David Smirke and Others on behalf of the Jurruru People/Western Australia/Aurora Resources Pty Ltd

NATIONAL NATIVE TITLE TRIBUNAL

David Smirke and Others on behalf of the Jurruru People/Western Australia/Aurora Resources Pty Ltd, [2009] NNTTA 142 (4 November 2009)

Application Nos: WO07/596 (E08/1754) and WO07/974 (E08/1778)

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

David Smirke and Others on behalf of the Jurruru People (WC00/8) (native title party)

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The State of Western Australia (Government party)

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Aurora Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  4 November 2009

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 area is ‘site rich’ – intentions of grantee party regarding site protection – alleged failure of grantee party to comply with Mining Act and Regional Standard Heritage Agreement – whether act is likely to cause major disturbance to land or waters – expedited procedure is attracted.

Legislation:Native Title Act 1993 (Cth), ss 29, 31, 151(2), 237
Mining Act 1978 (WA), ss 20, 63, 66
Aboriginal Heritage Act 1972 (WA), s 62

Cases:Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea
Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362
Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250
Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391
Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576
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
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442
Ward v Northern Territory of Australia [2002] NNTTA 104; (2002) 169 FLR 303
Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437

Representative of the

native title party: Ms Penelope Muecke, Pilbara Native Title Service

Representatives of the Mr Greg Abbott, Mr Adrian Murphy and Mr Clyde Lannan

Government party: Department of Mines and Petroleum

Representative of the
grantee party: Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd

REASONS FOR DETERMINATION

On the following dates, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant the following exploration licences (‘the proposed licences’) to Aurora Resources Pty Ltd (‘the grantee party’) and included in its notice a statement that it considered the grants attracted the expedited procedure (that is, are grants which can be done without the normal negotiations required by s 31 of the Act):

14 March 2007 - E08/1754 comprising 90.94 square kilometres located 110 kilometres southwesterly of Paraburdoo in the Shire of Upper Gascoyne; and
23 May 2007- E08/1778 comprising 165.97 square kilometres located 97 kilometres southwesterly of Paraburdoo in the Shires of Ashburton/Upper Gascoyne.

The proposed licences are overlapped by the registered native title claim of the Jurruru People (WC00/8 - registered from 1 March 2001) at 99.93 (E08/1754) and 100 per cent (E08/1778) respectively. E08/1778 is also overlapped by the registered claim of the Gobawarrah Minduarra Yinhawanga (WC97/43 - registered between 25 June 1997 to 9 June 1999 and then from 29 October 1999) at 30.26 per cent.
On the following dates, David Smirke and Others on behalf of the Jurruru People (WC00/8) (‘the native title party’) made expedited procedure objection applications to the Tribunal in respect of the proposed licences:

13 July 2007 in respect of E08/1754 (WO07/596); and
20 September 2007 in respect of E08/1778 (WO07/974).

An objection application was also made by the Gobawarrah Minduarra Yinhawanga in respect of E08/1778 (WO07/995). The application was dismissed by the Tribunal on 23 July 2009 pursuant to s 148(b) of the Act (failure of the applicant to comply with directions made by the Tribunal).
In accordance with standard practice in expedited procedure objection matters, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of each objection, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent.
On 22 December 2008, following a number of conferences and a lengthy vacation of directions to allow the grantee and the native title party time to attempt to negotiate a heritage and land access agreement, I reinstated directions requiring parties’ compliance throughout May 2009 to allow time for the parties to continue negotiations. The delays in processing these matters (which would normally be regarded as unacceptable by the Tribunal) came about because the objection applications were a part of some 67 other objection applications lodged between 2007 and 2008 involving the grantee party’s tenement applications and some ten native title claim groups represented by the Yamatji Marlpa Aboriginal Corporation (‘Yamatji’). The Tribunal was continually advised by the representatives that the native title claim groups and the grantee party were attempting to negotiate a regional agreement which would encompass all claim groups and tenement applications and that, as a consequence, considerable time, coordination, and resources were required to finalise such an agreement. The Tribunal understood that if such an agreement was reached it would also cover the grant of future exploration licences and thus obviate the need for objections to be lodged and inquiries conducted. The Government party generally did not object to the proposal to deal with the objections in this way.
By May 2009 no agreement had been reached between the grantee party and the native title party and it became apparent that an inquiry would be necessary. In accordance with the reinstated directions, the Government party lodged its contentions and evidence on 7 and 12 May 2009. What followed were a series of further extensions of time given to all parties for responses and replies arising principally because of some contested issues about whether the grantee party had complied with its regulatory obligations and agreement about Aboriginal heritage in relation to the maintenance or upgrading of a track that passed through some adjoining exploration tenements held by the grantee party on Jurruru country. Again, the Tribunal would not normally consider this to be an acceptable process or timeframes for an expedited procedure objection. During this time I also rejected a request from the Government party to dismiss the objections pursuant to s 148(b) for failure to comply with the Tribunal’s directions made on the basis that the native title party had already been allowed sufficient time to comply.
Final submissions were received from the Government and grantee parties on 8 October 2009, the Tribunal having advised parties it expected no further requests to lodge submissions and that the matter would be determined ‘on the papers’ (i.e. without holding a further hearing) following that date. I am satisfied that the objections can be adequately determined in this way (s 151(2) NTA).

Legal principles

Section 237 of the Act provides:

‘237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:
(a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)     the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

In Walley v Western Australia [2002] NNTTA 24; (2002) 169 FLR 437 (‘Walley’), I considered the applicable legal principles (at 439-449 [7]-[23]) and the nature of exploration and prospecting licences and conditions to be imposed, including what activities are permitted by it and what limits are placed on those activities (at 449-454 [24]-[35]). I adopt those findings for the purposes of this inquiry, while noting that the Mining Act 1978 (WA) has since been amended and the standard conditions to be imposed on the exploration licence in Walley (at 453-454 [34]) have been strengthened.
Standard condition 2 now requires that backfilling and rehabilitation of the land must be carried out no later than six months after excavation unless otherwise approved by the Environmental Officer, Department of Mines and Petroleum (‘DMP’), formerly Department of Industry and Resources (‘DoIR’). Standard condition 4 is also to be read with s 63(aa) of the Mining Act 1978 (see below) which requires approval by the Environmental Officer, DoIR, of a program of work lodged by a grantee party in the prescribed manner before ground disturbing equipment can be used. Before assessment, the program of work for exploration, among other things, requires a grantee party to provide information from the Register of Aboriginal sites; advise whether the proposal intersects the boundary of registered sites; and consult with the Department of Indigenous Affairs and obtain advice from that department that the proposed activities are acceptable.
With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner (‘Maitland Parker’) at [31]–[38], [40]-[41]. In Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, the Federal Court (Siopis J) dismissed an appeal by the native title party from the Tribunal’s decision in Maitland Parker. This decision was then appealed to the Full Federal Court and in separate judgments was dismissed on 7 March 2008 (Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340).

Evidence in relation to the proposed act

Government party documentation establishes the following notable underlying land tenure on the proposed licences:

E08/1754 - Vacant Crown Land designated CPL 34 (being the former Wanna Pastoral Lease 3114/1237 purchased by the Department of Conservation and Land Management (‘CALM’) and vested in the Department of Environment and Conservation) (100 per cent overlap); and
E08/1778 - Dooley Downs Pastoral Lease 3114/773 (81 per cent overlap) and Vacant Crown Land designated CPL 34 (being the former Wanna Pastoral Lease 3114/1237 purchased by CALM and vested in the Department of Environment and Conservation) (19 per cent overlap).

