Angelina Cox & Others on behalf Puutu Kunti Kurrama and Pinikura 2/Western Australia/Pickaxe City Pty Ltd - [2012] NNTTA 40

NATIONAL NATIVE TITLE TRIBUNAL

Angelina Cox & Others on behalf Puutu Kunti Kurrama and Pinikura 2/Western Australia/Pickaxe City Pty Ltd, [2012] NNTTA 40 (24 April 2012)

Application No: WO11/363 and WO11/537

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Angelina Cox & Others on behalf Puutu Kunti Kurrama and Pinikura 2 (WC05/4) (native title party)

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The State of Western Australia (Government party)

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Pickaxe City Pty Ltd (grantee party)

DETERMINATION THAT THE ACTS ARE ACTS ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Ms Helen Shurven
Place:  Perth
Date:  24 April 2012

Catchwords: Native title – future acts – proposed grant of exploration licences – expedited procedure objection applications – 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 attracted

Legislation:Native Title Act 1993 (Cth), ss 29, 109, 146, 148(b), 151, 237
Mining Act 1978 (WA) ss 20(5), 63
Aboriginal Heritage Act 1972 (WA) ss 5, 17, 18, 62

Cases:Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibra [2008] NNTTA 127
Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield [2012] NNTTA 27
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15
Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22
Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65
Parker on behalf of The Martu Idja Banyjima People v Western Australia [2007] FCA 1027
Parker v Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175
Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18
Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24

Western Desert Lands Aboriginal Corporation v State of Western Australia and Others (2008) 218 FLR 362; [2008] NNTTA 22

Representative of the

native title party: Ms Lea Notte, Yamatji Marlpa Aboriginal Corporation

Representatives of the Mr D McCloskey and Ms A Warren, State Solicitor’s Office

Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party: Mr Greg Abbott, M & M Walter Consulting

REASONS FOR DETERMINATION

On 15 December 2010 and 12 January 2011 respectively, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licences E08/2216 and E08/2217 (‘the proposed licences’) to Pickaxe City Pty Ltd (‘the grantee party’). The Government party included in each notice a statement that it considered the grants attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).
E08/2216 comprises an area of 113.77 square kilometres located 127 kilometres southeast of Onslow in the Shire of Ashburton. It is overlapped by the registered claim of the Puutu Kunti Kurrama and Pinikura 2 (WC05/4 registered from 15 August 2006) at 80.1 per cent and the Thalanyji Native Title Determination Area (WC99/45) at 19.9 per cent.
E08/2217 comprises an area of 38 square kilometres located 96 kilometres southwest of Pannawonica in the Shire of Ashburton. It is 100 per cent overlapped by the registered claim of the Puutu Kunti Kurrama and Pinikura 2.
On 30 December 2010, the Buurabalayji Thalanyji Aboriginal Corporation, the Prescribed Body Corporate for those portions of the Thalanyji Native Title Determination Area in which native title exists, made an expedited procedure objection application to the National Native Title Tribunal (‘the Tribunal’) in respect of E08/2216 (designated Tribunal application number WO10/1743).
On 31 March 2011 and 12 May 2011, the Puutu Kunti Kurrama and Pinikura 2 made expedited procedure objection applications to the Tribunal in respect of E08/2216 and E08/2217 (designated Tribunal application numbers WO11/363 and WO11/537 respectively).
The Hon C J Sumner was appointed as the Member for the purpose of conducting inquiries into the applications and in accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and evidence to determine whether or not the expedited procedure is attracted, and preliminary conferences were subsequently held. The directions allow a period from 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.
On 29 September 2011, objection application WO10/1743 lodged by the Buurabalayji Thalanyji Aboriginal Corporation was dismissed under s 148(b) of the Act for failure to proceed with the application within a reasonable timeframe and comply with a direction by the Tribunal.
In relation to objection applications WO11/363 and WO11/537 lodged by the Puutu Kunti Kurrama and Pinikura 2 (‘the native title party’), preliminary conferences were held on 3 May and 14 June 2011, at which the grantee and native title parties reported they would consider negotiating an agreement. Between 10 August and 9 November 2011, status conferences for both matters were held at which a number of extensions to directions were sought in order to attempt to resolve the matters via agreement. At the adjourned status conference held on 23 November 2011, the native title party representative advised the Tribunal and parties that the native title party wished the matters to proceed to an inquiry before the Tribunal.
The Government party lodged Department of Mines and Petroleum (‘DMP’) documentation on 18 July (E08/2216) and 30 August 2011 (E08/2217) and contentions on 29 July (E08/2216) and 1 September 2011 (E08/2217). Following a number of further amendments to directions which were requested by the native title party’s representative, the native title party lodged the statements of Mr Mitchell Drage on 1 February 2012 and Ms Margie Hughes on 20 February 2012. The grantee party lodged its statement of contentions for both matters on 19 March 2012.
On 22 March 2012, a Listing Hearing was held at which the Government party requested leave to lodge a response to the native title party’s submissions, doing so on 23 March 2012. Neither the grantee nor the native title party sought leave to reply to the Government party’s response.
On 4 April 2012 I was appointed by Hon C J Sumner as the Member for the purpose of conducting the inquiry. I have reviewed the submissions by the parties and, with reference to s 151 of the Act and I consider it appropriate to make a determination ‘on the papers’ without a further hearing.

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.’

With respect to the limits of the Tribunal’s expedited procedure powers, I note the Tribunal’s observations in Western Desert Lands Aboriginal Corporation v State of Western Australia and Others (2008) 218 FLR 362; [2008] NNTTA 22 at [22]-[24], and [38]–[40], namely that the Act does not distinguish between registered native title claimants or determined holders of native title in the operation of the expedited procedure.
In Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, Hon C J Sumner considered the applicable legal principles (at 439-449, [7]–[23]) and I adopt those findings for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the Tribunal’s findings in Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22 (‘Tarlpa’) at [10]-[16].
In relation to determining s 237(a), I adopt the following findings from Tarlpa:
·History and interpretation of s 237(a) as amended (at [57]-[64]).
·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted’.
·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of The Martu Idja Banyjima People v 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 Western Australia and Others (2008) 167 FCR 340; (2008) 245 ALR 436; (2008) 101 ALD 28; [2008] FCAFC 23; [2008] ALMD 5175).
The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters or create rights which might entitle the grantee party to do so (see Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243; [2006] ALMD 2977 (‘Little’)). The correct approach to be taken to this limb of s 237 was outlined by the Full Court in Little at 588-589 where it held that the Tribunal was wrong to approach s 237(c) on the basis that major disturbance should be determined by reference to what could be done rather than what was likely to be done.

