Evelyn Gilla & Ors on behalf of the Yugunga-Nya People v Monument Murchison Pty Ltd and Another
[2016] NNTTA 51
•11 November 2016
NATIONAL NATIVE TITLE TRIBUNAL
Evelyn Gilla & Ors on behalf of the Yugunga-Nya People v Monument Murchison Pty Ltd and Another [2016] NNTTA 51 (11 November 2016)
| Application No: | WO2015/0156, WO2015/0157 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into expedited procedure objection applications
Evelyn Gilla and Others on behalf of the Yugunga-Nya People (WC1999/046)
(native title party)
- and -
Monument Murchison Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACTS ARE NOT ACTS ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Mr JR McNamara |
Place: | Brisbane |
Date: | 11 November 2016 |
| Catchwords: | Native title – future act – proposed grant of prospecting licences – expedited procedure objection applications – identity of grantee party – status of deed polls relating to one kilometre exclusion zone – whether grant is likely to direct interfere with community or social activities – whether grant is likely to interfere with areas or sites of particular significance – whether grant is likely to involve major disturbance to the land or waters concerned – expedited procedure does not apply |
| Legislation: | Native Title Act 1993 (Cth), ss 29, 30A, 35, 155, 237 Mining Act 1978 (WA), ss 24, 24A, 25, 56B Aboriginal Heritage Act 1972 (WA) Native Title (Notices) Determination 2011 (No 1) (Cth) |
| Cases: | Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15 (‘Cherel v Faustus Nominees’) Champion v Western Australia and Another (2005) 190 FLR 362; [2005] NNTTA 1 (‘Champion v Western Australia’) Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 (‘Currey v Sutherland Shire Council’) Dann v Western Australia and Another (1997) 74 FCR 391; [1997] FCA 332 (‘Dann v Western Australia’) Evelyn Gilla & Ors on behalf of the Yugugna-Nya People/Western Australia/Luigi Bondini; Alwyn Joan Bondini; Allarrow Pty Ltd [2010] NNTTA 37 (‘Gilla v Allarrow No 1’) Evelyn Gilla & Ors on behalf of the Yugugna-Nya People/Western Australia/Luigi Bondini; Alwyn Joan Bondini; Allarrow Pty Ltd [2010] NNTTA 38 (‘Gilla v Allarrow No 2’) Evelyn Gilla and Others on behalf of Yugunga-Nya/Western Australia/Blackjack Resources Pty Ltd [2002] NNTTA 35 (‘Gilla v Blackjack Resources’) Murray v Western Australia and Another (2011) 257 FLR 450; [2011] NNTTA 91 (‘Murray v Western Australia’) Little v Oriole Resources Pty Ltd [2005] FCA 506 (‘Little v Oriole Resources No 1’) Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 234 (‘Little v Oriole Resources No 2’) Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurrama and Pinikura People; Puutu Kunti Kurrama and Pinikura People #2/Western Australia [2010] NNTTA 221 (‘Magnesium Resources v Puutu Kunti Kurrama and Pinikura People’) Merle Forrest and Others on behalf of Central East Goldfields People/Western Australia/Aruma Exploration Pty Ltd [2012] NNTTA 59 (‘Forrest v Aruma Exploration’) St. Ives Gold Mining Company Pty Ltd and Another v Ngadju [2014] NNTTA 73 (‘St. Ives Gold Mining Company v Ngadju’) State of Western Australia/M M Strickland and A J Nudding on behalf of the Maduwongga People; B & D Champion, C & D Sambo, G Wilson and C Donaldson on behalf of the Gubrun People; and D Dimer, O Dimer and H Dimer on behalf of the Mingarwee (Maduwongga) People/Plutonic (Baxter) Pty Ltd and Mineral Commodities NL [1998] NNTTA 12 (‘Western Australia v Strickland’) Suntory (Aust) Pty Ltd v Federal Commissioner of Taxation (2009) 177 FCR 140; [2009] FCAFC 80 (‘Suntory v FCT’) Tullock v Western Australia (2011) 257 FLR 320; [2011] NNTTA 22 (‘Tullock v Western Australia’) Walley v Western Australia (2002) 169 FLR 437; [2002] NNTTA 24 (‘Walley v Western Australia’) Wanjina-Wunggurr (Native Title) Aboriginal Corporation/Western Australia/Braeburn Resources Pty Ltd [2010] NNTTA 150 (‘Wanjina-Wunggurr v Braeburn Resources’) Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 1452 (‘Ward v Western Australia’) Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (‘Watson v Backreef Oil’) Weld Range Metals Ltd v Western Australia and Others (2011) 258 FLR 9; [2011] NNTTA 172 (‘Weld Range Metals v Western Australia’) Western Australia v Daniel and Others (2002) 172 FLR 168; [2002] NNTTA 230 (‘Western Australia v Daniel’) Western Desert Lands Aboriginal Corporation (Jamukurnu Yapalinkunu) RNTBC v Teck Australia Pty Ltd [2014] NNTTA 56 (‘Western Desert Lands v Teck Australia’) WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘WF v Emergent Resources’) Yurriyangem Taam and Others v Baibao Resources Pty Ltd and Another [2015] NNTTA 30 (‘Yurriyangem Taam v Baibao Resources’) |