Department of Indigenous Affairs (‘DIA’) documentation provided by the Government party shows there are no sites registered under the Aboriginal Heritage Act 1972 (WA) overlapping the proposed licences.
Mapping provided by the Tribunal’s geospatial services unit shows Ullawarra Aboriginal community located between 60 and 90 kilometres to the west of the proposed licences, the town site of Paraburdoo between 90 and 100 kilometres to the north east, and Innawonga and Wakathuni Aboriginal communities some 30 and 40 kilometres further to the north east of Paraburdoo.
Government party documentation indicates no ‘live’ or ‘pending’ tenements overlapping the proposed licences. Previously granted ‘dead’ tenements include:

Over E08/1754 - E08/916 granted in April 1997 and forfeited in November 1998 overlapping at 8.3 per cent; and
Over E08/1778 - E08/1017 and E08/1018 granted in October 1997 and surrendered in August 1999 overlapping at 27.8 and 28.3 per cent respectively.

The Tribunal’s determination is made on the basis that the following conditions and endorsements will be imposed on the grant of the exploration licences.
The Government party will impose the standard conditions for the grant of all exploration licences in Western Australia (see Maitland Parker at [21] Conditions 1-4). Additional conditions (5-6) to be imposed on E08/1778 require the pastoral lessee to be notified of the grant of the licence and of certain exploration activities.
In respect of those areas within the proposed licences, formerly part of the Wanna Pastoral Lease, designated CPL 34, three additional conditions will be imposed (designated conditions 7-9 in respect to E08/1778):
‘5.Prior to any ground-disturbing activity, as defined by the Director, Environment, DoIR the licensee preparing a detailed program for each phase of proposed exploration for approval of the Director, Environment, DoIR. The program to include:
·   maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps, drill sites and any other disturbances;
·   the purpose, specifications and life of all proposed disturbances;
·   proposals which may disturb any declared rare or geographically restricted flora and fauna; and
·   techniques, prescriptions and timetable for the rehabilitation of all proposed disturbances
6.The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the licence to the satisfaction of the Director, Environment, DoIR. Such rehabilitation as is appropriate and may include:
·   stockpiling and return of topsoil;
·   backfilling all holes, trenches and costeans;
·   ripping;
·   contouring to the original landform;
·   revegetation with seed; and
·   capping and backfilling of all drill holes.
7.Prior to the cessation of exploration/prospecting activity the licensee notifying the Environmental Officer, DoIR and arranging an inspection as required.’
The Government party will also impose a condition which will require the grantee party to execute in favour of the Jurruru People the Regional Standard Heritage Agreement (RSHA) endorsed by peak industry groups and the Pilbara Native Title Service within 30 days of a request by the native title party which must be made within 90 days of the grant of the licences.
The following Endorsements (which differ from conditions in not making the licensee liable to forfeiture of the proposed licence for its breach) will be imposed.

The licensee’s attention is drawn to the provisions of the Aboriginal Heritage Act 1972 (WA) and any Regulations thereunder; and
The licensee’s attention is drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.

The Government party provided a Statement of Contentions and on 8 October 2009 ‘Reply by the Government party to Contentions by Objectors in Reply to Grantee Party’s Contentions’.

Contentions and evidence provided by the native title party

The native title party has provided the following documentation:

Native title party statement of contentions dated 15 June 2009 (lodged with the Tribunal on 22 June 2009)
Affidavit of Stephen Wayne Morgan, anthropologist, sworn 15 June 2009 (lodged with the Tribunal on 22 June 2009)
Affidavit of Penelope Isabel Muecke, solicitor, sworn 15 June 2009 (lodged with the Tribunal on 22 June 2009)
Affidavit of Stephen Wayne Morgan, anthropologist, sworn 13 July 2009 and attachments (lodged with the Tribunal on 14 July 2009)
Affidavit of Penelope Isabel Muecke, solicitor, sworn 13 July 2009 and attachments (lodged with the Tribunal on 14 July 2009)
Affidavit of David Smirke sworn 15 July 2009
Affidavit of Toby Smirke sworn 15 July 2009
Photocopy of ‘Wanna know a secret?’ by Samille Mitchell and Brett Fitzgerald from Landscope vol 20 Number 3 Autumn 2005. The article outlines the flora, fauna, landscape, Aboriginal history and station history of Wanna Station purchased by CALM in June 2003.
Native title party contentions in response to the grantee party dated 13 August 2009
Affidavit of Penelope Isabel Muecke, solicitor, sworn 12 August 2009 and attachments (lodged with the Tribunal on 13 August 2009)
Native title party contentions in reply to the grantee party dated 22 September 2009

The evidence of the native title party is, for the main, set out in the affidavits of David Smirke and Toby Smirke sworn 15 July 2009. By way of the affidavit of Penelope Muecke sworn 12 August 2009, the native title party requested that minor errors in the affidavits be corrected under the ‘Slip Rule’ (para 2). The affidavits, with corrections, are set out in full below:

Affidavit of David Smirke

‘I, DAVID SMIRKE of the Wakathuni Community situated between Tom Price and Paraburdoo in the State of Western Australia, pensioner, hereby affirm:
1.     I am a senior Elder (junyjunya) of the Jurruru and an applicant of the Jurruru native title claim. I am recognised under the traditional Jurruru laws as being responsible for, and speaking for the Jurruru country.
2.     I was born at a crossing of the Ashburton River (Gubara) near a waterhole (yinda) called Bilyabilyangu. This place is a bit special to me now. My Father was Jimmy Smirke and he was a Jurruru man, and so were his parents. My mother was Alice Wilyardany and she was a Kurrama woman.
3.     I grew up on Ashburton Downs station and Kooline Station where I learned about Jurruru culture and life from the old people (Jurruru ancestors) who were living there. Ashburton Downs country is part of Jurruru country.
4.     I have also worked on most of the stations in Jurruru country. My father worked on these stations and I worked with him from a young age.
5.     As a senior Elder it is my responsibility to look after and protect the county. In accordance with this responsibility I have the right to be asked by people if it is all right to go on Jurruru country. I also have the right to speak about the country and about decisions relating to it and to be asked about any activity that might be planned on the country. This right derives from knowledge and seniority within the Jurruru people, and was passed to myself and my brother Toby by our father Jimmy.
6.     We still practice our culture on Jurruru country. Our young men are still initiated and we still hunt for food and prepare it in the traditional way.
7.     There are many important places on our country. These places have Jurruru names put there a long time ago from the dreaming (munguny) from the time when everything was soft (ngura nyujunkamu). Jurruru country is marked by Jurruru names - that’s how we know it is Jurruru country. The language belongs to the country and that is how we know we belong to the Jurruru country. It was given to the old people a long time ago.
8.     Also animals and people have Jurruru names. Thuru is the name of the Jurruru dreamtime snake. We also give our people bush names. These are only used by close family and friends. They are often from the Jurruru country where that person was born.

