woodley’s affidavit, in which he deposes that the proposed licence area also includes significant watercourses, birthplaces, burial sites, caves, rock carvings, artefacts, ochre quarries, and special hunting hides to the Yindjibarndi People.
The affidavit of Mr Woodley evidences concerns about mining companies entering the proposed license area without permission and consultation with traditional owners. Mr Woodley deposes that the Yindjibarndi People need to be involved in showing Manjarnhu (strangers) who wish to conduct activities on Yindjibarndi country what they can and cannot do (MW Aff, para 27). Mr Woodley deposes that ‘looking after our significant sites and areas in Yindjibarndi country is a very important community activity that many Yindjibarndi People spend a lot of time doing. If this community activity is not done or is done badly then bad things can happen to the people, who, under our Law, are meant to look after those sites and areas’ (MW Aff, para 28). The evidence is corroboration of the fact that the areas and sites identified in the evidence are of particular significance to the native title party in accordance with their traditions. Taking into consideration the whole of the evidence, which is uncontested, I am satisfied that the area of the proposed licence and the surrounds, contains sites of particular significance to the native title party in accordance with their traditions.
I must now consider whether the protective provisions and procedures of the AHA, 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. It follows from the predictive assessment approach, that the intentions of the grantee party are relevant (Maitland Parker at [41] and cases cited therein). In this case, the grantee party has not provided any evidence of its exploration intentions to determine the type of work that the grantee party intends to conduct over the area of the proposed licence. In the absence of evidence to the contrary, the possibility remains that ground disturbing activities, including drilling and costeaning, will be needed, and I must make a determination based on the fact that the rights given under the Mining Act may be exercised to the full (Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32 at 50-51 [34]-[35]).
The native title party made the following contentions in relation to the Tribunal’s application of the ‘presumption of regularity’:
The Presumption of Regularity
23The Native Title Party disputes the contention, in paragraph 9 of the State’s Contentions, regarding the “presumption of regularity”, by which the Government Party contends, “it may be presumed that a grantee party will act lawfully in exercising rights given under an exploration licence”. The Native Title Party assumes, for present purposes, that the words “act lawfully” refer to future compliance, by a grantee party, with any conditions imposed on the grant of the proposed tenement, including environmental conditions and conditions regarding places and objects that are subject to the provisions of the AHA.
15Although the Tribunal consistently refers to and relies upon the “presumption of regularity”, when making a predictive assessment (under NTA s. 237) about the future behaviour of a grantee party; and in so doing, cites as authority earlier Tribunal cases such as Western Australia v Smith (2000) 163 FLR 32 (‘Smith’), Young v Western Australia (2001) 164 FLR 1 at [56] (“Young”); and Silver v Northern Territory of Australia (2002) 169 FLR 1 at [24] (‘Silver’), the Tribunal, in those earlier cases, does not cite any judicial authority in support of the application of that presumption to the Tribunal’s inquiry. Neither does the Government Party in the State’s Contentions.
16This approach appears to have commenced in Smith, where Deputy President Franklyn held (at [51]):
... in my opinion, in the absence of evidence to the contrary, it would be improper to assume that, in exercising the rights created by the grant, the Grantee would act in breach of the conditions (emphasis added).
17Having declined to make such an improper assumption, Deputy President Franklyn then, without reference to any judicial authority, elevated the contrary assumption (that a grantee party will never breach the conditions of a grant) to the status of a presumption of law by holding (at [52]) that “the presumption of regularity must prevail in the absence of evidence to the contrary” (emphasis added).
18The Native Title Party contends that the presumption of regularity cannot properly be applied to the Tribunal’s inquiry in respect of the future behaviour of a grantee party
19In Kingham v Sutton[4], the Full Federal Court of the Federal Court (at [58]) held:
[4] [2002] FCAFC 107, per Wilcox and Marshall JJ.
The essence of the presumption of regularity is that “official appointments were duly made and that official acts were duly performed”, see G. D Nokes, An Introduction to Evidence, 2nd ed 1956 at 64.
20The Full Court continued (at [59]):
As Wigmore, in Evidence in Trials at Common Law Vol 9, reveals at para 2534, the presumption of regularity is:
“... more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules”.
It may be said that most of the instances of its application are found attended by several conditions; first, that the matter is more or less in the past and incapable of easily procured evidence; second, that it involves a mere formality or detail of required procedure in the routine of a litigation or of a public offer’s action; third, that it involves to some extent the security of apparently vested rights so that the presumption will serve to prevent an unwholesome uncertainty; and finally, that the circumstances of the particular case add some element of probability.”
21The issue in question before the Full Court[5] was whether in circumstances where 458 union members had sworn affidavits attesting they had signed a petition for a referendum, the Court at first instance should have applied the presumption of regularity in respect of the personal identities of a further 1,257 signatures on the petition.
[5] Ibid., at [54]-[55]
22The Full Court was of the view that only the first of the four conditions was relevant to the issue in that case and that the better view of that was:
the issue was capable, and remains capable, of being resolved by evidence which was procured in respect of 458 people who were in the same position as the 1257 whose signatures are in dispute.
23In so doing the Full Court (at [63]) applied what was said in Morris v Kanssen[6] about the presumption of regularity; namely:
[6] [1946] AC 459, per Lord Simonds at 475
“It is a rule designed for the protection of those who are entitled to assume, just because they cannot know, that the person with whom they deal has the authority which he claims. This is clearly shown by the fact that the rule cannot be involved if the condition is no longer satisfied, that is, if he who would invoke it is put upon his inquires. He cannot presume in his own favour that things are rightly done if inquiry that he ought to make would tell them that they were wrongly done.