| Representatives of the native title party: | Colin McKellar, Yamatji Marlpa Aboriginal Corporation Jessica Whiteaker, Yamatji Marlpa Aboriginal Corporation |
| Representatives of the grantee party: | Glenn Wright, TAS Legal Pty Ltd Jennifer Johnson, Tenement Administration Services |
| Representatives of the Government party: | Sarah Power, State Solicitor’s Office Bethany Conway, Department of Mines and Petroleum |
REASONS FOR DETERMINATION
This decision concerns the proposed grant of prospecting licences near Meekatharra in the Mid West region of Western Australia. Specifically, it considers whether the grantee and the State are required to negotiate with persons claiming to hold native title in the area covered by the proposed licences.
In January 2015, the State gave notice under s 29 the Native Title Act 1993 (Cth) of its intention to grant prospecting licences P51/2927 and P51/2928 to Jinka Minerals Ltd (‘Jinka’) under the Mining Act 1978 (WA). The proposed licences comprise, respectively, 77.54 hectares and 192.06 hectares of land in the Shire of Meekatharra and are entirely situated within the boundaries of the registered native title claim of the Yugunga-Nya People. As registered native title claimants, the Yugunga-Nya People have certain procedural rights in connection with development proposals, including the right to negotiate with the State and the grantee about the grant of mining tenements, subject to certain exceptions.
The State included in the notice a statement that it considers the proposed licences to be acts attracting the expedited procedure. An act attracting the expedited procedure is a proposal which does not need to go through the normal negotiation procedure required under the Native Title Act before it can be validly granted. Where the State asserts that a proposed grant attracts the expedited procedure, a registered native title claimant for the area may object to the inclusion of the expedited procedure statement. The Yugunga-Nya People have done so in relation to the proposed licences.
On receipt of an objection, the Tribunal must conduct an inquiry to determine whether the proposed grant attracts the expedited procedure. It must do so by reference to the following criteria, which are set out in s 237 of the Native Title Act:
(a)Is the proposed grant likely to interfere directly with the carrying on of the community or social activities of the native title holders?
(b)Is the proposed grant likely to interfere with areas or sites of particular significance to the native title holders in accordance with their traditions?
(c)Is the proposed grant likely to involve, or create rights whose exercise is likely to involve, major disturbance to any land or waters concerned?
If the answer to any of these questions is ‘yes’, then the grantee and the State must negotiate in good faith with any registered native title claimants or registered native title bodies corporate with a view to reaching agreement about the grant. If the Tribunal is satisfied that the proposed grant is not likely to have any of those effects, then the grant can proceed without the requirement for negotiations. The Tribunal’s task is to form a view on these issues by undertaking a predictive assessment of what is likely to occur as a result of the grant, taking into account the rights conferred by the grant, what is proposed to be done, and the applicable regulatory regime: see Walley v Western Australia at [8]-[9].
Member Helen Shurven was initially appointed by the President of the Tribunal, Raelene Webb QC, to constitute the Tribunal for the purposes of conducting an inquiry into the objections. In the course of the inquiry, the Yugunga-Nya People informed the Tribunal that it intended to file male-restricted evidence and would be seeking non-disclosure directions under s 155 of the Native Title Act. The evidence in question is an anthropological report prepared by MV Robinson (‘the Robinson report’) for the Department of Indigenous Affairs in 1978. After considering the evidence and the submissions made by the Yugunga-Nya People in support of the non-disclosure directions, I decided it was appropriate for the Tribunal to make the proposed directions. In light of this, President Webb appointed me to constitute the Tribunal for the purposes of completing the inquiry.