9. We are all joined to the country and everything in it because it is Jurruru country and we are Jurruru descendents. That makes it special and means it is our country to look after and keep healthy, and this also gives us rights in our country.
10. I was at a meeting in Onslow on 3 October 2007, Aurora Minerals sent along a representative to talk to us about what they were planning to do on our country. This man talked about a track that the company had touched up so the helicopter could land and refuel. He said they had not done any ground disturbing work and so did not need to do heritage surveys.
11. At a meeting on 30 April 2009 we saw a map of the Jurruru area and were told about the DEC reserve and blocks of unallocated crown land. We could see that the Kenneth and Minnierra Ranges and the Capricorn Ranges came into these 2 pieces of land. We know that these ranges have a lot of important Jurruru sites in them, like rock carvings, campsites, waterholes, and burial places, meeting grounds and ceremonial sites including men’s only sites. I traveled all through that area with my father when I was a kid.
12. At this meeting on 30 April 2009 we were also told that the Aurora tenements are all over those ranges. They have been exploring the area from a helicopter with radar. They want to start putting down drill holes. But they don’t want to do surveys.
13. At this meeting questions were asked about the old track. People were saying it had been made into a big road.
14. On 30 June 2009 Stephen Morgan, an anthropologist with PNTS came to Paraburdoo. Toby and I went with him down to Pingandy and found this road. It had definitely been graded and in places it looked like a bulldozer was used.
15. Stephen had a video camera and a GPS and he took photographs and marked points as we drove along it. It goes right between the ranges.
16. Aurora did not ask us about this new road even when they were supposed to. We don’t know what they destroyed. When they destroy places they destroy a part of Jurruru and Jurruru people. They should talk to us before they do that. If they start doing that in the gorge country without talking to us they will do a lot of damage. There’s a lot there.’

Affidavit of Toby Smirke
‘I TOBY SMIRKE, of ... Paraburdoo in the State of Western Australia, hereby affirm:
1.     I am a senior Elder of the Jurruru and an applicant of the Jurruru native title claim. I am recognised under the traditional Jurruru laws as being responsible for, and speaking for the Jurruru country.
2.     I was born at Budari (Dead Horse Well), a short distance north of the Ashburton River, on Jurruru country on 1 July 1944, and that country was given to me by my father. My Father was Jimmy Smirke and he was a Jurruru man, and so were his parents. My mother was Alice Wilyardany and she was a Kurrama woman.
3.     I grew up on Ashburton Downs station and Kooline Station where I learned about Jurruru culture and life from the old people (Jurruru ancestors) who were living there. Ashburton Downs country is part of Jurruru country.
4.     I have also worked on most of the stations in Jurruru country - on Ashburton Downs Station, Wyloo Station and Cheelah Plains Station. I was manger of Kooline Station and I helped set up Pingandy Station when that was first started.
5.     As a senior Elder it is my responsibility to look after and protect the county. In accordance with this responsibility I have the right to be asked, and to grant permission to enter the country; to speak about the country and about decisions relating to it; and to be asked about any activity that might be planned on the country. This right derives from knowledge and seniority within the Jurruru people, and was passed to myself and my brother David by our father Jimmy.
6.     We (the Jurruru people) have the right by our law to camp on Jurruru country and to take bush foods. We also have the right by our law to use minerals found within our country such as red ochre (madarlba).
7.     We still practice ritual traditions such as initiatory rituals for our young men, although not always on Jurruru country. However ritual grounds that were used in the past on our country continue to be important.
8.     When we are out on our country we still hunt to get our meat (mandu). We hunt for kangaroo, bush turkey, goanna, emu and fish in addition to others, and we still take and prepare the mandu in the old way set out by our old Jurruru rules.
Tenement in site rich area
9.     I have seen a map that shows the area where these exploration tenements are. I know Aurora wants to have them granted to it. They are in an area where exploration tenements have already been granted to Aurora in the Jurruru claim area.
10. The tenements are all along the Kenneth Ranges (Marabaiya) and the Capricorn Ranges and the area in between. Within the tenement areas there are many sites with rock carvings, campsites, waterholes, burial sites, meeting grounds and ceremonial sites including men’s only sites.
11. I traveled all through that area with my father who was a dogger. I remember I was there when I was 13 years old and we camped at Gumai with my grandfather and my mother, my sister and father. This is a permanent rock pool in the Marabaiya and people have been going there for a long time to get water particularly in drought time.
12. In 2002 I went back there in a helicopter with the PNTS people including the anthropologist, Nic Green, my brother David Smirke (also a senior Jurruru law man) and my 2 sons Alloway and Kieran, and some of my nephews. We saw many artifacts there. Also, my grandfather died there and is buried near there.
13. I showed Nic Green and everyone on the 2002 trip many of the old places such as Mindyari pool on the Ashburton River; Gulymunga, another old camping ground with a spring; Wahgoodgi pool on Irrigully Creek, and a rock art site that my father took me to. There is rock art right through the ranges that I was shown as a kid by the old people. The only places they did not show me were the secret places that a kid is not allowed to see.
14. I also told everyone on the 2002 trip the Jurruru names of some of the plants and what we used them for, like Nidi bush. You boil the leaves to make a medicine. Then there is Jimmi fruit that people eat. I also told everyone about getting water out of a tea tree (Coolinbungarra) at that place.
15. One of the big camping places we visited on the helicopter trip has many rock carvings and deep waterholes. We could see the rock carvings from the helicopter as we flew along the creek. When we landed there were many artifacts. Nic Green said the camp was in perfect condition and had not been disturbed for a very long time. I even found an old rock toy of mine that I used to play with there. There are stories that go with all the rock carvings. We still pass these stories on to our children and their children.
16. All these ranges are very difficult to get into. There are many steep gorges. You have to walk in through the ends of the gorge. That is why nobody goes there much anymore, that is why everything is still untouched. Some of these places are very special not just because there are rock carvings and special places there. The trees grow differently in there and there are 1ots of different animals. It is very different to how things are outside the gorges.
17. The old people had to follow these gorges where the rivers and creeks flowed to get from one place to another. Even when my parents and grandfather were working on the stations we used the gorges to get from one place to another. When the work finished on one station we took our pack horses from one station to another through these gorges.
18. On the trip in 2002 we only were able to visit a small area of the ranges but all the ranges are full of gorges. There are lots of special places there like Ford Creek, Secret Creek, and Irregully Creek.
Aurora Resources
19. I attended a meeting of the Jurruru community on 3 October 2007 in Onslow. John Jordan attended as a representative for Aurora.
20. At this meeting John Jordan spoke of a track stretching across Jurruru country running between the Capricorn ranges on the one side, and the Kenneth and Minnierra ranges on the other. He said it was an old pastoralist’s track and came to an end before Wandarry Creek. He told us that Aurora had touched it up so they could refuel their helicopter from the track. He said he did not have to consult us because they had only touched it up. He told me that if they wanted to do anything more to the track he would come to us and arrange to do surveys.
21.   On the 2002 helicopter trip we flew over this track. It’s been there a long time, just a simple track that was used by the pastoralists on mill runs. It was pretty rough just used for mustering and that. It was still like that in 2004. I did not see a wide road. There was no road that came south to the bottom of the Kenneth Ranges and joined the Dooley Downs/Pingandy Road.
22. After that meeting in 2007, on a date I cannot remember, I went to have a look at the track. I drove down the Dooley Downs/Pingandy Road and found a 2 blade wide graded road running north west between the Kenneth Ranges and the Capricorn Ranges. I drove along it for a bit and then turned back.
23. The time before this when I went down the Dooley Downs/Pingandy Road there was no road going off there. That road was not there before. Before it was just that Pastoralist’s track.
24. I asked PNTS to investigate this matter as I did not know anything about this road and nor did any other Jurruru people.
25. On 30 June 2009 Stephen Morgan, an anthropologist with PNTS came to Paraburdoo and took me and my brother David down to the Dooley Downs/Pingandy Road. It took us all day to get there and back as the only way to get there is very roundabout.
26. We found the road I had started up before. Stephen had a video camera and a GPS. We drove up the road for about 60 Km. It is a very good road made with a bulldozer and a grader. We could make out an old track that the new road sometimes followed and sometimes did not. We could see where they had to use a bulldozer to clear rocks and trees to make totally new sections of road.
27. At the Jurruru Community meeting on 3 July 2007 Penelope Muecke, the Jurruru Claim lawyer form PNTS, told us that Aurora wanted to negotiate a claim wide agreement with us. We instructed PNTS to negotiate with Aurora and come back to us with their offer.
28. At the Jurruru community meeting on 30 April 2009 Penelope Muecke and Sanna Nalder, an anthropologist from PNTS, told us that Aurora wanted us to accept heritage conditions that were less than those provided by the Regional Standard Heritage Agreement which Aurora had already signed. They wanted us to mark our sites on a map and allow them to do reconnaissance drilling everywhere else without surveys. We would not agree because not all our sites are recorded so we can’t mark them on a map. We also do not want people drilling without surveys.
29.   Our lawyer, Penelope Muecke, told us that after this Aurora stopped negotiating with PNTS. They said they would not negotiate with the Jurruru any more.
30.   We are very concerned about all this. Aurora signed the Regional Standard Heritage Agreement. That means they are supposed to take us out on surveys before they do ground disturbing work. They did not do that. Now we don’t know what they will do next. They have shown no respect for our country and what it means to us.’
David and Toby Smirke are both persons comprising the applicant for native title, registered native title claimant and native title party and both affirm they are Jurruru senior elders who are recognised under traditional Jurruru laws as being responsible for, and speaking for Jurruru country. I accept they have authority to speak on behalf of the native title party and accept their evidence which is uncontested.

