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Editors --- "Re Ngarinyin Community - Case Summary" [1996] AUIndigLawRpr 48; (1996) 1(2) Australian Indigenous Law Reporter 232

Re Ngarinyin Community

National Native Title Tribunal (Kim Wilson, Member)

21 December 1995, Perth

Aborigines and Torres Strait Islanders -- Native title -- Notice of proposed future act -- Right to negotiate -- Inquiry into whether proposed act attracts the expedited procedure -- Native Title Act 1993 (Cth), s. 237 -- Whether proposed act would affect Aboriginal sites of significance -- Adequacy of Aboriginal Heritage Act 1972 (WA) in protecting sites of significance.

The Western Australian government proposed to grant five exploration licences to Astro Mining NL. In accordance with s. 29 of the Native Title Act 1993 (Cth) (`NTA') notice was given of the intention to issue the licences. The notice included a statement that the act attracted the expedited procedure and was therefore not subject to the right to negotiate under the NTA. The applicants are native title claimants whose claimed land is affected by the proposed licences. The applicants objected to the inclusion in the notice of the statement that the expedited procedure applied on the basis that the proposed act may directly interfere with community life, may interfere with areas and sites of significance and the act may involve a major disturbance to land.

Held:

(1) The grant of the exploration licence did not attract the expedited procedure.

(2) There was a likelihood that the sites of significance would be interfered with by the issuing of the proposed licences. Re Waljen People distinguished.

The background

The State of Western Australia (the government party) gave notice in accordance with section 29 (4) of the Native Title Act 1993 of its intention to grant exploration licences E4/985, E4/986, E4/987, E4/988 and E4/989 to Astro Mining NL (the grantee party) and in giving that notice the government party included a statement that it considered the acts to be such that attract the expedited procedure.

The areas of land that are covered by these exploration licences are within a larger area of land which forms the land subject of a native title claim which was accepted on the 29 July 1995 on behalf of the Ngarinyin people.

Following the publication of this notice David Mowaljarlai, Laurie Cowenulli, Paddy Neowarra and Paddy Woma on behalf of themselves, their family groups and the Ngarinyin people lodged an objection with the National Native Title Tribunal to the expedited process. Once this occurred the usual procedures were initiated within the Tribunal for the lodgement of the documentary material and the delineation of the issues in accordance with the previously published directions of the Tribunal in relation to these future act matters.

In this matter there was preliminary determination by the Tribunal constituted by the Hon. Chris Sumner in relation to whether or not the failure to notify the government party of the receipt of the objection affected the role of the Tribunal in relation to the exploration licences E4/986-989 which were issued without receipt by the government party of the notification.

On 15 September 1995 after a preliminary hearing Mr Sumner ruled that those exploration licences were not validly granted by the State as the objecting party had made its objection and despite the unfortunate circumstances of the notification not been passed to the government party this did not affect the fact the objection had been validly lodged.

This matter has proceeded on the basis that the Tribunal considered it appropriate to hear evidence and submissions in relation to all of the exploration licences referred to above. The position of the government party has been that it maintains the validity of the exploration licences which have proceeded notwithstanding the determination by the Tribunal. I have taken the view that the matters concerned in relation to this application as they involve the one grantee party are relevant and appropriate to each of the exploration licences referred to above.

During the course of the preliminary proceedings the objecting party had engaged two different lawyers and by the time the matter came on for hearing they had withdrawn their instructions from their lawyers and had notified the Tribunal that they wished to proceed without legal representation.

On 22 November 1995 a hearing was held at Prap Prap at which evidence was given by a number of members of the objecting party in relation to the land covered by the exploration licences and also more generally in relation to the land the subject of the native title claim.

The government party attended the hearing but only in relation to exploration licence 4/985. The grantee party did not attend the hearing but was able to inspect documents in Perth and was able to listen to the tape recording of the hearing. The objecting party attended the hearing.

Following the hearing further time was given on the application of the objecting party and the grantee party to allow further material to be lodged. There was an application by the government party for an extension within which to lodge submissions which was granted and the submissions were received by 12 December 1995.