The circumstances that led to the notification of the proposed licences were the result of amendments to the Mining Act which came into force in February 2006. Prior to the amendments, a prospecting licence was granted for a period of four years. The effect of the amendments was to allow prospecting licences to be extended for a further four years. As a transitional measure, the amendments also enabled the holder of a prospecting licence applied for before 10 February 2006 to apply for another licence over the same area.
In 2010, the Tribunal determined that the grant of prospecting licences P51/2438 and P51/2439 were acts attracting the expedited procedure (see Gilla v Allarrow No 1 and Gilla v Allarrow No 2). The two prospecting licences, which were applied for before the amendments came into effect in 2006 and which I will refer to as the old licences, were to be granted for a term of four years without renewal. The two licences were located near Yagahong Hill, which the Tribunal found to be a site of particular significance to the Yugunga-Nya People (the Tribunal also considered there were likely to be other sites of particular significance to the Yugunga-Nya People in the vicinity of the hill). In each of the two decisions, the Tribunal determined that interference with these sites was unlikely to occur because, in part, the company who was to ultimately become the holder of the licences, Reward Minerals Ltd (‘Reward’), had executed deed polls in which it undertook not to carry out exploration activities within a one kilometre radius of the foot of the hill.
The old licences were granted in November 2010 and were subsequently transferred to Jinka in December 2013. In November 2014, Jinka applied for the proposed licences under the 2006 amendments and subsequently transferred the old licences to Monument Murchison Pty Ltd (‘Monument’) in October 2015. Monument is now both the holder of the old licences and the applicant for the proposed licences. The proposed licences cover the exact same ground as the old licences and Monument has entered into a deed of assumption in which it has assumed Reward’s obligations under the deed polls.
The Yugunga-Nya People contend that, because Monument did not request or apply for the grant of the proposed licences, it cannot be a ‘grantee party’ for the purposes of the Native Title Act. As Jinka no longer has an interest in the proposed licences, the Yugunga-Nya People argue the proceedings should be dismissed. Alternatively, the Yugunga-Nya People contend that I should not have regard to the one kilometre exclusion zone because the deed polls only apply to the old licences and in any case Monument is in breach of its obligations. The Yugunga-Nya People also contend that reliance on the one kilometre exclusion zone does not adequately deal with the risk of interference with areas or sites of particular significance beyond the one kilometre exclusion zone or with community or social activities carried on in that area.
Both Monument and the State contend that I should adopt the findings of the Tribunal in Gilla v Allarrow No 1 and Gilla v Allarrow No 2. Monument submits that its execution of the deed of assumption is relevant to the grant of the proposed licences and denies it has breached any of its obligations under the deed polls. Monument contends that I should also have regard to the fact it has undertaken to observe and enforce the one kilometre exclusion zone and consult with the Yugunga-Nya People in relation to its exploration activities. The State argues the Yugunga-Nya People have not identified any basis on which to distinguish the Tribunal’s findings in Gilla v Allarrow No 1 and Gilla v Allarrow No 2.
In these reasons, I consider the following issues which are relevant to my determination:
· Who is the grantee party?
· What is the status of the deed polls?
· Is there likely to be interference with community or social activities?
o What are the community or social activities and where do they take place?
o What activities does Monument propose to undertake?
o What is the previous and existing use of the areas?
o Is there a real risk of interference with the community or social activities?
· Is there likely to be interference with areas or sites of particular significance?
o What is the significance of Yagahong Hill?
o Are there any other areas or sites of particular significance in the vicinity of Yagahong Hill?
o What is the significance of the three kilometre exclusion zone?
o Is there a real risk of interference with areas or sites of particular significance?
· Is there likely to be major disturbance to the land and waters concerned?
The evidence
In addition to the Robinson report, which was also filed in Gilla v Allarrow No 1 and Gilla v Allarrow No 2, the Yugunga-Nya People rely on the following affidavits that were before the Tribunal in those previous matters:
· The affidavit of Ron Shay sworn on 9 December 2009: Mr Shay is a member and elder of the Yugunga-Nya claim group. Mr Shay states that he is ‘able to talk about this area because it is my mother’s country, and I am authorised to speak for Yagahong Hill.’