Contentions and evidence provided by the grantee party

The grantee party has provided the following documentation:

Grantee party statement of contentions lodged 20 July 2009
Grantee party supplementary statement of contentions dated and lodged with the Tribunal on 24 July 2009
Affidavit of Phillip Sidney Redmond Jackson, grantee party director, sworn 3 September 2009 and attachments
Grantee party contentions in response to contentions of the native title party dated 22 September 2009 (lodged with the Tribunal on 8 October 2009).

Community or social activities (s 237(a))

The Tribunal is required to make a predictive assessment of whether the grant of the proposed licences and activities undertaken pursuant to the grants 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] FCA 19; (2001) 108 FCR 442 at 449-450 [23]) (‘Smith’). Direct interference involves an evaluative judgment that each 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 [26]). The assessment is also contextual, taking account other factors which may already have had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (Smith at 451-452 [27]).
The Government party relies on relevant aspects of its regulatory regime under the Mining Act 1978 (WA), including the provisions of s 63, conditions to be imposed on exploration licences, s 20(5) in relation to pastoral leasehold areas and the additional conditions/endorsements outlined above, to contend that there is not likely to be direct interference with the carrying on of community or social activities by the native title party in relation to the area of land concerned. I have previously found and confirm that s 20(5) in relation to pastoral leases is of little assistance to the Government party (Walley at [37]).
The affidavits of David and Toby Smirke contain general and limited statements regarding current activities such as hunting, initiation and the practice of culture (David Smirke, para 6 and Toby Smirke, paras 6-8) and historical activities of members of the native title party associated with station life, old camps, birthplaces and dingo trapping on ‘Jurruru country’. Some further evidence is contained in the affidavits of anthropologist Stephen Morgan. Toby and David Smirke informed him that they had been employed in most of the stations in the Ashburton area and Toby had been manager at Pingandy Station (which is some distance to the east of E08/1778) and they knew the area well. They also confirmed to him that their father was a ‘dogger’ (dingo trapper) and they travelled with him all through Jurruru country as children (Stephen Morgan’s affidavit, 13 July 2009 para 6). This affidavit contains details of a visit to the general area undertaken by Mr Morgan with Toby and David Smirke on 1 July 2009 for the principal purpose of assessing the extent of the upgrade of a track by the grantee party (see below). Mr Morgan’s notes of that trip record that Toby Smirke was last at a stop they made near Wandarry Creek in 1962. This stop is some 10 kilometres to the north of E08/1778 and the evidence supports a finding that the general area of the proposed licences is not currently frequented by members of the claim group on a regular or intensive basis.
The native title party has not provided any specific evidence of community and social activities that are currently conducted over the particular area of the proposed licences, nor is there any reference to the frequency of which those activities might occur or the members of the native title party involved. Nor is there any evidence that any members of the native title party reside in or near the proposed licences. The established Aboriginal communities, Wakathuni community (where David Smirke lives) and Paraburdoo (where Toby Smirke lives) are a considerable distance away. In the absence of any specific evidence of contemporary activities, I cannot find that exploration activities carried out over the area of the proposed licences will cause direct interference to the native title party’s community or social activities.
The evidence establishes that some recent exploration activity has occurred in the area of the proposed licences and in the vicinity between 1997 and 1999 but based on the very limited evidence of historical or current community or social activities I doubt that these exploration activities would have affected the native title party’s activities in any significant way if at all.
The Tribunal has found on numerous occasions that exploration activity is temporary, limited to the areas in which exploration is taking place and that significant ground disturbing exploration will only occur at any one time over a small area. The Tribunal must consider whether direct interference with the native title party’s community or social activities is likely, given the grantee party’s temporary and limited use of the area. Furthermore, the area of the native title party’s claim is approximately 9,824 square kilometres, much larger than the area of the proposed licences. The evidence of current community or social activities is sparse but on the assumption that they do take place over the whole of the claim area it is less likely that exploration on the proposed licences will interfere with them (Cheinmora and Others v Heron Resources Ltd and Another [2005] NNTTA 99; (2005) 196 FLR 250 at 262 [31] citing Robin Boddington & Ors (Wajarri)/Western Australia/Bacome Pty Ltd, NNTT WO02/369, [2003] NNTTA 62 (9 April 2003), John Sosso at [43]-[44]).
Taking all these factors into account I find that the exploration activity is not likely directly to 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 issue the Tribunal is required to determine is whether there is likely to be (in the sense of there being a real risk of) interference with areas or sites of particular (i.e. more than ordinary) significance to the native title party in accordance with their traditions. As stated, the Register kept under the Aboriginal Heritage Act (‘AHA’) shows no registered sites within the proposed licence areas, but this does not mean there may not be other sites or areas of particular significance to the native title party within those areas. The Register does not purport to hold records 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. Although the native title party has contended to the contrary I am satisfied that the AHA protects all Aboriginal sites, whether on the Register or not.
The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal, recently in Maitland Parker (at [31]-[38], [40]-[41]). While the Tribunal has usually found that the site protective regime based on the AHA is sufficient to ensure that interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, NNTT WO04/89, [2007] NNTTA 15 (1 March 2007), Daniel O’Dea (at [81]-[91])). The Tribunal must consider, based on the facts of particular cases and the nature and extent of areas or 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. In considering this issue the intentions of the grantee party and its attitude to the site protection regime is a relevant matter.
The major issues in these proceedings are: first, whether the area of the proposed licences is ‘site rich’ thus increasing the possibility that the AHA regulatory regime may not be adequate to make interference with the sites unlikely; and second, whether the grantee party can be relied on to respect the regulatory regime under the AHA for the protection of sites given allegations made by the native title party that it has not done so in the past, particularly in relation to the upgrade of a track which passes through exploration tenements already held by the grantee party (see affidavits of David Smirke, paras 10-16 and Toby Smirke, paras 19-30).