The issues

In this matter the major issue being considered by the Tribunal is the question of whether the expedited procedure should apply in the context of the provisions of section 237 of the Act which provides that acts which do not directly interfere with community life and acts which do not interfere with areas or sites of particular significance in accordance with the traditions of the native title holders in relation to land or water and acts which do not involve major disturbance to any land or waters are acts which attract the expedited procedure.

Whilst the objecting party did make some submissions in relation to the disturbance to community life I do not find it necessary to make any finding in respect of that matter nor in relation to the aspect of the matter involving major disturbance to any land. The critical issue in this inquiry has been that relating to the provisions of section 237 (b) in assessing whether there is direct interference with areas or sites of particular significance in accordance with the traditions of the native title holders in relation to the land.

The facts

The main documentary material of relevance to the issue in this inquiry was contained in a letter dated 15 November 1995 from the Aboriginal Affairs Department which had responded to a request for a list of registered sites located within the proposed exploration licence E4/985. This report indicated that the search by the Department showed that there were no listed Aboriginal sites known to the Department within that particular exploration licence. The report did indicate however that very close to that exploration licence there are number of listed mythological, painting and burial sites.

The report went on in the usual matter [sic] to indicate that its report is not a complete or comprehensive detailing of Aboriginal sites or areas of importance to Aboriginal people within the indicated area.

The letter from the Department included its standard advice it gives to people who request such information that its recommendation is that persons interested in carrying out any activities on these lands engage suitably qualified consultants to conduct ethnographic and archaeological surveys of the area. It goes on to say that people with these interests should ensure that all Aboriginal interest groups are consulted so that all sites on the designated land are avoided or identified.

At the hearing at Prap Prap further material was provided by way of a large laminated map which had indicated on it a series of sites throughout the claim area and some of these sites were within or adjoining that of the exploration licences. Evidence was given at the hearing of the importance of these sites in the overall structure and maintenance of the spiritual, cultural and land related interests of the Ngarinyin people in respect of their lands. Various sites were identified and spoken of and in particular the relationship of all sites to the area was highlighted. The Ngarinyin believe that all of their sites throughout this country are interlinked and interference with one has effects on the others. Whilst they acknowledge that some sites have been identified this has occurred largely by a co-operative process with people who are prepared to provide the resources for mapping and identification of sites and all of this has been carried out with the co-operation of elders from the Ngarinyin area.

Their clear evidence however was that there are many sites which have not been identified and that their major concerns, apart from the obvious concern about interference with sites that are in some cases clearly ascertainable, was that other areas which have not been mapped or identified could be interfered with. Of equal concern was the whole concept of activity of any type without their knowledge and without being directed under an umbrella of understanding in relation to the linkages of all the sites throughout the area.

This particular area of country has been well recognised in the public arena as being an area which has many traditional features and where Ngarinyin concerns have been expressed over many, many years. There has been a series of publications dealing with various parts of the country and history of the people particularly in relation to the system that applies throughout the land and the interconnectedness of the various sites in relation to the responsibilities that the Ngarinyin have in relation to caring for this land (see eg, Yorro Yorro -- Spirit of the Kimberley).

Both David Mowaljarlai and Laurie Cowenulli gave eloquent testimony in relation to what the Tribunal would refer to as the grid system of sites that interlock throughout this country. Evidence was also given that a great deal of research and survey work had been done by the Western Australian Museum and various scientific libraries but that the Ngarinyin did not get that information as most of it over the years had been gathered and archived. Evidence was also given that the details of sites which are apparent by looking at the information which has been set out in the report of the Aboriginal Affairs Department and other material contained on the large laminated map which was used during the hearing that it would be significantly different if all of the sites were identified and marked. It would show a complex and crisscrossing series of important sites and areas in respect of the whole of the land which would flow over and into all of the areas subject to the exploration licence applications.

Great concern was expressed by the objecting party in relation to their responsibilities to the whole of this country and the fact that for any activity to take place it would create a disturbance to them due to the significance of this area in accordance with their traditions and their way of life. In particular relating to their spiritual understanding and the responsibilities and connection they have with this land which they consider to be governed by their law and customs.