Evidence in relation to the proposed acts

Government party Tengraph Quick Appraisal documentation for E08/2216 dated 12 July 2011 establishes the underlying land tenure as follows:
·Nanutarra Pastoral Lease 3114/1096, 82.4 per cent overlap
·Common Reserve CR 9701 - De Grey Mullewa Stock Route, 17.2 per cent overlap
·Glen Florrie Pastoral Lease 3114/1014, 0.1 per cent overlap
·2 road reserves at less than 0.1 per cent overlap each

The documentation also notes: Historical Leases 394/501 and 394/472 overlapping at 22.9 and 62.2 per cent respectively; a number of exploration licences that were withdrawn prior to grant; one surrendered exploration licence held between 2006 and 2009 overlapping at 50 per cent; four cancelled temporary reserves held variously between 1966 and 1973 overlapping between 0.1 and 5.1 per cent; and one pending miscellaneous licence overlapping at 0.3 per cent.

Government party Tengraph Quick Appraisal documentation for E08/2217 dated 30 August 2011 establishes the underlying land tenure to be Mt Stuart Pastoral Lease 3114/1267 overlapping at 99.6 per cent and one road reserve overlapping at less than 0.1 per cent. The documentation also notes: Historical Lease 394/472 overlapping at 100 per cent; one exploration licence withdrawn prior to grant; two surrendered exploration licences held between 1995 and 1998 overlapping at 64.7 and 35.3 per cent; and one surrendered exploration licence held between 2006 and 2010 overlapping at 100 per cent.
DIA documentation provided by the Government party shows no registered Aboriginal Sites or Heritage Places under the AHA within the area of the proposed licences.
Tribunal mapping locates E08/2216 overlapping the intersection of the Ashburton and Henry Rivers in the southern portion of the Parry Range. E08/2217 is located approximately 30 kilometres to the northeast of E08/2216, between the Nanutarra-Wittenoom Road and Cane River, near the southeastern edge of Cane River Conservation Park. The mapping shows no Aboriginal communities within or in the vicinity of the proposed licences.
The Draft Tenement Endorsement and Conditions Extracts included in the Government party’s documentation indicates the grant of both proposed licences intends to be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]) and two further standard condition intended for both licences which overlap pastoral or grazing leases, requiring the pastoral or grazing lessee to be notified of the grant, licensing or transfer of the licence and of certain exploration activities (Conditions 5-6).

The following two additional conditions are noted for E08/2216:
‘Consent to explore on De Grey Mullewa Stock Route Reserve granted subject to:
7.No exploration activities being carried out on De Grey Mullewa Stock Route Reserve 9701 which restrict the use of the reserve.
8.No interference with Geodetic Survey Stations PRICE and WYLOO 77 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.’
The Draft Tenement Endorsement and Conditions Extract also notes the following two endorsements for both proposed licences (which differ from conditions in not making the licensee liable to forfeiture of the proposed licences for their breach):
‘1.The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.
2.The licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.’
Government contentions note the following variants of the standard condition (the RSHA condition) offered by the Government party in all objection applications which proceed to an inquiry before the Tribunal:
E08/2216 at 5(f):
‘The government party will place the following condition (“the proposed condition”) on the grant of the proposed tenement...:
“In respect of the area covered by the licence the Licensee, if so requested in writing by the Buurabalayji Thalanyji Aboriginal Corporation the native title prescribed body corporate holding the determined native title of the Thalanyji recognised in Federal Court application no. WAD6113 of 1998 (WC99/45) and/or Puutu Kunti Kurrama & Pinikura 2 People, the applicants in Federal Court application no. WAD126 of 2005 (WC05/4), such request being sent by pre-paid post to reach the Licensee's address, c/- M & M Walter Consulting, PO Box 8197, Subiaco East WA 6008 not more than ninety days after the grant of this licence shall within thirty days of the request execute in favour of Buurabalayji Thalanyji Aboriginal Corporation and/or Puutu Kunti Kurrama & Pinikura 2 People, the applicants in Federal Court application no. WAD126 of 2005 (WC05/4), the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and Pilbara Native Title Service.”
E08/2217 at 5(e):
‘The government party will place the following condition (“the proposed condition”) on the grant of the proposed tenement...:
“In respect of the area covered by the licence the Licensee, if so requested in writing by Puutu Kunti Kurrama & Pinikura #2 People, the applicants in Federal Court application no. WAD6113 of 1998[sic] (WC05/4), such request being sent by pre-paid post to reach the Licensee's address, c/- M & M Walter Consulting, PO Box 8197, Subiaco East WA 6008 not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of Puutu Kunti Kurrama & Pinikura #2 People the Regional Standard Heritage Agreement (“RSHA”) endorsed by peak industry groups and Pilbara Native Title Service.”

Native title party evidence

On 1 February 2012, the native title party provided a statement by Mr Mitchell Drage signed on the same day and relating to both proposed licences, in the following terms (note that some punctuation and spacing have been amended slightly from the original to assist readability):
‘Introduction
I am a Pinikura man and a senior member of the Puutu Kunti Kurruma and Pinikura (PKKP) native title claim group. The tenement application areas E08/2216 and E08/2217 (the application area) are mostly within our PKKP(2) claim, WC05/4.
Pinikura People and the application area
My old people taught me about my family’s area of Pinikura country, including the application area. The country along the hill range around the North-west Coastal Highway [through to Nanutarra station was an important area for my Pop Kalpan. He was named after a place a bit further down the Ashburton River from the application area: Kalpanthalu. That name continues to be passed down to his descendants today. My grandmother Molly Butler was the second eldest child of her family. She lived on her country and taught my mother and us kids about the application area.
Mum had 15 children. Mum was a senior Pinikura elder who knew our country and our law/lore very well. Thoughout my childhood, Mum used to take us around the country on Boolaloo , Mt Stuart, Wyloo, Urandy and Nanutarra stations, and further east to Duck [sic] Creek. Mum worked on many stations in this area over the years: Urandy; Boolaloo; Mt Stuart. All these areas were tied together: they were the main camping areas for our people. In those days, all the Aboriginal children were sent away to boarding schools. I would go back to my mum on our country every school holidays. We often used to stop at Boolaloo, where we would camp by the creek past the homestead: we call that Homestead Creek. We would travel west from there, up and down the course of Ashburton River, including down to where the Ashburton and Henry meet, inside the application area. Travelling along the river was about being on country and looking for bush tucker. When we were at the station, there was plenty of sheep meat, but my family and I still went out hunting and fishing all around our country, because that’s our way and our tradition. Around this river are rich areas full of kangaroos, bush turkeys, goannas, and good fishing holes.
We also used to go down to Meilga outcamp on Nanutarra station, a few kilometres east of the south-end of the application E08/2216. My Great-Nan Topsy Ashburton lived there with her family. When I visited Meilga, Great Nan Topsy, Pop Jalpan, Nana Judy and other family would be there, sometimes including my Aunty Margie. Aunty Margie is now one of the most senior Pinikura women, and she knows Nanutarra station well. Great-Nan Topsy would take her family out around that country, including into the application area.

