Ground 5 and ground 6 in WAD 161 of 2009 and ground 6 in WAD 168 of 2009
127 For each of the appeals, the Yindjibarndi submit that the Tribunal erred in law by drawing erroneous inferences from erroneous findings.
128 In ground 5(a) of WAD 161 of 2009, the Yindjibarndi submit that the Tribunal erred in law in finding that the destruction or interference with sacred stones was highly unlikely.
129 What the Tribunal said on this topic (at [68], [69] and [72]) was as follows:
[68] The grantee party has provided, in its documents GP57 - GP59 three reports for archaeological surveys of the area which were conducted with the assistance of the Yindjibarndi People. I have read those reports carefully and I do not believe that there is any reference within them to the Gandi talked about in Mr Woodley's affidavits. It might well be argued it is not surprising that no reference has been made to the stones in those reports, as the Gandi Mr Woodley refers to appear to be scattered at random across the landscape and the Yindjibarndi People participating may not have been required to volunteer all information about areas that they were not specifically requested to address. It also might well be argued that as the purpose of the reports were archaeological rather than ethnographic, the Yindjibarndi's current use of the area may have been beyond the scope of the reports. The reports do identify a significant number of areas which are both of archaeological and ethnographic importance and recommend that certain sites be avoided or to the extent that they are to be interfered with, that prior consultation take place between the Yindjibarndi and the grantee party. Significantly, a map produced by the grantee party outlining areas where Aboriginal heritage has been identified, has been attached to material provided by the grantee party (GP61). A further report discussed below deals with other sites within the proposed lease area which is the subject of consideration in relation to sites of particular significance later in this determination, being 'ACHM Project Advice' dated 21 May 2009 (NTP9).
[69] The Government party contends that there is little evidence provided by the native title party to the effect that there will be an impact on freedom of access and the conduct of ceremonies. It again refers to the native title party document, NTP4, being the s 31 submission to the Government party, where at 9.1 it is suggested
'the grant of the mining leases without a negotiated agreement concerning the terms of access by a stranger to their religious domain, will prevent the Yindjibarndi People from carrying out their religious obligations and will thus undermine the sacred principle of reciprocity.'
The Government party contends that even if this did establish that there was some affect on the freedom of access and interference with the conduct of ceremonies, there is no specific evidence in relation to that impact on the area of the proposed lease. The Government party also contends that the first of the extra conditions will ensure that the Yindjibarndi will be able to continue to maintain access to the area of the proposed lease, except insofar as it interferes directly with mining operations. My impression of the evidence from the native title party is that Gandi can be found throughout Yindjibarndi country, including those areas within the proposed lease, but by no means limited to that area. If the Gandi were to be destroyed or interfered with there may well be impact on the capacity of the native title party to conduct ceremonies. However, in my view such destruction or interference is highly unlikely. I have come to that view because the grantee party has conducted comprehensive surveys of the land which has resulted in a considerable amount of information relating to the location of sites and artifacts within the area of the proposed lease and which recommends that no interference could occur without compliance with the AHA requirements and in consultation with the Yindjibarndi. I have been provided with no evidence to suggest that the grantee party will not continue to ensure that it abides by the recommendations that have previously been provided to it, including the need for further consultation with the Yindjibarndi before any mining activities are undertaken. The discussion below relating to s 39(1)(a)(v) is, in my view, directly linked to the question of access for ceremonial purposes and needs to be considered before I can reach conclusions about the extent of the impact of the grant of the proposed lease.