On the basis of the evidence provided to the Tribunal both in the context of documentary evidence and oral evidence given at Prap Prap the Tribunal finds that there are areas and sites of particular significance in accordance with the traditions of the Ngarinyin people in relation to the land which is the subject of these applications. In this finding it is important that it is understood that in this particular matter whilst certain sites have been identified and spoken of the Tribunal has come to the view on the basis of the evidence provided that the area of the Ngarinyin claim is an area of particular significance because of the traditional attachment with that land and the practice and understanding that the Ngarinyin elders have exhibited in the course of this inquiry. This view of the significance of these areas is based on a conclusion on the balance of probabilities in relation to evidence provided by the objecting party.

The evidence accepted into this inquiry apart from the matters referred to so far in these reasons is constituted by a series of documents which have been agreed between the parties to be accepted as evidence in this inquiry. These include previous evidence given in other inquiries from the Mines Department and Aboriginal Affairs Department and transcripts of other hearings dealing with the regime and process undertaken by the government party in relation to these matters.

Before concluding these findings the Tribunal also notes that the objecting party indicated in evidence that they would be quite prepared to negotiate with the grantee party in relation to these matters. And also that Astro Mining NL has indicated that it has a commitment to negotiating with the objector parties in relation to access to the land and the protection of identified sites and importantly to ensure that whatever activities are carried out are done within an understanding of the Ngarinyin Law that applies in relation to these areas.

Conclusion

The submissions of the government party and the grantee party both mention the desirability of an agreement being made with the objectors in relation to any proposed work on this area of land. The desirability of this process is in the Tribunal's view an indication of the significance of the matters which were disclosed in the course of the inquiry.

The government party maintains its position that the voluntary system which operates in relation to compliance with the legislation which penalises anyone who interferes with the site should be relied on and that the enhanced guidelines which are now issued in relation to exploration licences provide sufficient assurance that areas or sites of particular significance will not be inferred with.

Both the government party and the grantee party rely on two decisions of the Tribunal constituted by the Hon. Paul Seaman QC Deputy President in the matter of the Waljen Peoples concerning application WO95/2 and WO95/17 [Re Waljen People, page 227 in this issue]. In both those matters whilst particular findings in relation to sites of significance were not made, the learned Deputy President commented that "But if there had been evidence of that there were sites of particular significance in accordance with the Waljen traditions on the land I would have reached the same conclusion for the following reasons." This comment was made in the context of the decision that the application did attract the expedited procedure and the learned Deputy President went on to distinguish what he had said in Re Irruntyju-Papulankutja [page 222 in this issue] by referring to the evidence that he had about the new guidelines and warnings to grantee parties.

Whilst I am mindful of the comments of the learned Deputy President I do not consider that he was determining all applications that would be made in the context of these provisions. The effect of such a principle would be that the Tribunal would be making a blanket decision in relation to all objections to the expedited process concerning s. 237(b). The structure of the Native Title Act 1993 and in particular the fact that the Act clearly contemplates a process of negotiation which could be applied in relation to exploration licences (see s. 35). The Act also contemplates that certain types of acts such as exploration licences could be excluded from the operation by a declaration by the Minister and this has not been done. I do not consider that it is appropriate for the Tribunal to decide these matters in such a way that it would result in particular matters not being decided on their own merits and circumstances.

I have been very mindful in the context of this inquiry that to date there have not been any applications which have been determined not to attract the expedited process. I am also concerned that in an appropriate case a native title holder should be able to consider that the expedited process would not be appropriate and that a finding to the effect would lead to negotiation for the type of agreement which in this case has been suggested by both the native title holders and the grantee party.

The experience of the Tribunal to date has been that overwhelmingly the expedited process has been implemented and there have only been a small number of cases where objections have been lodged.