24This is why the operation of the rule is generally limited to cases concerning the exercise of power by public officials. As was pointed out by McHugh JA, in Minister for Natural Resources v New South Wales Aboriginal Land Council[7]:
[7] (1987) 9 NSWLR 154, (at 164), cited with approval by Buchanan J, in Phosphate Resources Limited v Minister for the Environment and the Arts [2002] FCA 1521, at [160]
‘Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.’
25The Native Title Party contends that the question, in the present proceedings, as to whether a grantee party will act lawfully and comply with all the conditions attached to the grant of the Proposed Tenement, is not one to which the presumption of regularity can properly be applied, for the following reasons:
25.1 the issue does not concern the exercise of power by a public official;
25.2 it does not concern past events;
25.3 it does not involve a mere formality or detail of required procedure;
25.4 it does not involve the security of apparently vested rights; and
25.5 there are no circumstances that add some element of probability.
26In respect of the last condition, the Native Title Party contends there is cogent evidence, which demonstrates that the public officials responsible for enforcing compliance with environmental conditions and Aboriginal heritage conditions are, in fact, incapable of enforcing compliance by grantee parties.
27In relation to the enforcement of environmental conditions, a press release issued on 13 November 2007 by then Resource Minister, Francis Logan, states:
Resources Minister Francis Logan has called on mining companies to clean up their act or face losing their Tenement, after an examination of exploration sites uncovered widespread environmental and regulatory breaches.
Mr Logan said recent inspections of 56 different exploration sites had found 46 that had breached exploration tenement conditions – an 82 per cent failure rate.
The Minister said the breaches included uncapped drill holes, the construction of exploration camps without approval, excessive clearing for drill pads and access tracks and a failure to rehabilitate these areas.
28 No evidence has since come to light to suggest that this situation has changed
29The public officials, charged with enforcing compliance with Aboriginal heritage conditions are those in the Department of Indigenous Affairs (“DIA”). However, the DIA’s submissions to the Functional Review Committee established to review the DIA’s performance[8], in 2006, stated (at 56-57)
[8] Submission by the Department of Indigenous Affairs to the Functional Review Committee Established
“Although in 2003 Parliament substantially increased penalties for damaging sites under the AHA, DIA’s capacity to respond to the priority placed on heritage protection is limited by lack of resources and on ground staff. Criticism is directed at DIA’s perceived failure to protect Aboriginal sites and to prosecute those who damage or destroy sites.
...
The imbalance between the resources required to protect Aboriginal sites in WA and the resources at DIA’s disposal are illustrated by the duties of DIA’s Senior Heritage Officer based in Broome. This officer is responsible for all heritage matters rising in the Kimberley, Pilbara and parts of the Murchison regions....
Similarly, although DIA attempts to monitor compliance by land owners and developers with the conditions of the consent given by the Minister under section 18 of the AHA, financial and human resources are focused on the government priority of progressing applications through the section 18 development approvals process. For example, new funding for DIA through the Keating Review process will enable the DIA employ to additional heritage staff, but these officers will be devoted to supporting the development process....
The results of the DIA’s inability to effectively monitor or enforce the State’s heritage protection regime is:....
· DIA is seen as an agency which facilitates the destruction of Aboriginal sites by developers and as incapable of effectively monitoring the conduct of developers;
...; and
· The risk that important heritage sites may be damaged or destroyed.”
30Again, no evidence has since emerged to suggest that this situation has changed.
31 In light of the above contention, the Native Title Party submits that the Government Party cannot properly contend that the presumption of regularity has any part to play in the Tribunal’s inquiry.
However, since I have found that the expedited procedure is not attracted, regardless of whether or not such a presumption applies and despite the Government party’s regulatory regime, it is not necessary to further consider the contentions on this point in this matter.
Weighing all these factors, and particularly the nature and extent of the sites of particular significance which have been identified and that the area of the proposed licence is site rich, I find that there is a real risk of interference with sites, even if inadvertent, unless negotiations under s 31 of the Act take place between the parties and agreement is reached about the doing of the future act or, in the absence of agreement, the issues relating to the effect of the grant on the registered native title rights and interests, including sites of particular significance, are fully explored by way of arbitral inquiry (ss 35, 38 of the Act). The grantee party is now on notice that a number of sites may exist in the area of the proposed licence, the exact location and extent of some of those sites is unknown to it, and unless there is close liaison between the native title party and grantee party through negotiation and agreement, I find there is a real risk of interference with them. This is a case where the site rich nature of the proposed licence area means there is a real risk of interference, and compliance with the AHA is not sufficient to make it unlikely that there will be no interference with a site of particular significance to the native title party.
The native title party questioned the adequacy of the State’s regulatory regime, including the effectiveness of the AHA. It is not necessary to address this contention further, given my comments above.
Major disturbance to land and waters (s 237(c))
No findings in relation to this topic are necessary as a determination that the expedited procedure is not attracted is justified by my findings in relation to s 237(b).
Determination
Having regard to the matters canvassed above, the determination of the Tribunal is that the grant of exploration licence E47/1818 to FMG Pilbara Pty Ltd is not an act attracting the expedited procedure.
Neville MacPherson
Member
29 November 2010
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