· The affidavit of Evelyn Gilla sworn on 8 December 2009: Ms Gilla is a member and elder of the Yugunga-Nya claim group and a registered native title claimant. Ms Gilla states that she is ‘able to talk about this area because it is my mother’s country, and I am authorised, as an elder, to speak for Yagahong Hill, and to know the sites and traditional stories for that whole place.’
· The affidavit of Rhonda Shay sworn on 8 December 2009: Ms Shay is a member of the Yugunga-Nya claim group. Ms Shay states she is ‘one of the young leaders in our community’ and her father Bill, her uncles Ron and Rex, and her aunt Evelyn Gilla ‘all say she can speak for Yagahong Hill, but not about the men’s business.’
· The affidavit of AS (deceased) sworn on 8 December 2009: AS was a member of the Yugunga-Nya claim group. In his affidavit, AS states that he is ‘able to talk about these sites because it is my father’s country, and I am authorised, as a law man, to speak for Yagahong Hill.’
· The affidavit of Louahna Janet Kionah Lloyd sworn on 19 November 2009: Ms Lloyd was a senior legal officer at Yamatji Marlpa Aboriginal Corporation at the time she swore her affidavit and represented the Yugunga-Nya People in Gilla v Allarrow No 1 and Gilla v Allarrow No 2.
The Yugunga-Nya People also filed a ‘refreshed’ version of Mr Shay’s affidavit, which was sworn 18 December 2015 and is in substantially the same terms as his 2009 affidavit.
The Yugunga-Nya People also rely on the following:
· The affidavit of David Denis Farrell sworn on 15 February 2016: Mr Farrell was a legal officer employed by Yamatji Marlpa Aboriginal Corporation at the time he swore his affidavit and represented the Yugunga-Nya People at an earlier stage of these proceedings.
· The affidavit of Colin Alec McKellar affirmed on 23 March 2016: Mr McKellar is an in house counsel at Yamatji Marlpa Aboriginal Corporation and represents the Yugunga-Nya People in these proceedings. Annexed to Mr McKellar’s affidavit are Mining Tenement Details Reports for P51/2438 and P51/2439.
· The affidavit of Stephen Wayne Morgan sworn on 15 February 2016: Mr Morgan is currently employed by Yamatji Marlpa Aboriginal Corporation as an anthropologist and states that he has ‘done extensive fieldwork with the Yugunga-Nya group as a heritage anthropologist.’
Monument rely on the following documents:
· The affidavit of Robert Baldock affirmed on 5 April 2016: Mr Baldock is a director of Monument and is the chairman, president and chief executive officer of Monument Mining Limited, of which Monument is a wholly owned subsidiary.
· The affidavit of Robert Stangler sworn or affirmed on 11 April 2016: Mr Stangler is the chief managing geologist of Monument Mining Ltd and has responsibility for the on-ground management of the exploration program.
· The affidavit of Keith Mayes sworn on 11 April 2016: Mr Mayes is the chief operating officer of KGL Resources Limited and was formerly the acting chief executive officer of Jinka.
· The affidavit of Jennifer Johnson sworn or affirmed on 11 April 2016: Ms Johnson is the Policy and Planning Manager at Tenement Administration Services Pty Ltd and has managed the old licences, the proposed licences and other tenements on behalf of Jinka and Monument.
· The affidavit of Glenn Wright sworn on 11 April 2016: Mr Wright is a legal practitioner and represented Monument in these proceedings.
Who is the grantee party?
Directions for the inquiry were issued on 1 December 2015. At that time, Jinka was the grantee party for the purposes of the objection proceedings. On 15 December 2015, the representative for the Yugunga-Nya People advised the Tribunal and the other parties that a deemed transfer of the proposed licences had taken place between Jinka and Monument on 21 October 2015. On this basis, the Yugunga-Nya People argued that Jinka ‘had insufficient interest in the subject applications ... to apply to the Tribunal for a determination.’