The general factual context in which this issue is to be considered can be summarised as follows. The Jurruru native title claim extends from approximately 30 kilometres south-west of Paraburdoo in a southerly direction for about 70-80 kilometres and in a westerly direction for about 120-130 kilometres. A large area of the claim contains ranges and hills. The Capricorn Range is located in the centre of the claim area and the Ashburton River runs through or close to it. Further south near the southern boundary of the claim are the Minnierra and Kenneth Ranges where the proposed licence areas are located. E08/1754 is located in the south-west of the claim area and E08/1778 about 15 kilometres from it at their closest points to the south-east. To the north of the proposed licence areas, between the Minnierra and Kenneth Ranges and the Capricorn Range and Ashburton River are a number of exploration licences held by the grantee party or companies associated with it and which were granted subject to a Regional Standard Heritage Agreement (‘RSHA’).
The native title party’s evidence and my comments on it are as follows:

David and Toby Smirke

‘... a lot of important Jurruru sites’ in the Kenneth, Minnierra and Capricorn Ranges ‘like rock carvings, campsites, waterholes, and burial places, meeting grounds and ceremonial sites including men’s only sites’ (Affidavit of David Smirke, para 11).
‘The tenement areas are all along the Kenneth Ranges (Marabaiya) and the Capricorn Ranges and the area in between. Within the tenement areas there are many sites with rock carvings, campsites, waterholes, burial sites, meeting grounds and ceremonial sites including men’s only sites’ (Affidavit of Toby Smirke, para 10).
Comment: The proposed licences are located in the Minnierra (E08/1754) and Kenneth Ranges (both E08/1754 and E08/1778). The Capricorn Range is some 30 kilometres to the north, although it appears from the topographical map that the three Ranges adjoin and merge into each other. It is not accurate to say that the proposed licence areas are in the Capricorn Ranges or in the area between them and the Kenneth and Minnierra Ranges.
‘a permanent rock pool in the Marabaiya’ (Affidavit of Toby Smirke, para 11).
Comment: Apart from saying this site is in the Marabaiya (Kenneth Range) there is no evidence to identify its location in relation to the proposed licence areas.
Burial site for Toby Smirke’s grandfather near the area visited by helicopter with Nic Green in 2002 (Affidavit of Toby Smirke, para 12).
‘One of the big camping places we visited on the helicopter trip has many rock carvings and deep waterholes. We could see the rock carvings from the helicopter as we flew along the creek. When we landed there were many artifacts. Nic Green said the camp was in perfect condition and had not been disturbed for a very long time. I even found an old rock toy of mine that I used to play with there. There are stories that go with all the rock carvings. We still pass these stories on to our children and their children.’ – visited on the helicopter trip with Nic Green in 2002 (Affidavit of Toby Smirke, para 15)
Comment: Again there is no evidence in the Smirke affidavits specifically to locate the burial site or the camp area in relation to the proposed licence areas. However, the evidence of Stephen Morgan (affidavit 15 June 2009 (para 7) and 13 July 2009 (para 14)) about the 2002 helicopter trip and his visit to the area on 1 July 2009 with David and Toby Smirke assist to do so. The camp area is located some 18 kilometres to the north of the E08/1778 area (see below).
‘Mindyari pool on the Ashburton River; Gulymunga, another old camping ground with a spring; Wahgoodgi pool on Irrigully [Irregully] Creek, and a rock art site that my father took me to.’ (Affidavit of Toby Smirke, para 13).
Comment: The Ashburton River runs through the Capricorn Range some 30 kilometres to the north of the proposed licences. Irregully Creek runs to the north-west from the near vicinity of the proposed licence E08/1754 and joins the Ashburton River some 50 kilometres away. There is no further evidence to identify the specific location of Wahgoodgi pool and none to identify the old camping ground or rock art site. Sites on Ashburton River and Irregully Creek are unlikely to be interfered with.
‘rock art right through the ranges’ (Affidavit of Toby Smirke, para 13).
Comment: There is no evidence specifically to locate a rock art site in relation to the proposed licence areas.
‘... all the ranges are full of gorges. There are lots of special places there like Ford Creek, Secret Creek and Irregully Creek.’ (Affidavit of Toby Smirke, para 18)
Comment: I have already referred to the location of Irregully Creek and Ford Creek at its nearest point is some 10 kilometres to the north of E08/1778. They are unlikely to be interfered with by the exploration activities. The location of Secret Creek is not identified in the evidence.

Stephen Morgan – affidavit of 15 June 2009

By use of the GPS coordinates, provided by Nic Green, Mr Morgan says the male restricted sites identified by Toby Smirke during the 2002 helicopter heritage survey are ‘located about 10 to 20 kilometres north of the Kenneth Range between the registered Aboriginal sites Cheyne Spring (DIA 11263), Pingandy Station (DIA 8999) and Wanu Wanu (Seven Mile Creek) (DIA 17435)’ (para 7).
Comment: Cheyne Spring is some 20 kilometres to the north-west of the edge of E08/1754, Pingandy Station site is some 10 kilometres to the north-east of E08/1778 and Wanu Wanu is over 60 kilometres to the north east of it (10 kilometres south of Paraburdoo). The male restricted sites are located to the north of the Kenneth Range and hence to the north of the proposed licence areas. This evidence does not establish the existence of these sites on or near the proposed licence areas. They are not likely to be interfered with by any exploration activity on them.
Informed by the Claim Lawyer that during discussions at a meeting on 30 April 2009 David and Toby Smirke recounted how they had travelled through that whole area with their father when he worked as a dingo trapper and that there are numerous sites running continuously through the Minnierra and Kenneth Ranges (para 8).
Mr Morgan is of the opinion that these sites ‘may’ form a pattern of occupation from the Kenneth Range to the Minnierra Range and north to the Ashburton River consistent with traditional customs and law practiced by Jurrurru, and represents a unique and significant aspect of Aboriginal heritage in Western Australia (para 9).
Comment: This evidence does not specifically identify the location of these sites. Further Mr Morgan does not express a firm or concluded view about the significance of them. The area identified by Mr Morgan includes areas where exploration licences have already been granted subject to a RSHA (i.e. north of the proposed licences as well as the Minnierra and Kenneth Ranges).

Stephen Morgan – affidavit of 13 July 2009

Mr Morgan’s affidavit deals with the road trip made on 1 July 2009 with Toby and David Smirke principally for the purpose of examining the upgraded track (see below). In relation to Aboriginal sites the following evidence is relevant.