…
[72] The caves, as well as a number of other sites and archaeological scatters, have been identified in the three reports that have been provided by the grantee party in its documents (GP57, GP58 and GP59). The place where the Gandi stones are collected has not been documented in those reports. Mr Woodley, in his first affidavit, says at 3.12
'One of the places where we go each year to collect Gandi is in the area that will be affected by the M47/1413 Tenement that FMG wants'
If there is a specific place where the Gandi stones are found, that place should have been identified in at least one of the three reports conducted by the archaeological consultants on behalf of the grantee party and with participation from members of the native title party. If it was not, it should be in the future and, presumably, it will be protected. As I have said earlier, it appears that the Gandi are found across the Yindjibarndi land. It is not clear to me whether they are scattered randomly across that country, or found in individual localised pockets which can be identified and protected. If it is the former, there may be significant difficulties for the grantee party in overcoming the requirements of the AHA. However, the evidence before me currently, specifically in relation to the proposed lease, is that there is one place within that area where the Gandi are collected. I am concerned about the anomaly created by Mr Woodley's evidence of the collection of the Gandi on various areas, including the proposed lease, but there being no mention of Gandi in any of the reports. I am prepared to conclude that the numerous caves that Mr Woodley talks about are sites of particular significance to the native title party. The evidence in relation to the Gandi on the proposed lease is insufficiently specific for me to make a determination one way or the other as to their locality, albeit that I accept that if there are Gandi in the vicinity, they are no doubt of particular significance to the Yindjibarndi. (emphasis added)
130 The Yindjibarndi also assert that the Tribunal erred in law by making an erroneous finding:
that the grantee party had conducted comprehensive surveys of the land in respect of Aboriginal sites and artefacts, when the evidence demonstrated that only specific drill lines had been investigated to ensure that FMG's exploratory drilling did not impact upon the Applicant's sites or artefacts.
131 The Yindjibarndi focuses on the word 'comprehensive'.
132 The Yindjibarndi object to the inference said to be drawn that the sacred stones 'appear to be scattered at random across the landscape'. It is submitted that there was no evidence on which the Tribunal could reasonably draw the inference that if there is a specific place where the Gandi stones are found, that place should have been identified in, at least, one of the three reports conducted by the archaeological consultants on behalf of FMG and with participation from members of the native title party. The first two archaeological reports were, as the Tribunal noted, reports on Work Program Clearances and the third was a report on a block survey in which, contrary to the finding of the Tribunal, there were no Yindjibarndi participants.
133 Accordingly, the Yindjibarndi submission is that the Tribunal erred when it rejected a submission to the effect that when Mr Woodley states that stones have to be collected annually from specific areas for specific purposes, he implicitly states that they are required to be collected from those areas and no other areas. The Tribunal rejected that submission on the basis that Mr Woodley had stated in his affidavit evidence that 'one of the places where we go each year to collect Gandi is in the area that will be affected by the M47/14113'. The Yindjibarndi consider that the Tribunal erred in rejecting that submission in light of evidence from Mr Woodley concerning the Galharra which was uncontested and which was to the effect that:
… every year before we put our boys through the Birdarra initiation ceremonies, I and other Lawmen must travel to various Ngurra (kin places) in Yindjibarndi country to collect Gandi (sacred stones). These stones were put in the country by Minkala and the Marrga told us that these are the only stones we can use in the ceremonies. There are four songs that we sing, to get permission from the Marrga to find, take and use the Gandi. Those particular songs are secret so I can't write them down.
One of the places where we go each year to collect Gandi is in the area that will be affected by the M47/1413 Tenement that FMG wants and if FMG is allowed to mine that tenement in the way it says it will destroy the Gandi that are located there. The important point I want to make is that, even though that is our country, we can't just go and dig up the Gandi; we must first get permission from the Marrga.
134 Mr Woodley went onto explain that Ganyjingarringunha is a river that runs through Gambulanha and Ganyjingarringunha Yaayu is the eastern part of this river which runs straight through the middle of the proposed MLA M47/1413. He observed that the particular area of the Ganyjingarringunha Yaayu Wundu 'is where, each year, we collect the sacred Gandi for use in our Birdarra Law ceremonies'.
135 The Yindjibarndi also raised submissions concerning the Tribunal's inferences in respect of ochre sites but abandoned these on appeal.
136 Ground 6(d) refers to findings reached in respect of the future protection of Aboriginal sites. The first finding (at [76]) was to the effect that the AHA operates in such a way as to provide for the protection and preservation of a wide range of Aboriginal sites and objects. At [76], the Tribunal said:
The Tribunal has, on numerous occasions, considered the protective provisions of the AHA. I adopt the Tribunal's findings in Waljen on this topic (at 209-211). I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner at [33]-[38], [40]-[41] and other cases referred to therein which describe the regulatory regime for the protection of sites. In summary, the AHA provides for the protection and preservation of a wide range of Aboriginal sites (s 5) and objects (s 6). It is an offence to excavate, destroy, damage, conceal, or in any way alter any Aboriginal site (whether on the Register or not) (s 17) without authorisation (s 18), and that offence is punishable by fine, imprisonment, or both. If Ministerial consent to disturb a site is sought under s 18 of the AHA, the Aboriginal Cultural Materials Committee ('ACMC') requires the applicant to outline the nature and extent of consultation with key Indigenous stakeholder groups (which include native title parties), outline strategies to minimise impacts on sites and complete a declaration that it has read and understood any heritage survey report tendered in support of the application. Applications will not be considered by the ACMC until sufficient information has been submitted by the applicant.