Nanutarra is an important area for Pinikura people. Mum told me that our people used to get together at the old crossing over the Ashburton River when the mustering season was over, before I was born. This old crossing was the area where Pinikura and Thalanyji country meet. It is inside the area applied for as E08/2216. Although the border between our native title claim and the Thalanyji determination is further west, our peoples have interests in each other’s areas, and we have an agreement between us acknowledging shared country. This was a special place. Pinikura people, Thalanayji people and people from other language groups in this region would meet and have corroborree and sing-along and do law/lore business there. People would travel from all around these stations to get together. Thudgari people would come up from Glen Florrie station, too.
This is where the old people lived. I have a big issue with people going on country and destroying it. It is disrespecting what the country means to me, to my family to my extended family and to my ancestors. I get emotional when I go on country, because there is a feeling of belongingness there. When I go onto this country, and when I see the hills, I remember going there with people who are no longer with us.
Government Well/Mt Price Well
I have seen a place marked on maps as Mt Price Well, in approximately the same location as a place my family knows as Government Well, and I believe this is the same place, or at least that they are very close together. There was a massacre of my people at this place. Mum often emphasised [sic] how important it was to protect the area around Government Well. My Uncle Claude Butler also told me this. He has now passed away, but he was one of our most knowledgeable elders. His mother, my grandmother Molly Butler also taught me about this massacre. Mum told me that it was in the early days of pastoralism in this region when our people would sometimes take sheep to eat, and there was conflict with the pastoralists about this. After a pastoral hand from the station got killed, the police came. The police massacred my people at this place, and threw their bodies down that well. Mum told me that’s why it’s so important to protect the area of Government Well. I would be very upset if people worked in that area and hadn’t spoken with Pinikura people first.
If we don’t have the right to negotiate, I don’t think we can ensure we protect these areas. There are other mining operations on PKKP country that are close to significant sites, and it is very distressing for my family and other Pinikura people when we have not been able to protect these sites in cooperation with the company. We need to be able to talk directly to the company who wants to use this spiritually significant country. We don’t even know who this proponent is, what they are looking for, or where they will go. We need information from them, and we need to give them our information about this area.
Cave at Gap Bore
There is a cave a hill [sic] at Gap Bore, which Mum and my grandmother told me about when I was young. The hill is inside the application 08/2216, so I think it is likely the company will go there. That place cannot be touched. Wirdajis – ‘little people’ – live in that cave. Pinikura people also call them ‘cheeky men’, or ‘cheeky bastards’.
My parents told me about their experience of these Wirdajis. In or around 1966, I was camped with Mum and Dad at Boolaloo, near a shearing shed used by Nanutarra and Mt Stuart stations, up the Ashburton River from the application area. Mum woke up 2 or 3 times and experience Wirdajis who came out of the hills. I was there, sleeping. They came to see who we were, and make sure we weren’t causing any problems on country. The Wirdajis would cause trouble if we were damaging the country. On the same night, a man called Phillip Phillips, who is now deceased, was bothered by these spirits at Boolaloo.
If strangers interfere with that hill where the cave is at Gap Bore, they will disturb the Wirdajis, who will torment them. They can also make the Pinikura people sick, because that place is our responsibility. This is a source of fear for me and my PKKP community members. Now that I am older, I share our people’s responsibilities to keep our people and strangers on the country safe by making sure they don’t upset the Wirdajis. It is my obligation to talk to an exploration company about how to keep these places and our people safe.
Jinatharpi along the Ashburton River
Boolaloo – up-river from the application area of E08/2216 – is a very spiritual place. Jinatharpi, also called Bugurra, or ‘spirit men’, walk the country there, up and down the rivers, especially at times of significance, like law/lore times and when there is a death. They walk up and down, including into the application area. When I was 5, I got grabbed by the Jinatharpi at Boolaloo yinta, which is a very deep water yinta, and they made me sick. I was healed by a maparn man – a magic man who can heal people. I remember the old man holding me, and he healed me at the old Boolaloo homestead.
I fear that if we don’t look after these spiritual areas, and they are damaged, we will bring trouble from the Jinatharpi upon ourselves. Pinikura people will have failed to look after it. It’s our responsibility to look after it, and so I am worried about people coming to these places without negotiating with us about protecting places properly.
Waterways
I am very concerned because these applications include vital waterways. The Ashburton River and the Henry River are living river systems that support us with places to camp, and support the fish and animals that we can hunt there, as our people always have. The Ashburton is the central path through the country that I travelled through as a child. There are yintas – permanent pools of living water – in the application area 08/2216. When I go to a yinta, I acknowledge the spirits there and tell them I am from that country, and I have to look after it. This is what my parents and grandparents taught me since I was a child. Even during very dry spells, there is water in the yintas, but they are also fragile in this dry country. If a company takes water, or disturbs the riverbed with vehicles, I am very worried that the water will go down, or become unclean. If the yintas are damaged, the fish, birds and animals could disappear. We need to look after the waterholes so they exist into the future, along with all the life that they support.
Water sources like the pools along the Ashburton and Henry, in the application area, have the power to bring people together. They are vital to us gathering on our country, teaching our young people and keeping our culture, our law, lore and our community practices alive. We are expected to look after this area by the older people. We can’t just walk onto country; we need to acknowledge our ancestors when we go onto country. We let them know that we are there, and tell them who we are. Our old people – our ancestors – are still present in that country.
Going to the application area: Passing on knowledge
For a number of years I have worked as a teacher in the state system, and I have lived where my work has taken me, away from my country. I now live in Nullagine because I work there, and it is hard to find time to travel all that way to Nanutarra. I have been involved in our native title claim since the start-about 12 years- to protect all of our country as much as I can.
My most recent visit to the tenement area was about 5 years ago. I am aware that my Aunty Margie’s family goes and uses this area more often. When I was a young adult I would go 3 or 4 times a year, and as a child I would be travelling through with my family whenever I wasn’t at school, so several times every year. However, the things restricting me from going more regularly are more temporary. My need and want to go to the waterholes have always been there. As I get closer to my retirement from work, I plan to move closer to my country. The most likely option is to move to Paraburdoo, which is one of the closest towns to my country.
When I drive through any part of our country, including the application area, for example from Nullagine through Tom Price and Paraburdoo to Nanutarra, I always stop and discuss the area and tell stories about the country to family members. We find things on country like a bush banana or a wild onion (ngargu), and I reminisce and tell stories, and pass my people’s knowledge onto our younger generation.
My brother and other family who live in Onslow go to the application area and the surrounds more often. They take their kids and go in family groups, to go hunting and fishing.
Effects of Exploration
I am very concerned about a company making roads or drilling through these areas – through our vital water sources and our significant sites and spiritual places. The roads in the application area are rocky dirt roads, and I expect that exploration vehicles will either do some damage or need better roads to be put in. If people come to this area without talking to the PKKP community, I am very concerned that there will be damage or activities that will interfere with us taking our kids and young people there, to use these places to fish and hunt, and to teach them.
I want the opportunity to negotiate, rather than letting someone just go into this area. This isn’t about royalties or survey money; it’s about protecting our country.’
On 20 February 2012 the native title party provided a statement relating to both proposed licences, signed by Ms Margie Hughes on 18 February 2012, in the following terms:
‘I am a Pinikura woman through my mother. I am one of the senior women of the Puutu Kunti Kurrama and Pinikura (PKKP) native title claimants. I am authorised to speak for the country within which the tenement applications E08/2216 and E08/2217 sit (application area).
Background