‘Although we had not located any of the Aboriginal sites identified in 2002 or the registered DIA site known as 8999 Pingandy Station within Aurora Minerals tenement E08/01691 because the country is rough. I am informed by Toby and David that the Aboriginal sites visited in 2002 with Dr Nic Green are about 8 kilometres north-west of the point at which we turned back. Both the Jurruru Elders expressed concern that if mining took place in the gorges Aboriginal sites would be lost to Jurruru culture and tradition.’ (para 14)
Comment: This evidence from Mr Morgan establishes a more precise location of the sites identified in the 2002 helicopter trip with Nic Green referred to in the affidavit of Toby and David Smirke and confirms that they are to the north of the proposed licence areas. The point at which Mr Morgan’s party turned back is specified by him. It is near Wandarry Creek Gorge which is some 8-10 kilometres north of the northern edge of E08/1778. It appears to be on the area of already granted tenements to Aurora interests (E08/1693) and close to another one (E08/1694). This places the specific sites visited in the 2002 helicopter survey some 18 kilometres to the north of E08/1778 and confirms the evidence in Mr Morgan’s affidavit of 15 June 2009. E08/1754 is some 30-40 kilometres to the west and not relevant to this discussion.
‘I am further informed by Toby and David Smirke that some of the Aboriginal sites in these gorges [near the sites visited in 2002 with Nic Green] contain engravings and rockshelters which are very important to Jurruru men. There are also many artefact, grinding patches and named rockholes containing permanent water.’ (para 15)
Rockshelters, engravings, artefact, grinding patches and rockholes are located in the gorges within the vicinity of DIA site 8999 (paras 14-15).
Comment: Again, this evidence is of a general nature and it is not clear where the gorges referred to are located in relation to either Pingandy Station (DIA site 8999) or the area of E08/1778. The topographical map shows that there are likely to be gorges between the Pingandy Station site and E08/1778 (a distance of some 10 kilometres) but it is not possible to say with certainty whether these are the gorges referred to. It is even less clear whether the specific gorges referred to extend to and include part of the E08/1778 area. E08/1754 is over 50 kilometres to the north-west of the Pingandy Station site and not directly relevant in this context.

Identification of a site rich area

The native title party contends that the evidence establishes the area of the proposed tenements as ‘site rich’ particularly in the gullies and gorges within the area (paras 20, 24). This term is not taken from the Act but is a shorthand description of an area where there are a considerable number of individual sites or an area of the relevant kind and which cumulatively illustrates the overall spiritual importance of the land (Ward v Northern Territory of Australia [2002] NNTTA 104; (2002) 169 FLR 303 at 327 [82]). The fact that there are a number of sites on the Register may assist in making a finding of this kind but is not on its own either sufficient or necessary to enable a finding to be made. The importance of a finding that an area is rich in sites is that it increases the possibility that the site protection regime around the AHA will not be adequate to ensure that there is not likely to be interference with sites of particular significance.
The native title party has attempted to establish that a very large part of their claim area is an area of special significance to them in accordance with their traditions or at least contain many sites of this kind. Generally this is the area south of the Ashburton River in the Capricorn, Minnierra and Kenneth Ranges. In my view, the evidence is too general to support the contentions of the native title party. Further there is no evidence which identifies any specific sites of significance within the proposed licence area, or which explains the particular significance of these sites to the native title party. This is the case despite the fact that the 2002 helicopter survey was conducted in the general area of them. The sites identified as part of the 2002 helicopter survey are likely to be sites of the relevant kind, especially the restricted men’s sites, but are some distance from the subject tenement areas and unlikely to be interfered with by the proposed exploration. Given the general nature of the evidence, I cannot conclude that the relevant area, that is, the area of the proposed licences is site rich.
The only evidence of relevance to the subject tenements is the general evidence of sites in the Minnierra and Kenneth Ranges and to the north of them. There is no doubt that the proposed licences are to be granted over a hilly area which contains gorges and gullies which the native title party’s general evidence identifies as places where there are likely to be sites of the relevant kind. In my view the whole of the evidence enables the inference to be drawn that on balance there are probably sites of particular significance to the native title party within the proposed licence areas.
Even though I have not determined that the area of the proposed licences is ‘site rich’ the fact that there probably are at least some sites within them which are of particular significance to the native title party means that the efficacy and protective effect of the AHA site regulatory regime needs to be considered in the context of the intentions and past attitude and actions of the grantee party. If there is no evidence to the contrary the Tribunal is usually entitled to act on a presumption of regularity and that the grantee party will comply with the law and agreements entered into. In this case the native title party says such evidence exists and that it would be unsafe to rely on the usual approach taken by the Tribunal. In other words if it can be shown that the grantee party has a contemptuous or cavalier attitude to its obligations under the AHA then even if the area is not ‘site rich’ there would be a likelihood of interference with a relevant site. The question now is whether the grantee party’s approach in particular to the track upgrade demonstrates such an attitude.

Intentions and attitude of the grantee party towards the regulatory regime based on the AHA and the Regional Standard Heritage Agreement (RSHA)

The evidence establishes sites which exist within the Minnierra and Kenneth Ranges or between them and the Capricorn Range that are probably in areas covered by already granted exploration licences where the native title party has accepted the RSHA as an appropriate means of ensuring they are not interfered with. Specifically, the site visited in 2002 by helicopter appears to be near the northern edge of an already granted tenement as does the Pingandy Station registered site. Despite the importance of these areas the tenements were granted without objection and subject to the RSHA.
The nature of the RSHA has been described by the Tribunal previously (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at 366-371 [15]-[35] (‘Champion’)). The Government party’s position is that the standard RSHA will in most cases be sufficient to ensure that there is unlikely to be interference with sites of particular significance. It requires a grantee party, by way of a statutory declaration, to show it has offered to enter into a RSHA with the relevant native title party by executing and sending it to the native title party before the Government party will include the expedited procedure in the s 29 notice. In this matter the grantee party has complied with this requirement and, although subsequently in negotiations with the native title party it tried to modify its terms, it now accepts the RSHA.
In addition to this requirement and presumably in case there has been some problem with compliance with it, the Government party will impose the condition described above (see para [20]) which will ensure that the native title party can insist on the grantee party executing and being bound by a RSHA.
The grantee party contends that the regulatory regime imposed by the AHA and the RSHA will be sufficient to ensure that interference with sites is unlikely and that it has abided by the AHA and the RSHAs signed in relation to a number of its already granted tenements within the native title party’s claim area and will do so in relation to the proposed licences. The grantee party says it has not conducted any ground disturbing exploration activity on any granted tenements within the native title party’s claim area which is contrary to the Mining Act or the AHA or which would require consultation regarding heritage surveys under a RSHA.
The native title party refutes these contentions and says that the grantee party has conducted exploration activity being the upgrading of a track or road over its granted tenements contrary to the Mining Act and conditions imposed and without the consultation regarding heritage surveys as required by the RSHAs. In the light of this alleged failure, the native title party questions whether the regulatory regime based on the AHA and the RSHA is sufficient to make it unlikely that there will be interference with sites of particular significance which exist over the proposed licence areas.
The track the subject of this dispute runs off the Pingandy/Dooley Downs road and travels in a north westerly direction through a number of existing exploration licences held by the grantee party. The track is generally located some 10 kilometres to the north of the proposed licence areas. There is conflicting evidence about the extent of the work carried out by the grantee party. The native title party says that at a community meeting at Onslow on 3 October 2007 the grantee party representative (John Jordan) advised the group:

that track would be ‘touched up’ but not widened with the consent of the local pastoralists in order to enable road access to the area;
that the track was needed to get fuel to the area for the helicopter; and
the road is shown on all State road maps, but fades about Wandarry Creek onwards [probably towards the Pingandy Rd/Dooley Downs];
no licences were applied for from DoIR in relation to this work and no consultation occurred with the native title party.