This issue was considered at a directions hearing convened by Member Shurven on 11 January 2016. Following the directions hearing, Bethany Conway of the Department of Mines and Petroleum contacted the Tribunal and the other parties via email to provide an explanation of the circumstances which led to the deemed transfer:
Prior to the revisions to the Mining Act enacted in February of 2006, Prospecting Licences could only run for a maximum of four years, at which point the tenement would have to be converted to a Mining Lease or Exploration Licence for the Holder to retain the ground. In 2006 a provision was made in the Act for Prospecting Licences to be extended for a further four years. As a result of this provision, Section 56B subsection (2) was included in the Mining Act which allowed for the holder of any Prospecting Licences applied for before 10 February 2006 to apply for another Prospecting Licence ‘in respect of the whole or any part of the land the subject of the relevant licence’. Subsection (4) of that section also states that;
If the holder of a relevant licence transfers the licence after making an application for a prospecting licence in the exercise of the right conferred by subsection (2), the application continues in the name of the transferee as if the transferee had made it.
Applications for P51/2907 and P51/2927-2928 were notified under Section 29 of the Native Title Act as being applied for by Jinka Minerals Ltd, who remained the applicants for the affected tenements at the close of the S29 objection period which fell on 3 April 2015 and 28 May 2015. After the close of the notification period, Jinka Minerals Ltd transferred the underlying tenements (P51/2332 and P51/2438-2439) to Monument Murchison Pty Ltd and under the provisions of S53B(4) of the Mining Act, the applications continue on in the name of Monument Murchison Pty Ltd after the registration of the Deemed Transfer registered 21 October 2015.
Member Shurven subsequently informed parties via email on 15 January 2016 that, in her view, the proposed licences did not need to be re-notified and Monument should now be considered the grantee party for the purposes of the objection proceedings.
On 22 January 2016, the representative for the Yugunga-Nya People filed a set of submissions on those issues. The submissions sought, in essence, to argue the case that, because Monument did not request or apply for the proposed licences, it cannot be a ‘grantee party’ in accordance with the definition in s 29(2)(c) of the Native Title Act. On other hand, it was argued that, as Jinka no longer has an interest in the proposed licences, it ‘has no standing to have these matters heard by the Tribunal’ and the proceedings ought to be dismissed.
It should be noted at the outset that these proceedings were not brought by Jinka. It is certainly the case that Jinka applied to the State for the grant of the proposed licences. However, it was the State who issued the s 29 notice and, the State having included in that notice an expedited procedure statement, it was the Yugunga-Nya People who lodged the objections. Unless the Tribunal determines the proposed licences to be acts attracting the expedited procedure, the proposed licences can only be validly granted if the objections are withdrawn or dismissed. In this respect, the Yugunga-Nya People’s application to dismiss the proceedings is misconceived. It is nonetheless important, at least in terms of standing and especially in light of my conclusions, to resolve the matter of who is the grantee party for the purposes of s 30A of the Native Title Act.
Ms Johnson deposes that Monument acquired the rights to the old licences in February 2014. At that time, the licences could not be transferred to Monument as the Office of State Revenue had not completed its duty assessment of the sale agreement. Given the old licences were due to expire on 22 November 2014, Jinka as the registered holder of the old licences applied for the proposed licences in accordance with s 56B of the Mining Act. According to Ms Johnson, this provision allowed Jinka as the holder of the prospecting licences to apply for ‘replacement’ licences in respect of the whole or any part of the land covered by the original licences. The transfer of the old licences was approved on 21 October 2015, at which point Monument became the registered holder of the old licences and, by virtue of s 56B(4), the applicant for the proposed licences.
Section 29(2)(c) of the Native Title Act defines ‘grantee party’ as the person who has ‘requested or applied for’ the doing of the act. It is clear that Jinka made the application to the Department of Mines and Petroleum for the grant of the proposed licences and was therefore the grantee party at the time the s 29 notices were issued; however, it is no longer considered by the State to be the applicant for the licences and will not receive the benefit of the grant.
The Tribunal has previously considered situations where a tenement application has been subject to an agreement to transfer the tenement after grant. In many of these cases, the negotiations under the Native Title Act were conducted by the beneficial owner of the tenement (see for example Magnesium Resources v Puutu Kunti Kurrama and Pinikura People and St. Ives Gold Mining Company v Ngadju). In those cases, the Tribunal regarded the beneficial owner as the agent for the grantee party. This case differs from those matters in that Jinka no longer has an interest in the grant of the proposed licences.