I went to school in Carnarvon but I spent most of my holidays on Nanutarra Station, including within the application area. The name of Nanutarra in Pinikura language is Ngamarriballa. I have known this name since I was a child. All places on this country have Pinikura names.
When I was a child, many of my old people worked on Nanutarra Station. They used to work here at Meilga when it was a sheep station. They built yards and fences that are still standing there. They cut those wood posts and rails by hand with axes. My parents were station hands, and did fencing, mustering, fixing windmills and other station work. My mother also worked in the homestead, and would cook or look after the station hands’ children. Many Aboriginal People from different tribes, including my own Pinikura and Puutu Kunti Kurrama People, lived at Nanutarra or came to work and meet others. My Nana Topsy Ashburton was the main senior Pinikura person at Nanutarra then. In that time, some Pinikura people were also working elsewhere, all over the stations like Minderoo, Boolaloo, Meilga, Mt Stuart and Wyloo. But the Nanutarra area was the main place to come back and go hunting and fishing for Pinikura People. Boolaloo was the second most popular area.
I was often with my Nana Topsy, whose Pinikura name was Markakuru. Nana Topsy knew this country in the application area very well because she had traveled through and lived on this land since she was a child. Nana Topsy taught me a lot about this country. My natural grandfather passed away before I was born. He was named Kalpanthalu (Punch Hughes in English), and he is buried at the place he got his name from, on the Ashburton River, which west of the Nanutarra homestead, downstream from E08/2216. Nana Topsy then married Jukaan (Tommy Ashburton). Jukaan took the role of father to my father, and taught him the lore and culture and spiritual ways. My father’s name was Putjakuru. His English name was George Hughes. He was a Pinikura man. After Jukaan died, Nana Topsy married her third husband, whose English name was Clucky Moses, who was our grandfather to me and my sisters and brothers.
My family connection to the application area
I feel really good when I am on Nanutarra, because it is my home. It is a very special place for me. Even my own children grew up there. These places are unique because we can go camping, hunting and fishing in our country. The area of application E28/2216 goes over the top of major water ways of Pinikura country – the Ashburton and Henry Rivers. A lot of Pinikura country is dry, so we need to have access to the rivers, creeks and waterholes that we do have. The Pinikura People belong there.
When I was very young, I started learning about this area while staying with my Nana Topsy and her husband Clucky at Nanutarra Station. They would take Mum, Dad and us kids all around that area, including around the Ashburton River and Henry River within the application area. When my old people were out here working, they used these water sources, and would share these places by taking other people from other tribes there, too.
We would camp at Meilga for about a week at a time and have a corroboree there. We used to go fishing in the waterholes and hunting all around, and I learned about this country by walking all around it, going to different places. We take the sap from Acacia trees here, which we call Thumbali, to make a drink. We can also get grubs in the ground, called Bilungu. In this area, because the ground is hard, you have to dig them out, then you can eat them raw or cook them up. We still do this sometimes, especially to show the kids and teach them.
Waterholes – yintas – and bush foods and materials
Within E08/2216, near the river crossing over the Henry River near the junction with the Ashburton River, there is a waterhole on the Henry called Wyatra. Wyatra is a yinta, which means it is a permanent pool. When you go to a yinta, it hits you – you get a special feeling. Because this application area includes so much of these rivers, it is full of yintas.
Wyatra is a place my family and I often stop to rest or cook a meal in the shade, or to go for a swim, to go fishing, or to camp. In the 1960s, my people would sometimes go there in big numbers, but now we go in smaller family groups of up to 20 people. We take our grandkids, so we usually have a mix of ages. During 2011 I went 2 or 3 times with family. Taking my family bush is the happiest time for me. We enjoy ourselves and we maintain our old culture, and I reminisce with the younger ones about the old people who came before, and how they used to live on this country. Visiting Wyatra is a happy and emotional time for me and my family.
When I visited Wyatra in December 2011, I saw that someone is pumping water out for mining activities. I think the water might go down if more water is taken from there. This is distressing because I don’t know how much water they are taking and whether they know how to make sure Wyatra stays health [sic]. The PKKP people need more information and negotiation before there are new activities around Wyatra.
Pinikura People used to get materials in this whole area to make artefacts like boomerangs, spears, shields, Woomeras, nulla nullas and yandies, which we used for hunting, combat, ceremonies and music. Pinikura people are still obligated to continue this practice. They would need access to the country in the application area, including these waterholes, usually once a year, at Lore Time. For our Lore and cultural practices, Pinikura people can take other Aboriginal people to our places, and this sharing is important to our cultural relationships. In past times, our people would exchange artefacts for other things with tribal inland groups and with coastal, seaside people. I spend at least 6 weeks, and often up to 3 months, every Summer camping on country at Cane River Lore Camp, where we practise Lore and cultural ceremonies. This is one of the most important things we do to keep our culture alive. While I am camped at Cane River, I take my family on trips out to our country, including the places in the application area.
Moreton Pool, which we also call Moreton Claypan – is a good tucker place in the application area. We get lots of things here – kangaroo, bush turkey, emu. We cook the meat up in the ground, especially at special occasions, but sometimes we cook it in a pot these days. The boys still cook the meat, and the ladies make the damper. The kids help pluck turkeys or emu. It’s a way of learning. That’s a good fishing place too, and good for camping. There are also ducks. In earlier days our people used to catch the young ducks. When I was a child we used to catch cockies using rocks, and cook them in the ground. This place is a good food source – and all the foods are connected to each other. There is another waterhole on the Ashburton river north of the Moreton pool called 14 Mile, in or very close to the application area, upstream. That is a good area where we used to camp often up until the 1970s, and a good area for hunting and fishing. It is still a good place that we know about and want to keep healthy, and I am worried that exploration activities around 14 Mile might affect the Ashburton River downstream, too. Water holes are always important to Aboriginal people in this region, for food and for cultural practices. My family and I come to these claypans about twice a year, and we know we can feed our family here and show the kids the old ways. The best camping places are rare and valuable to us, and I am worried that mining or exploration work around here would prevent us from enjoying these family times.
The area around Moreton Pool is also important for bush medicine, such as jilan. The best time to get it is after it flowers, when the aroma is stronger. We use it when someone has a cold, and bathe sores. We boil it up these days, but in early times, before we had billies and pots, my people warmed up the jilan using hot stones. The young leavers of the gum trees have similar uses, and we still get these here, too. Although we can get modern medicine now, we still find these things in the application area, which is a good area to find these plants growing well, and to teach the kids in the area where we are camping. Maparn men – bulanyji – use these medicines and spiritual methods to heal people.
I don’t generally have time to come here much more often than twice a year, because life is busy now. I work 8 days in a row in my job at the Karijini National Park visitors centre. A lot of my time off work is taken up by native title meetings and traveling between meetings, to talk for my country. For example, to have a look at the area of this application and then give this statement to our lawyer meant I had to take 2 days off work without pay. I do this work to look after my young family members’ future for and in their country.
This part of our country – the application area – is a significant area for the Pinikura people, around the Ashburton and Henry Rivers, because it has rich spiritual significance and we know that our old people lived in and cared for these areas around the rivers. I feel drawn to these places. Water is a vital resource for Aboriginal people, to maintain our sites and be able to sustain ourselves on our country. Pinikura people can also share our water sources and bush tucker with people from other tribes.
I continue taking family members out to these area. We need to focus on our young people, taking them out to these areas so we keep passing on our knowledge of our country, and we need to have access to these places. The Pinikura people have a big young generation and we have a lot to teach them. If our access to these special places and sites on our country is interrupted, it will be harder to pass on our knowledge. I always feel privileged when I walk onto my country with the kids and I want to do my best to protect these places for them.