137 As against this, the Yindjibarndi point to the fact that in June 2006, the Department of Indigenous Affairs (DIA) publicly declared that as a result of the human and financial resources within DIA being focussed on the Government priority of progressing applications through the s 18 development approvals process, it was unable to effectively monitor or enforce the State's heritage protection regime. This was said to have created the risk of important heritage sites being damaged or destroyed.
138 The Yindjibarndi contend that because these documents are part of the public record, the Tribunal ought reasonably know of their contents and therefore the first finding that the risk of danger to the sites was minimal was unreasonable.
139 A further finding attacked was the acceptance by the Tribunal that FMG would understand its obligations under the AHA and that it has complied with them to date. The Tribunal went on to say (at [78]) that it was satisfied that FMG would continue to do so and take whatever action was necessary to avoid interference with sites of particular significance to the Yindjibarndi in accordance with their traditions. This finding was also said to be manifestly unreasonable because at the time when the Tribunal made its finding it held it had been given a letter from the Yindjibarndi Aboriginal Corporation to FMG which referred to the unauthorised incursions made by FMG when they bulldozed a significant Aboriginal site which had been surveyed by the Yindjibarndi heritage team who had directed FMG not to disturb the site.
140 As a starting point in relation to these grounds, the power to make orders under s 169(6) NTA is broad, but an 'appeal' may be on a question of law only. Subject to any specific legislative provision authorising the Court to make factual findings, where the subject matter of the appeal is a question or questions of law the Court is not authorised to determine any matter of fact for itself. The nature of the statutory right of appeal indicates a legislative intention that the final arbiter of factual disputes should be the primary decision making tribunal or body so it would be to usurp the functions vested by Parliament in the Tribunal if the Court were to review a determination by the Tribunal on the ground of the weight given to certain items of evidence.
141 'Erroneous inferences' and 'erroneous findings' can constitute an 'error of law'. But this is only in limited circumstances. Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 355-356) said (footnotes omitted):
The question whether there is any evidence of a particular fact is a question of law ... Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law ... This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions ... So, in the context of judicial review it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.
…
But it is said that '[t]here is no error of law simply in making a wrong finding of fact' ... Thus, at common law according to the Australian authorities, want of logic is not synonymous with error of law So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
142 None of the 'erroneous findings' in either matter is expressed in terms of a finding made without evidence. Ground 6 simply asks the Court to weigh evidence. This is not permissible on an appeal on a question of law.
143 In relation to the comprehensive survey complaint, what the Tribunal was satisfied of the 'considerable amount of information' resulting from the surveys, and the recommendations of the surveys. This finding was open.
144 FMG did commission multiple surveys over the relevant areas. At least some of these surveys involved representatives of the Yindjibarndi. Evidence was available on which the conclusion could properly and reasonably have been based. If the Tribunal gave undue weight to the evidence, that does not constitute an error of law.
145 In relation to the complaint the Tribunal erred when it made the finding that the AHA would have a protective effect, the Tribunal did not find that 'any sites that are subsequently identified in the proposed lease could be protected under the Aboriginal Heritage Act'. Rather, it took into account the protective regime consisting of the AHA and other Government measures. This was entirely appropriate.
146 The Yindjibarndi say this finding was 'unreasonable' because of the existence of a document entitled 'Submissions of the Department of Indigenous Affairs ('DIA') to the Functional Review Committee established to review DIA, dated June 2006 at 58,107 and certain decisions of the Supreme Court.
147 The argument as to 'unreasonableness' cannot be accepted. The Yindjibarndi have not demonstrated any 'irrationality or illogicality' in the way in which the Tribunal reached its decision. The document referred to by the Yindjibarndi was not in evidence before the Tribunal.
148 This ground is not made out.