The native title party contends that this information was misleading. Toby Smirke (affidavit paras 21-26) says that he flew over the track during the 2002 helicopter trip. It was a simple track used by pastoralists on mill runs, pretty rough and used for mustering. It was still like this in 2004 and was not a wide road. There was no road that connected the track from the bottom of the Kenneth Range to the Dooley Downs/Pingandy Road. After the 2007 meeting he looked at the track and found a two blade wide graded road running north-west between the Kenneth and Capricorn Ranges which had not been there previously. During the visit on 1 July 2009 with Stephen Morgan and his brother David, Toby Smirke said they drove along the road for some 60 kilometres. He said at that time it was ‘a very good road made with a bulldozer and a grader. We could make out an old track that the new road sometimes followed and sometimes did not. We could see where they had to use a bulldozer to clear rocks and trees to make totally new sections of road.’(affidavit paras 25-26)
The evidence provided by Mr Phillip Jackson (a Director of Aurora), is that between May and August 2007 the grantee party undertook consultation with pastoralists and relevant Government departments prior to conducting repairs on the existing track running through a number of granted tenements within the native title party’s claim area (Affidavit of Mr Jackson paras 5-9 and attachments A-B). On 15 June 2007, the grantee party wrote to the native title party and amongst other things, identified the existing track and indicated that repair work might be required and that at ‘no time did anyone at YLSC or the Jurruru raise any concerns with these plans’ (para 12 and attachment F).
With respect to the work done on the track Mr Jackson says (affidavit paras 21-24) that the grantee party did not at any time say that it upgraded the track to a road. The track was ‘widened’ in the process of being slightly straightened in comparatively short sections within vacant Crown land due to the width of the bulldozer grader and to ensure adequate clearance for support vehicles and caravans. He says the track is primarily a pastoralists’ track which has been there for decades and marked on publicly available maps. It was less well defined on the vacant Crown land but still present. The track had been refurbished in the past by pastoralists and the grantee party’s refurbishment had been done with the approval of pastoralists and affected land owners. In most places the refurbished track follows the pre-existing pastoral track but in some places where it was less well formed, maintained and windy, the refurbished track deviates slightly from it. At these places it was straightened as a safety measure and to reduce track damage from vehicles.

Mr Jackson also attests that ‘Gifford Creek Station did a cattle muster in late 2007 and again refurbished the track, after Aurora [the grantee party], again by grader, from Old Ullawarra up to Jessicas Bore’ (para 8 and attachment D). The suggested implication here is that some of the work which the native title party complains of was not done by the grantee party. The other inference suggested is that this confirms the track as one of general use, including pastoral, and not one specifically constructed for exploration activity.
Section 66 of the Mining Act states:
‘An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject —
(a)to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under sections 24, 24A or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land’
Section 63 of the Mining Act says:
‘Every exploration licence shall be deemed to be granted subject to the condition that the holder thereof will explore for minerals and —
...
(aa)will not use ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless —
(i)the holder has lodged in the prescribed manner a programme of work in respect of that use; and
(ii)the programme of work has been approved in writing by the Minister or a prescribed official;
(b)will fill in or otherwise make safe to the satisfaction of a prescribed official all holes, pits, trenches and other disturbances to the surface of the land the subject of the exploration licence which are —
(i)made while exploring for minerals; and
(ii)in the opinion of the prescribed official, likely to endanger the safety of any person or animal;’
Standard Condition 4 to be imposed by the Government party says:
‘Unless the written approval of the Environmental Officer, DoIR is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.’

This condition reflects the requirements imposed by s 63(aa) of the Mining Act, the prescribed official being the Environmental Officer, DoIR.