Section 56B(2) of the Mining Act provides that the holder of a prospecting licence which had been applied for prior to 10 February 2006 has, while the licence continues in force, the right to apply for a prospecting licence in respect of whole or any part of the subject land. Where the holder of the licence exercises that right, the licence continues in force until the subsequent application is determined: s 56B(3) of the Mining Act. Relevantly, sub-s (4) provides that, if the holder of the licence transfers the licence after making the application, then ‘the application continues in the name of the transferee of the licence as if the transferee had made it’ (emphasis mine).
According to the State, Jinka applied for the proposed licences in exercise of the right in s 56B(2). That is not in dispute. Nor is it in dispute that the original licences were subsequently transferred to Monument. As the applications have yet to be determined, Monument is now deemed, as a matter of law, to have replaced Jinka as the applicant. In my view, Monument should now be considered the grantee party for the purposes of s 29(2)(c) and s 30A. There are several reasons why I have taken this view.
First, the use of the past tense of the verb ‘to apply’ does not necessarily require a construction that only includes applications made before the s 29 notice (cf Suntory v FCT at [37]; Currey v Sutherland Shire Council at [27]). Second, although ‘grantee party’ is defined in the context of notice requirements, the definition is crucial to determining the rights and obligations of the negotiations parties in s 30A. It would be absurd, for example, if Jinka continued to have an obligation to negotiate in good faith with the Yugunga-Nya People when it no longer had any legal or equitable interest in the tenements. It would be equally absurd if Monument had to obtain Jinka’s authorisation to apply for a determination under s 35 of the Native Title Act. Third, s 56B(4) of the Mining Act provides that the application continues in the name of the transferee ‘as if the transferee had made it.’ The corollary is that Monument stands in the shoes of Jinka as if the applications had been made by Monument itself.
That conclusion raises the further question of whether the s 29 notice is any way defective as a consequence of the change in the grantee party. In Western Australia v Strickland, the Tribunal considered that a change to a grantee party’s name did not invalidate the notice. While in that case it was the same entity with a different name rather than a different company altogether, I do not consider the difference to be material in terms of judging the competence of the s 29 notice. There is no express requirement in s 29 or the Native Title (Notices) Determination 2011 (No 1) (Cth) to specify the grantee party. Indeed, in some cases there may be no grantee party at all (see for example Western Australia v Daniel). In my view, there is no need to renotify the proposed licences as a consequence of the change in grantee party.
What is the status of the deed polls?
While Monument does not specifically rely on the existence of the deed polls to contend that the expedited procedure should apply to the proposed licences, there is an implicit assumption both in its submissions and the evidence it has provided that the one kilometre exclusion zone should be considered a significant factor in favour of such a ruling. The State also appears to rely on the existence of the deed polls, arguing that I should follow the decisions of Member O’Dea in Gilla v Allarrow No 1 and Gilla v Allarrow No 2, where the existence of the exclusion zone was a key factor in the Tribunal’s determination that the old licences were acts attracting the expedited procedure.
The Yugunga-Nya People contend that neither Jinka nor Monument has executed a deed poll or any other undertaking or assurance that they will avoid the area around Yagahong Hill. They also argue that neither Jinka nor Monument complied with undertakings in the deed polls requiring the transferee of the old licences to execute a similar deed poll and provide it to the Yugunga-Nya People. On this basis, the Yugunga-Nya People submit that, contrary to the Tribunal’s previous decisions, I should not rely on the presumption that Monument will act lawfully in exercising the rights conferred on it by the proposed licences (also known as the presumption of regularity: see Murray v Western Australia at [27]-[61]).
Monument contends there is no evidence of non-compliance with the undertakings in the deed polls and says there is no statutory requirement to inform the Yugunga-Nya People of the intended transfer of the old licences. Similarly, the State argues that the Yugunga-Nya People’s contentions on this issue are made ‘largely on the mistaken assumption’ that neither Jinka nor Monument executed a deed poll similar to the one executed by Reward and that, in any case, the presumption of regularity has no application in respect of private agreements.
I will address the issues around the presumption of regularity later in these reasons. However, it is important at this stage to consider the status of the deed polls, as they are relevant to my assessment of the risk of interference with community and social activities carried on by the Yugunga-Nya People and with areas or sites of particular significance to them within the one kilometre exclusion zone.