Another yinta on the Ashburton River, near Nanutarra Station is Miana Pool. Miana Pool is a good place to camp because there is water all year round, and shade. My family and I go fishing in that pool. We also go hunting around there because you can catch pretty much everything: kangaroo; turkey; emu; goanna; grubs, which we call Bilungu. Miana pool This [sic] pool is outside E08/2216 but I am worried that mining or exploration work around the Henry and Ashburton Rivers could affect Miana Pool downstream, and that the animal life could be interfered with.
Mostly in the Ashburton River we get Ngurruwari (catfish). In billabongs we get millinja (spangled perch). These spots right along the river are good fishing spots and I want my family to be able to keep using them, and make sure they are healthy.
I feel strong ties to Miana Pool. I used to go there when I was a child with my grandparents and parents, and now I continue going there with my kids and grandkids and our family. In recent years, I camp there about twice a year. About 12 months ago I took my grandchildren to Miana Pool. I am the oldest of my family group now so it’s important that I take the younger family members to this place. Grandparents are our teachers. It’s important that they know these places and the proper place names. It’s hard to get much time during the year to take the kids out, because they are at school in Perth. We go when we get the opportunity.
Pinikura people know that country and we can tell when something is wrong with those places and with the water courses, because we are familiar with the plants, animals, birds and fish, and how the water looks through the different seasons. If anyone is going to use water from there, or drive through the river beds, I am worried that the pools will be damaged and animals and plants will suffer.
Spiritual water sites and consequences of disturbance
Most of the pools in and around the southern end of E08/2216 are yintas and they’re not to be touched, except for fishing. There are snake spirits, called Wanamangura in Pinikura and Thalanyji languages, living in these yintas. They need to be respected, and we need to let them know we are there, which is why we greet the water. My family and I talk to that country like a white person might say grace, to bet thankful to the spirits. They look after us, and the [sic] let us go fishing, but they give us a sign – such as frog calling – when we have taken enough fish and they want us to move on. This is part of our duties to this area. ‘Ngatha ngurura’ or ‘yunu nyuga’ – means ‘I’m from here, I belong to this country’, in Pinikura and Thalanyji languages, which are very similar. I know our Pinikura names for our places, and I also speak my mum’s language, Thalanyji, fluently. I also understand and speak Banyjima and Yindjibarndi languages.
If a company starts working near pools, they will upset the spirits, and then the pools might lose their water. Spirits can get angry if they are not respected, and I am worried that strangers coming onto this country don’t know how to respect the spirits. I have seen a spirit make a whirlwind when it was angry with a stranger on Nanutarra.
My family and I still collect bush food in the area of E08/2216. We collect Ngargarla, which is acacia gum, from the application area and further around. When there has been rain, there is more gum. We make it into a drink with water, and it’s good for colds or sores. Babies can take a bit, too. The seeds from those trees, which we call Thumbarli in Pinikura language, are a bit like beans. We still cook these up in the ground sometimes when we are on this country. Even though these also grow in other places, the river area of the application area is good for getting Thumbarli near good camping places.
Cave near Gap Bore – dangerous mythological site
There is a cave in a hill near Gap Bore, towards Mt Price as you are walking north of the junction pool on the Ashburton and Henry Rivers. This is inside the E08/2216 area. There is a thalu at Gap Bore – a ritual ‘increase site’ that Aboriginal people use to increase the resources on our country through ceremony. It is a dangerous place because a cheeky spirit lives in that cave. It’s forbidden to go there in our Lore. When my oldest daughter was a baby, I was with a mustering camp on the south side, and we witnessed it that spirit. It was scary. He is a cheeky bastard who torments people, by crying out. Anthropologists would call this a mythological site. We don’t want that place destroyed because the cheeky spirit might get angry with the person who damaged it, or he might get angry with Pinikura people and make us sick. The cave is part of a hill along the river. I am scared that an exploration company might disturb this cave and the spirit will be disturbed. I have responsibilities regarding this site in our Law, but I look more to the senior men to look after that place because that is their role in Lore.
Government Well/Mt Price Well Site
I go to the area around Mt Price – which is in the northern half of E08/2216 – about twice a year, when I am traveling through. There is an old government well at Mt Price Well, and other sink-wells and caves that go straight down into the ground, near 10 Mile Crossing. You can disturb spirits if you go there. Sometimes we don’t visit those areas, because we are frightened that the kids might get sick. A company might disturb these places, because they don’t know our culture. If they do, we’d feel very hurt because they are not respecting us. They should respect our culture and we should respect their culture in return.
E08/2217
The area of application E08/2217 is also Pinikura country. I can’t access that country at the moment because it has been fenced, and we can’t use the old road through it. I have used that road in the past, and so have other Pinikura families. That is a good hunting area in there, and it’s good for camping away from the road. I will use it again one day when it is not fenced or when the pastoralists will give us access. It is still Pinikura country. I think PKKP People need the chance to talk with the proponent company about this area, because we don’t know where they might go. I want senior men in my group to have the chance to protect that country from any possible damage, because I think men know more about that area than women. I know there is a thalu site very close to this application, called Wanja Thalu (‘Dog Rock’).
I pass through and around the application area many times each year, when I am traveling around my country, for example when driving from my current home in Karijini National Park to Onslow, where many PKKP people and other families live. When I travel through, I point out the landmarks to my family, such as Walan Thalu (Mt Wall), Wajabi (Mt De Courcey), Mitawandy Creek near Mitalya Gap, Walyita (Mt Amy), Muguriada (Mt Murray) near the Nanutarra-Tom Price Road turn-off, and Walgarathada (Mt Alexander) on the south bank of the Nanutarra River (Ashburton River), which you see on your left as soon as you pass the bridge. This whole area is rich in cultural sites for PKKP People. It’s important that we can travel through this country, and learn about it and take care of it. Pinikura people had songs – balgabi, or corroborees – from our country, including the application area, including songs about thalu (ritual increase sites), yinta (permanent pools) and hills, but now they are gone.
I am worried that if exploration companies work in these areas, it will be hard for us to access some places and we might lose opportunities to teach our kids about them.
Negotiations
There are many Pinikura cultural sites in this area, and if we can’t talk to the company we can’t even be sure which places are inside their tenement and which sites they will impact. I have tried to work out where this application area sits on the country and which sites and other places will be included, but it is important that all the PKKP families have a chance to consider this tenement so other people’s knowledge can be considered, too. We want the opportunity to speak to the company about how to protect our sites and important community places. For example, even if the company tries to protect places for us, they might not know the best way if they don’t talk with us.
Pinikura people have to take care of Pinikura places, and it’s important that we keep visiting our country, to check on our sites and important places, to make sure everything is OK. I am worried about what might happen to the water sources in the south end of E08/2216 if the river beds are disturbed. I have seen exploration drills and rigs and their camps, and I think exploration could damage these waterways. I think we can work with exploration companies to avoid damage and disturbance if we can negotiate with them, like we have done with other companies.
I think there would also be lots of artefacts in the application area, because this is a rich area for food and a good area for camping. The old people would have spent a lot of time there. If anyone wants to come and explore in this area, they need to come and speak to us. They need to know that there are people who belong in this country and have strong ties to and feelings for this area.
I think there would also be lots of artefacts in the application area, because this is a rich area for food and a good area for camping. The old people would have spent a lot of time there. If anyone wants to come and explore in this area, they need to come and speak to us. They need to know that there are people who belong to this country and have strong ties to and feelings for this area.
If the company comes to speak with us, we can learn more from each other to protect these cultural sites and fragile places and work together. If we can’t negotiate, I am worried that my people might see damage to important Pinikura places and we might not be able to keep using them in the future. If this happens, we will feel very sorry for failing to look after our country.’
Both Mr Drage and Ms Hughes identify themselves as Pinikura people who are senior members for the native title party’s claim and I accept they have the necessary authority to speak for the area on behalf of the native title party. Although the statements are not witnessed, both are signed and neither is contested by the other parties. With reference to s 109 of the Act, which notes the Tribunal is not bound by the rules of evidence, I accept the statements as evidence for the purposes of the inquiry.