In the particular circumstances of this case this decision should be seen in its own context and as being appropriate to the circumstances revealed by the evidence which I have set out above. In matter of WO95/18 which was an objection by Ted Coomanoo Evans on behalf of the Koara Peoples a great deal of evidence was led by the State in relation to its processes concerning the expedited procedure. By agreement of the parties the transcript of those proceedings amongst others was taken into evidence in this inquiry. In the context of that matter I sought submissions from the State party as to whether in its view the expedited process could ever operate. In a very fair and lucid submission Mr Humphrey who was acting for the State party said that if in a particular matter there was evidence before the Tribunal of special significance in developing a whole area or a good part of the area the Tribunal may well reach the conclusion that the boundaries would not be clearly identified and there may be some uncertainties. In such a case the Tribunal may take the view that the best outcome would be for people [to] get together and talk and reach an agreement. He went on to say that it would not be a case for expedition. He also said that where there is not that sort of evidence then the Tribunal should rely on the protection that is provided under the statutory mechanism. I have taken the liberty of paraphrasing Mr Humphrey's submissions in the context of this determination and as I indicated I think these submissions represent a fair and measured response and do identify some of the circumstances where the expedited process may not be appropriate.

In the submissions in this matter the State party indicated its view that the Tribunal should only depart from the principles set out in the Waljen decision in exceptional circumstances.

In my view the particular circumstances of each objection are important to be considered in the context of the statutory regime from which they arise. In the circumstances of this particular case I have come to the view that the area which is involved in these exploration licences is part of an area which is an area of particular significance in accordance with the traditions of the Ngarinyin people. I have carefully considered the evidence and I have concluded that there is a likelihood that those areas of particular significance may be interfered with albeit in good faith. I have weighed the interests of the objecting party in the context of its traditional beliefs and I have come to the conclusion that in this particular case the expedited process would not be appropriate. As I have indicated earlier because of the circumstances relating to the area which is subject to the claim I would observe that similar circumstances should apply to any exploration activities on any of the land that is covered by native title claim WC95/23.

I am fortified in the view I have come to in this matter by what I consider to be the eminently appropriate approach by the grantee party who indicated that it wishes to make it clear that it intends to comply with the Aboriginal Heritage Act of Western Australia and not carry out any exploration works in a manner which may interfere with areas or sites of significance to Ngarinyin people according to their traditional laws and customs. In a statement to the Tribunal by Mr Hayden Barry, a Director of the company, he also states that "I understand that the Ngarinyin Law Men wish to meet with senior representatives of the management of Astro Mining NL to discuss and explain the Ngarinyin Law and culture and the proper way to behave and to carry out exploration work in their country. Astro Mining NL intends to send senior representative[s] of the company with the authority to act for Astro Mining NL to meet with the Ngarinyin Law Men in Derby at a suitable to time [sic] to be arranged in order to learn from the Ngarinyin law men and to discuss whether exploration work can be carried out and how it should be carried out so as to comply with laws and traditions of Ngarinyin people in the event that exploration licences are allowed to be issued."

Mr Barry goes on to say that his staff and contractors will be instructed not to carry out any exploration work on the land which is the subject of the exploration licence applications until satisfactory arrangements can be made to prevent any interference with sites or areas of significance or with community life.

While these statement were made in the context of a broader submission on behalf of Astro Mining NL that the Tribunal should come to a decision that the expedited process should apply, I consider that they indicate a concern by the company that the traditions of the Ngarinyin people should be respected in the context of their proposed activities.

The fact the expedited process will not apply will mean that such an agreement will now be negotiated prior to the issuing of the exploration licence.

As stated earlier, the Tribunal's view is that the exploration licences E4/986-989 were invalidly issued. I therefore consider it necessary for the process of negotiation to encompass those areas as well. As a matter of common sense I am sure that the parties will negotiate the matter in such a way that the concerns of the objector parties are met and given the attitude of the company to date I have no doubt that this will be done in an appropriate and responsible way.

Determination

For the reasons set out above I have determined that the acts under consideration in this inquiry are not acts attracting the expedited procedure. Therefore, in accordance with Section 32(5)(a) I request that the government party and the grantee party negotiate in good faith with the native title party. In accordance with Section 32(5)(b) the Tribunal offers to mediate such negotiation.