Miriuwung and Gajerrong People v The State of Western Australia

I have before me the applicant's claim for interlocutory relief which, if granted, will, among other things, prohibit, until the hearing of the action, further work on the pipeline within the area of the Gunggaris' native title claim. Throughout 1995, the State of Queensland and Tenneco Energy engaged in an extensive consultation process with representatives of Aboriginal groups, including the Gunggari, whose members live in the area through which this pipeline is to be constructed. In the course of this consultation process, all the Aboriginal clans or groups, including the Gunggari, with members living in the area of the pipeline route, agreed to the third respondent, the Goolburri Aboriginal Corporation Land Council, acting as their representative for the purpose of dealing with both the State of Queensland and Tenneco Energy. Various Gunggaris, including Mr Smith, have from time to time participated in activities of the Land Council directed to this end. The Gunggaris' involvement with Tenneco Energy was co-ordinated by the Land Council. It appears that Tenneco Energy has relied on the Land Council to identify who are the Aboriginal clan groups with traditional interests in the various areas through which the pipeline is to be constructed. Each clan group so identified has been involved by Tenneco Energy in both the planning and construction phases of the pipeline development. Each clan group has provided information to Tenneco Energy as to the location of sites of cultural and heritage significance to the particular group and Tenneco Energy has planned the pipeline route to avoid conflict with such sites. Mr Cheatham, the General Manager of the Tenneco Energy pipeline project, says that the applicant, Mr Smith, and three other elders of the Gunggari People performed what he calls this work of "the cultural heritage clearance of the pipeline route on behalf of the Gunggari". So far as I can gather from the evidence, the Gunggaris' interest was originally limited to the section of the pipeline to be constructed between about Morven and Amby, which is near Mitchell, ie, to about the central third of the pipeline that is now within the area the subject of their native title claim. They appear originally to have accepted that the eastern third of the pipeline in their claim area was in land with respect to which the Mandandanji clan were the traditional owners, while the western third was in Bidjarra land. The Gunggaris now claim native title over the whole of an area of about 70,000 square kilometres from roughly Injune in the north to Bollon in the south, and between Roma in the east and Charleville in the west. This area includes all three of these sections of the pipeline. According to Mr Cheatham and Mr Wetherall, a manager with the Land Council responsible for supervising its involvement in the pipeline project, Tenneco Energy also agreed with the Land Council on a cultural heritage management plan, the object of which is to establish procedures governing Aboriginal involvement in the construction of the pipeline, as well as the continued protection of Aboriginal cultural and heritage interests. The final draft of this plan was approved by representatives of all the clan groups, including the Gunggari People, in February 1996. Mr Smith does not dispute what Mr Cheatham and Mr Weatherall say. It was not until April that Mr Smith commenced the present action and claimed an interlocutory order that would prohibit completion of that part of the pipeline within the area of the Gunggaris' claim that remains to be done. This is plainly not a case in which native title claimants seek orders to prevent threatened action which is likely to extinguish their native title. Rather, it is a case in which the native title claimants seek an order that will prevent completion of a pipeline being built under a licence granted by the State Government as long ago as December last, in circumstances in which the now native title claimants supported and participated in the pipeline project, both prior to and subsequent to the grant of that licence, but have only recently changed their attitude to it. On the material before me, the native title claim lodged by Mr Smith on behalf of the Gunggari People appears to have its genesis in a dispute that has only fairly recently arisen and which involves the Land Council and the Bidjarras. In January of this year, the Land Council advised Tenneco Energy of what it considered to be the traditional owner boundaries along the pipeline route. This advice indicated that it was not the Gunggaris who were the traditional owners of the lands between Morven and Amby, but rather the Bidjarras. As I read the affidavit of the expert anthropologist retained by the Gunggaris, Ms Eckermann, there appears to be some anthropological evidence that tends to support the Bidjarras' claim to the segment of the area the subject of the Gunggaris' native title claim to the west of Morven, ie, between Morven and Charleville. Ms Eckermann locates the western limits of the Gunggaris' area in the region of Morven, although she does comment on evidence suggesting that the Gunggaris may once have occupied territory much further west, from which they were displaced by a process of colonisation to the east. I understand colonisation in this context to mean colonisation by competing Aboriginal clan groups, such as the Bidjarras. But the Land Council decision has had an immediate detrimental impact on the Gunggaris' interest in the pipeline project. Following settlement of the Cultural Heritage Management Plan in March 1996, the Land Council entered into what is called a retainer agreement with Tenneco Energy. It appears that, under this agreement, the Aboriginal clan groups with interests in lands along the pipeline route are involved in the construction process, in the capacity of what are called "traditional monitors" of construction work. Tenneco Energy, under the retainer agreement, funds the Land Council for this work. The Land Council, in turn, disburses these funds to members of the Aboriginal clan groups who perform the monitoring work. While members of some of the Aboriginal clan groups appear to have received substantial payments for this work so far, little to date has been received by members of the Gunggari People. The Land Council's decision, to identify the Bidjarras as the clan group with traditional interests in the area within the Gunggaris' native title claim lying between Morven and Amby, appears to be the source of the Gunggaris' disenchantment with the project in which, up until then, they had participated. It is this Land Council decision which appears to have provoked the Gunggari People into making their recent native title claim, which includes the lands which they had previously been content to leave to the Bidjarra and Mandandanji Peoples. Pipeline construction commenced outside the Gunggaris' claim area in December 1995. It appears that construction work was commenced and carried through to completion in the eastern third of the area, now the subject of the Gunggaris' native title claim, ie, the section they were originally content to leave to the Mandandanjis, without any objection from the Gunggaris. The first Gunggari objection to the pipeline project came in early February, ie, soon after the Land Council decision in favour of the Bidjarras. In early February, Tenneco Energy was about to commence construction in the central part of the Gunggaris' native title claim area, which has become the subject of the dispute between them and the Bidjarras. The Land Council, at that point, arranged for monitoring of the pipeline construction to be handed by Tenneco Energy from the Mandandanji Aboriginal clan group to the Bidjarras, rather than to the Gunggaris. This produced bitter protests from Mr Smith on behalf of the Gunggari Peoples. They established a protest camp on the pipeline route. This protest was, however, directed at the Bidjarras and the Land Council, not at Tenneco Energy. The Gunggaris indicated to Tenneco Energy that they did not object to the pipeline construction continuing. The pipeline construction work in this central third section of the pipeline now within the Gunggaris' native title claim area proceeded thereafter for a time, with the consent of the Gunggaris. Relations between the Land Council and the Gunggaris, however, broke down and the Gunggaris, in late February, withdrew the authority of the Land Council to deal with Tenneco Energy on their behalf.