Grantee party contentions

On 19 March 2012 the grantee party submitted the following statement of contentions for both proposed licences:
‘Pickaxe supports the contentions lodged by the State Solicitor’s Office on 29 July 2011 and submits the following to support the Expedited Statement in relation to section 237 (a), (b) and (c) of the Native Title Act 1993 (C’th).
1. Community or Social Activities (section 237(a) NTA)
1.1 The Grantee will not exclude any community activities upon the Exploration Licence unless during a particular activity it is considered temporarily unsafe for the conduct of community activities.
1.2 Should it be unsafe for the conduct of community activities the Grantee will consult with the Community to relieve apprehensions.
1.3 The Grantee will notify the Traditional Owners prior to any exploration activity likely to restrict the gathering of bush tucker, medicines and hunting of game and will consult with the Traditional Owners to minimise any disturbance.
1.4 The area of the Puutu Kunti Kurama and Pinikura #2 claim is approximately 4321.533 square kilometres. The area of the tenement application 08/2216 that falls within the Puutu Kunti Kurama & Pinikura #2 claim is approximately 91.182 square kilometres representing 2.1010% of the claim area to be used for exploration on the presumption that the total area of the tenement within the claim were to be explored at one time.
1.5 The area of the Puutu Kunti Kurama and Pinikura #2 claim is approximately 4321.533 square kilometres. The area of the tenement application 08/2217 that falls within the Puutu Kunti Kurama & Pinikura #2 claim is approximately 38.003 square kilometres representing 0.879% of the claim area to be used for exploration on the presumption that the total area of the tenement within the claim were to be explored at one time.
2. Aboriginal sites and places of Aboriginal cultural importance (section 237(b) NTA)
2.1 The Grantee agrees to undertake a heritage survey as per the State’s contention 5(f)[1] 2.2 The grantee will ensure that its employees and/or contractors are made aware of Aboriginal sites that might become listed by the Department of Indigenous Affairs web site and/or located during the offered heritage survey (as per the condition 5(f)[2] of the State’s contentions.
[1] Presumably this also refers to paragraph (5e) of the States contentions in E08/2216 – 5f refers only to contentions in E08/2217
[2] ibid
2.3 The grantee will ensure that its employees and/or contractors are made aware of their responsibilities under the Aboriginal Heritage Act 1973 and of the penalties there under.
2.4 The grantee will impose upon its employees and contractors an exclusion zone around any Aboriginal site or area of Aboriginal cultural significance registered with the Department of Indigenous Affairs and any site of significance identified during the conducting of heritage surveys as per the condition 5(f)[3] of the State’s contentions.
[3] ibid
2.5 The Grantee recognises that Aboriginal sites might be gender specific and will consult with the Traditional Owners to identify gender specific sites.
2.6 The Grantee will comply with the Aboriginal Heritage Act 1973 and report any Aboriginal sites identified as required by the Act.
2.7 The Grantee has never been prosecuted with relation to breaches of the Aboriginal Heritage Act 1973.
3. Disturbance to Land and Waters (section 237(b) NTA)
3.1 The Grantee contends that the exploration activity proposed (exhibit A)[4] will not constitute 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.
3.2 The Grantee will restore land the subject of any disturbance whilst carrying out its exploration programme on the Tenement. As little as any disturbance is likely to be, it will be restored as close as possible to the condition prior to exploration being undertaken by the Grantee or its agents.
4. Summary
4.1 The Grantee Party has demonstrated it is committed to take steps to protect Aboriginal heritage sites by agreeing to have heritage surveys undertaken by Traditional Owners, adhere to the Aboriginal Heritage Act and to report sites identified during exploration activities.
4.2 The Grantee Party has agreed not to restrict access to the area of the Tenement by Traditional Owners except as necessary as per clause 1.2.
4.3 Ground disturbance will be kept to a minimum and ground will be restored as close as possible to its original state. The Grantee endorses the “Conditions of Grant “to be imposed by the Department of Mines and Petroleum a breach of which could result in forfeiture of the tenement.
The Grantee, (Pickaxe City Pty Ltd), believes it has a management plan that encapsulates concerns by the Native Title Party under s237 Native Title Act 1993 (a), (b) and (c) and that it should be determined that the Expedited Procedure should apply to the application of exploration licences 08/2216 and 08/2217.”
[4] No exhibit was attached