Relevant definitions in the Mining Act are:
‘ground disturbing equipment means —
(a)        mechanical drilling equipment;
(b)        a backhoe, bulldozer, grader or scraper; or
(c)        any other machinery of a kind prescribed for the purposes of this definition
Machinery includes all mechanical appliances of whatever kind used or intended to be used for any mining purpose’
The RSHA (clauses 6-8) requires that parties consult regarding heritage surveys before any exploration activity is undertaken other than activity defined as Low Impact Exploration. Low Impact Exploration is defined to include aerial surveys, geological mapping, metal detecting, rock chip, hand specimen and soil and drainage sampling, only using hand-held tools and non-ground disturbing geophysical surveys including electrical and magnetic surveys and incidental activities) (RSHA clause 1). Exploration Activity is defined as any activity that may be conducted on an Exploration Tenement pursuant to the Mining Act
The native title party says that the exploration licences granted under the Mining Act govern the work on the track which was done for the purposes of exploration, i.e. for the purposes of facilitating exploration by helicopter on these tenements and others (including when granted the proposed licence areas). It says that the ‘works as necessary’ referred to in s 66(b) of the Mining Act includes work undertaken by the grantee party on access roads. The native title party also says (which is admitted) that the cost of the works were included in the acquittal of the grantee party’s expenditure commitments required under the granted exploration licences.
The grantee party asserts that track maintenance or upgrading of this nature is not an ‘Exploration Activity’. In fact, the grantee party was not conducting any ‘Exploration Activity’ in the area at that particular time.
The Government party contends (Reply 8 October 2009, para 16) that the track works are properly characterised as work done on behalf of, and with the authority of the owners, managers or pastoral lessees of the land traversed by the track to improve the track in accordance with their wishes and those of the regulatory authorities even though done to gain easier access to land for exploration. It says the work is not done pursuant to an exploration licence and hence is not either ‘Exploration Activity’ or ‘Low Impact Exploration’ as defined in the RSHA.
If in fact the work on the track was pursuant to the exploration licences and hence contrary to their conditions and the terms of the RSHA, the Government party says that the worst that can be said is that the grantee party made an honest mistake. There is evidence that the grantee party has in all other respects been aware of its obligations and complied with them.
There is no necessity to resolve the dispute between the native title party and grantee party about the extent of ground disturbance involved in the upgrading of the track. On the basis of the grantee party’s evidence alone I am satisfied that a bulldozer and or a grader was used to upgrade the track which in parts was widened and straightened. If done pursuant to an exploration licence then it would be covered by s 63(aa) of the Mining Act and Condition 4. A bulldozer or grader falls within the definition of ground disturbing equipment for which a program of work would be required. The use of such equipment without prior approval is prohibited by Condition 4 which specifically covers the use of scrapers, graders and bulldozers. With respect to the RSHA, the activity undertaken goes beyond Low Impact Exploration and would require a Heritage Notice. I am satisfied that if the work carried out by the grantee party was pursuant to the already granted exploration licences then the grantee party did not comply with the Mining Act, conditions imposed and would have been in breach of the RSHA.
The more difficult question is whether the work on the track is covered by the Mining Act and the RSHA. The Mining Act permits an exploration licensee to explore for minerals and to carry out such works as are necessary for that purpose (s 66). The conditions relating to ground disturbing equipment are imposed in relation to that activity, i.e. ‘when exploring for minerals’. The RSHA applies in the case of the grant of exploration tenements and Exploration Activity which is defined to mean any activity that may be conducted on an Exploration Tenement pursuant to the Mining Act.
There is no doubt that the track upgrade occurred in areas covered by exploration licences and work done by the grantee party was to facilitate its exploration for minerals. On the other hand, the track cannot be said to be one constructed or upgraded for the purposes of exploration alone as it was already there and used by pastoralists and for some non exploration activities. The resolution of this issue is potentially complex and I am not convinced that I have before me all the relevant material to come to a properly considered decision. I do not have submissions on the operation of the Land Administration Act 1997 or the relevant pastoral leases which might assist the Government party’s arguments. There is no evidence as to the legal status of the road even though it is shown on some publicly available maps. No evidence has been produced by the Government party of its proclamation as a road. I have no information before me about other approvals that may be required for such a track upgrade on vacant Crown land over which some of the work occurred. No doubt this could have been further pursued if I had considered it necessary.
In my view, it is again not necessary to decide this issue. For the purposes of this determination I am prepared to assume that the native title party’s argument is correct and that the grantee party did not comply with its statutory and agreement obligations in respect of the upgrade of the track. On this assumption the question to be determined is whether the grantee party could not be relied on to comply with the AHA and RSHA in future in respect of the proposed leases. Has the assumed behaviour of the grantee party in relation to the track upgrade been so disrespectful of the law making it probable that in future it may not comply with its obligations and thus, make it likely that sites of particular significance would be interfered with? If I were to come to this conclusion I would find the expedited procedure not attracted even though I am not satisfied that the areas of the proposed licences are site rich. In my view no adverse inference can be drawn about the grantee party’s future behaviour or intentions relating to site protection, even if the native title party is right about the grantee party’s legal obligation in relation to the upgraded track. The grantee party made what I regard as a genuine error not motivated by a desire to avoid the AHA. There is ample evidence to demonstrate the grantee party’s good intentions and actions with respect to Aboriginal heritage protection.
First, by letters dated 16 April 2007 and 15 June 2007 John Jordan (attachment E and F to affidavit of Phillip Jackson) advised Yamatji in general terms of their exploration intentions. Mr Jordan said he was writing in compliance with ‘heritage agreements’ which required the grantee party to keep the native title party informed of its activities. The letter of 16 April 2007 recognised the need for a heritage survey in the case of ground disturbance (percussion and diamond drilling and possible access tracks) and following initial airborne surveys. The letter of 15 June 2007 referred to the need for the track to facilitate helicopter surveys and refuelling. Mr Jordan said he intended to ‘drive’ the track ‘to verify that it can be used for accessing the area, or what needs to be done to repair it so it can be used.’ The location of the track was shown on a marked plan. Mr Jordan further advised that pastoral station owners and the Department of Environment and Conservation (‘DEC’) support the use of the track. The 15 June 2007 letter also referred to registered heritage sites identified by search of the DIA website which Mr Jordan said any exploration camps would be kept away from and that a formal heritage notice would be lodged if drilling targets were identified. No adverse response was forthcoming from the native title party in response to these letters.
Second, the pastoralists consulted raised no objection to the proposed work and nor did the Government Departments that were consulted. I am satisfied that the DEC were consulted about the proposal and were advised that it had ‘no issue’ with ‘upgrading sections of the Ex-Wanna Pastoral Lease now managed by the Dept’ (attachment B to affidavit of Phillip Jackson). There is also evidence that the grantee party consulted the Environmental Section of DMP and the Department of Planning and Infrastructure. There is no evidence to suggest that the Government Departments advised, as would be expected, if they considered that a Mining Act condition would be breached by an upgrade of the track. I accept that the Government Departments probably did not have the issue in dispute specifically drawn to their attention but the important point is that the grantee party acted in the honest belief that its proposed activities were not covered by its exploration licence and engaged in consultation with what it thought were relevant Government Agencies in relation to it.
Third, this lack of adverse advice and the fact that at least some of the road is marked on State maps and had previously been worked on by pastoralists provides a reasonable basis for a belief that the grantee party could upgrade the track without complying with the Mining Act or RSHA.
Fourth, the grantee party has entered into and complied with the RSHA in relation to existing tenements by giving Heritage Notices on 2 July 2008 and 23 September 2008 (attachments G and H to affidavit of Phillip Jackson). The Heritage Notices in these cases included a proposal to construct access tracks, indicating that the grantee party is aware of its obligations in respect of tracks which are created specifically for the purposes of exploration and supports the inference that if a notice should have been given in relation to upgrading the track and was not, then this was an honest mistake.
Fifth, the grantee party has reaffirmed its desire to have the proposed exploration licences granted subject to the RSHA. I am satisfied that it is cognisant of its legal obligation and the grantee party will act lawfully and in accordance with the AHA and I accept that heritage surveys will be conducted over proposed licence areas in accordance with the RSHA if no alternative agreement is entered into. I also observe that the evidence given in this matter has put the grantee party on notice of the probable existence of Aboriginal sites covered by the AHA over the proposed licence areas. The grantee party will not be able to rely on the defence in s 62 of the AHA that it did not know or could not reasonably be expected to have known of the existence of an Aboriginal site.

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 (Little & Others v Oriole Resources Pty Ltd [2005] FCAFC 243; (2005) 146 FCR 576 at [41]-[57]; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391).
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 (as defined above) 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 at 386-388 [74]-[79] and the cases cited therein).
In this matter, there is evidence to suggest that the area of the proposed licences contains numerous gorges, flora and fauna which are of conservation value. The uncontested evidence of the native title party is that the gorges are very difficult to enter and are therefore ‘still untouched’ (Affidavit of Toby Smirke, para 16). Supporting documents provided by the native title party and Government party show that in particular the area of the former Wanna Pastoral Lease (Vacant Crown Land designated CPL 34), which overlaps E08/1754 at 100 per cent and E08/1778 at 19 per cent, was purchased by the then Department of Conservation and Land Management (‘CALM’) in June 2003 for the purposes of a future conservation reserve. A pamphlet entitled ‘Wanna know a secret?’ published by CALM testifies to the importance of the area for conservation purposes and the preservation of its flora and fauna. CALM (now DEC) is in the process of preparing a management plan for the area, including for some areas of the old lease to be declared a wilderness area. In respect of this area, the Government party will impose extra conditions (see above), which will curtail any ground disturbing activities in the area without the prior approval of the Environment Director of the Department of Mines and Petroleum and will require rehabilitation and final inspection. Taking into account the extra conditions proposed and the general conditions dealing with ground disturbing activities (standard conditions 1-4 which include the requirement for rehabilitation of all the land the subject of the proposed licences), I find that there is not likely to be major disturbance to land or waters in this case. The Government party through its various Departments has considered that exploration activity is not incompatible with the future use of the former Wanna Pastoral Lease area. It does not yet have the status of a reserve which prohibits mining without Ministerial approval. DEC’s fact sheet on ‘Additions to Western Australia’s Conservation Reserve System’ (20 September 2007) specifically notes that the lands are set aside as unclassified conservation parks, making exploration and mining permissible under the Mining Act and Environmental Protection Act. Pastoral activities will have previously disturbed the area and the relatively limited ground disturbing activity involved in exploration is not likely to constitute a major disturbance to the land.

Determination

The determination of the Tribunal is that the acts, being the grants of exploration licences E08/1754 and E08/1778 to Aurora Resources Pty Ltd, are acts attracting the expedited procedure.

Hon C J Sumner
Deputy President
4 November 2009

[2009] NNTTA 142

4 November 2009

Key Legal Topics

Areas of Law

Indigenous Peoples & Native Title Law

Legal Concepts

Native Title

Future Acts

Expedited Procedure

Interference with Community Activities

Sites of Particular Significance

Site Protection