Government party evidence and contentions in response to the evidence of the native title party

The Government Party also lodged a Statement of Contentions in response to the evidence of the Native Title Party, on 23 March 2012 (the ‘Response’). Evidence provided by the Government party has been summarised above and any further relevant contentions made in its submissions will be discussed in my findings below. The Government party’s Response is largely a restatement of the original contentions provided by the Government party, but includes further detail about its view of the grantee party’s contentions and of the evidence provided by Mr Drage and Ms Hughes for the native title party.

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken pursuant to it are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference) (see Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (‘Smith’)). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference and must be substantial and not trivial in its impact on community or social activities (Smith at 451). 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).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, the additional conditions/endorsements outlined above and s 20(5) relating to exploration activity on pastoral leasehold areas, 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. I note the Tribunals previous findings that s 20(5) of the Mining Act does not assist the Government party in relation to a s 237 assessment (see for example Banjo Wurrunmurra and Others on behalf of the Bunuba Native Title Claimants/Western Australia/Monte Justin Ling, Michael Haabjoern and Kevin Peter Sibra [2008] NNTTA 127 and Walley). In these previous determinations and others, the Tribunal has dealt with the limitations of s 20(5) to prevent interference with community life, and the Tribunal has determined that s 20(5) is of little importance in this regard. As outlined in Walley at [37]:
“The section is obviously not designed to protect Aboriginal interests. Where a pastoral lessee is an occupier of the land, and the native title party is not, the pastoral lessee could consent to the activities which are otherwise prohibited without consultation with or consent from the native title party. Even in circumstances where the native title party is an occupier, as it may be on an Aboriginal reserve, the warden could permit the otherwise prohibited exploration or interference except within 100 metres of land in actual occupation and on which a home or other substantial building is erected.”
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities or interfere with areas or sites of particular significance to a native title party (Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver’) at [29]-[30]). The grantee party states in its contentions that it “will notify the Traditional Owners prior to any exploration activity likely to restrict the gathering of bush tucker, medicines and hunting of game and will consult with the Traditional Owners to minimise any disturbance”. It also states that during exploration it “will not exclude any community activities ... unless during a particular activity it is considered temporarily unsafe for the conduct of community activities.... [and] will consult with the Community to relieve apprehensions” (paragraphs 1.1-1.3). I accept the Government party’s contention that there is “no basis for a conclusion that the Grantee Party will not act in accordance with its stated intentions” (Government party’s response at 19).

Approximately 50 per cent of E08/2216 and the entirety of E08/2217 has been subject to previous exploration activity and the majority of the proposed licences, including their surrounds, are overlapped by pastoral leases. This suggests that some impediments to the exercise of the native title party’s community or social activities has already occurred. Furthermore, at paragraph 26 of her statement, Ms Hughes states that “I can’t access that country [within E08/2217] at the moment because it has been fenced, and we can’t use the old road through it.... I will use it again one day when it is not fenced or when the pastoralists will give us access.”
In its contentions, the grantee party states that the area of the proposed licences comprises only 2.98 per cent of the native title party’s entire claim area “on the presumption that the total area ... were to be explored at one time” (at 1.4-1.5). The Tribunal has found on numerous occasions that exploration activity is of an intermittent nature which generally occurs over small areas for short periods of time, and has often found that, on the balance of the wider claim area in which community and social activities are said to occur, interference is unlikely.
In this matter, the native title party provides evidence of extensive community and social activities practised in an area which appears to include the proposed licences and the entire western portion of the native title party’s claim area as far as Mitawandy Creek and Duck Creek, located some 100 kilometres west of the proposed licences. By the native title party’s own statement, community and social activities do not currently occur in E08/2217 because access is denied by the current pastoralist. With respect to E08/2216, the following evidence of yearly use of the area is provided:
·Use of water at the numerous permanent waterholes or yintas around the Henry and Ashburton rivers (Mr Drage at 14) especially during lore business “usually once a year” (Ms Hughes at 11)
·Wyatra waterhole on the Henry river used for resting, camping, fishing and swimming (Ms Hughes at 9)
·Moreton Pool “a good tucker place” and an area for collecting bush medicine (Ms Hughes at 12-13)
·Ms Hughes, her family and Mr Drage’s brother and other family use the proposed licence area for hunting and fishing (Mr Drage at 17 and 19)
·Ms Hughes visits the proposed licence area about twice a year (Hughes at 14 and 25)
Concerns regarding the possible use of water and waterholes by the grantee party were raised by a native title party in Banjo Wurrunmurra and Others on behalf of Bunuba/Western Australia/Francis Robert Salmon and Jamie Dean Duffield, [2012] NNTTA 27, particularly at [56]-[60] (‘Banjo Wurrunmurra’). In that matter, the native title party provided affidavit evidence attesting to their social and community use of water. It was determined that the conditions and endorsements offered by the Government and grantee party were not sufficient to conclude that interference with the social and community use of water on the proposed licence would not be likely to occur. In addition, the grantee party did not provided any submissions or evidence to indicate what they intended to do on that proposed licence – there was little information about the grantee party’s attitude towards their obligations or regarding their intentions for interacting with the native title party in that matter.
In the current matter, the native title party is concerned that social and community activities relating to their use of water associated with the Henry River and the Ashburton River may be interfered with on E08/2216. However, because those River’s are followed by the De Grey Mullwa Stock Route, there are draft endorsements and conditions which limit the activity which the grantee party can undertake along that area. In addition, unlike Banjo Wurrunmurra, the grantee party in this matter has provided clear evidence which states that it will consult with the native title party over any activities which could impede community and social activities.
I have considered the evidence presented by the native title party concerning its use of the proposed licences and have assessed it against the evidence of use in a wider area in which the proposed licences are located. I have also considered the statements provided by the grantee party regarding consultation with the native title party, and its commitment to not exclude community and social activities unless it is unsafe to do so. I have balanced these statements with the contentions and Response of the Government party, and against the Tribunal’s knowledge of the intermittent nature of exploration activity. Taking all of these factors into account, on the basis of the evidence provided, I find there is not a real chance or risk that exploration activity is likely to directly interfere with the community or social activities of the native title party in a substantial or more than trivial way.

Sites of particular significance (s 237(b))

The next issue the Tribunal is required to determine is whether there is likely to be (in the sense of a real chance or risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions.
As stated at paragraph 21 of this determination, the Register kept under the AHA shows no sites within or overlapping the proposed licences, but this does not mean there may not be other sites or areas of particular significance 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 licences 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 (for example in 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 [2007] NNTTA 15 at [81]-[91]). The Tribunal must consider, based on the facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance found to exist.
The statements of Mr Drage and Ms Hughes do not contain any reference to sites within E08/2217. The statements note the following sites within E08/2216 which, according to Tribunal mapping, are likely to be within that proposed licence:
·A crossing over the Ashburton River where “Pinikura people, Thalanyji people and people from other language groups in this region would meet and have corroboree and sing-along and do law/business there” (Mr Drage at 5)
·A massacre site at Mt Price Well which is “important to protect” (Mr Drage at 7)
·A number of permanent pools along the Ashburton and Henry Rivers which are “yintas and they’re not to be touched, except for fishing. There are snake spirits, called Wanamangura ... and we need to let them know we are there” (Ms Hughes at 21)
·Sink-wells and caves around Mt Price – “You can disturb spirits there. Sometimes we don’t visit those areas, because we are frightened that the kids might get sick” (Ms Hughes at 25)

The native title party statements also note the following sites which are said to be within E08/2216:

·A cave hill at or near Gap Bore where Wirdajis or cheeky men live which “cannot be touched” (Mr Drage at 9 and 11) (Ms Hughes at 24)
·A Thalu or ritual increase site at Gap Bore (Ms Hughes at 24)

According to Ms Hughes the cave is “near Gap bore, towards Mt Price as you are walking north of the junction pool on the Ashburton and Henry Rivers” (at 24). According to Tribunal mapping, both the junction of the Ashburton and Henry Rivers and Mt Price, are located within E08/2216, with Mt Price being located to the northeast of the junction. However, Tribunal mapping locates Gap bore approximately 7-10 kilometres to the northwest of E08/2216.

It is not clear from the evidence which caves, wells or waterholes within E08/2216 might be sites and whether, for the purposes of s 237(b) of the Act, any of those sites are of particular significance to the native title party. I accept that some of those sites, including Mt Price or Government Well, may be of particular significance to the native title party and as such I do not accept the Government party’s contention that the Tribunal must conclude that insufficient evidence has been provided by the native title party (Government party’s response at 64). However, by virtue of this determination, the grantee party has been put on notice that there are areas within the proposed licence which may be Aboriginal sites as defined under the AHA, and therefore cannot rely on s 62 of the AHA. I accept the Government party’s contention to this effect (Government party’s response at 69(a)).
In Silver at [29]-[30], Member Sosso outlined that ‘[t]he adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced.’ In the present matter, the grantee party contends it will impose ‘an exclusion zone around any Aboriginal site or area of Aboriginal cultural significance registered with the Department of Indigenous Affairs and any site of significance identified during the conducting of heritage surveys’ undertaken in accordance with the Government party’s RSHA condition. It also states it will comply with the AHA, report any sites identified, and has never been prosecuted under the AHA (at 2.4).
Given the RSHA condition, the native title party has the opportunity to enter into an RSHA with the grantee party for both proposed licences. Although this may not be the agreement of choice for the native title party, it will ensure that heritage surveys are undertaken prior to ground disturbing activity. It appears that the grantee party’s intention toward the native title party and the regulatory regime is a positive one, and I am confident the grantee party will act within the regulatory regime to eliminate the likelihood that sites of particular significance may be interfered with. There is no evidence to suggest the grantee party will not comply with the regulatory regime.
I accept the Government party’s contention that the application of the expedited procedure is not concerned with obtaining the agreement of the native title party to the acts (Government party’s Response at 81-82). I have considered the sites identified by the native title party, and accept that some of those sites may be of particular significance to the native title party. On the balance of all the evidence provided, I find it unlikely that there is a real risk of interference with any such sites which may exist on either of the proposed licences given the grantee party’s offer of the RSHA, its commitment to impose exclusion zones around all Aboriginal sites identified and to consult with the native title party as outlined in s 237(a) above.

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

The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).
The Tribunal has always had regard to the overall circumstances of each case, including, in particular, the locality in which the exploration will take place as well as the remedial regulatory regime in place. It will consider whether there are any special topographical, geological or environmental factors which would lead members of the Australian community generally to think that exploration activities would result in any major disturbance to land or waters. In most cases, the Tribunal has held that exploration activity does not cause major disturbance to land or create rights whose exercise is likely to do so, but there have been exceptions (Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 at [74]-[79] and the cases cited therein).
On the balance of the evidence provided in this matter, I find it is insufficient to suggest there are any factors leading to a finding that major disturbance to land or waters is likely. I find there has not been evidence of sufficient nexus to physical disturbance provided by the native title party as required by Rosas v Northern Territory of Australia and Another (2002) 169 FLR 330; [2002] NNTTA 113. Nor in my view is such disturbance likely to be considered major as required by the general community as outlined in Silver.

Determination

The determination of the Tribunal is that the future acts consisting of the grants of exploration licences E08/2216 and E08/2217 to Pickaxe City Pty Ltd are acts attracting the expedited procedure.

Helen Shurven
Member
24 April 2012