The Yugunga-Nya People submit that the deed polls should not be relied upon to support a determination that the expedited procedure applies. In particular, they contend that Monument has already breached a key term of the deed polls by failing to provide the Yugunga-Nya People with, or indeed execute, a deed poll in similar form to that executed by Reward. They also say it is unclear whether Monument is aware of its obligations under the deed polls, given its insistence that the deed polls have not been breached and the fact it has applied for tenements which encroach on the one kilometre exclusion zone. Furthermore, the Yugunga-Nya People argue that the undertaking relating to the exclusion zone does not restrict what Monument can do under the proposed licences, as it only applies to the old licences.
Monument disputes whether the obligation to provide the Yugunga-Nya People with an executed deed poll in similar form to that executed by Reward was indeed a key term of the deed polls, but argues the requirement was satisfied by its execution of a deed of assumption whereby it assumed Reward’s obligations under the deed polls. Monument concedes that it may have failed to provide this document to the Yugunga-Nya People, but contends that such a failure did not cause them any prejudice. Monument denies it is unaware of its obligations under the deed polls and rejects the contention that the deed polls have no application to the proposed licences, saying they differ from the old licences ‘only in that they have new identifiers, and have gone through a further native title process.’
It is clear that Reward and subsequently Jinka were under an obligation not to transfer the old licences until the transferee had signed and delivered to the Yugunga-Nya People a deed poll ‘in similar form.’ It might be wondered how that obligation could have been met, given the transferee in each case had assumed the obligation before the licences were formally transferred. Nonetheless, it would appear the obligation was not discharged. Whether the obligation was a key term and the breach a material one is another question altogether, though it does not appear the Yugunga-Nya People have suffered any prejudice as a result.
More importantly, I do not find Monument’s arguments regarding the applicability of the deed polls particularly persuasive. I am not convinced the proposed licences are simply the old licences with new identifiers. I accept the proposed licences cover the same area. However, they are clearly different tenements. So much is apparent from the text of s 56B, which provides that the holder of certain prospecting licences may, while the licence continues in force, apply for a prospecting licence ‘in respect of the whole or any part of the land the subject of the relevant licence.’ The two sets of licences are materially different in that the old licences were granted for a term of four years, whereas the proposed licences can be extended for a further four years. If the only change was to the way the tenements are identified, there would be no need for the State to issue notices under s 29.
The plain language of the deed polls suggests the scope of the obligation to maintain an exclusion zone around Yagahong Hill is confined to the exercise of rights or entitlements arising under the old licences. The covenant is not a general one and applies only in relation to activities carried out under the old licences. There is nothing in the deed polls to suggest they apply to other tenements, regardless of whether they cover the same ground. In my view, the only natural construction of the deed polls is that they are not enforceable with respect to Monument’s activities under the proposed licences.
This is not to suggest Monument does not intend to observe the one kilometre exclusion zone around Yagahong Hill. Mr Baldock states that Monument will ‘continue to abide by the provisions of the original Deed Polls and enforce a 1 kilometre “exclusion zone” around the base of Mt Yagahong.’ Mr Baldock also states that he ‘will take measures and ensure the compliance with’ the exclusion zone. It is however a factor which must be taken into account when assessing the risk of interference with the community or social activities of the Yugunga-Nya People and with areas or sites of particular significance in accordance with their traditions.
Is there likely to be interference with community or social activities?
What are the community or social activities and where do they take place?
The Yugunga-Nya People contend they ‘regularly and heavily’ use the area around Yagahong Hill and the proposed licences in particular. They say Yagahong Hill is an important meeting place both for Yugunga-Nya people and for people from other claim groups, and that Yugunga-Nya people continue to visit Yagahong Hill and the surrounding area every day to look after the site and to collect food and medicine.
Mr Shay states that Yagahong Hill was used for ceremonial purposes in station days and men still go through the law on the hill itself. Mr Shay says that medicinal plants can be found at the hill and there is ‘a lot of food there also.’ He states that Yugunga-Nya people ‘used to draw water from’ a well near the western side of the hill, which was placed there by station owners, and also refers to a natural creek that runs alongside the western end of the hill. Ms Gilla describes the area around Yagahong Hill as a ‘very good place to hunt and camp’ and states that Yugunga-Nya people living in Meekatharra visit the area to hunt kangaroo ‘about once every week’ (on weekends, ‘a couple of car loads at least will go out for the day’). This is consistent with the evidence of Ms Shay, who states that Yugunga-Nya people hunt and gather around the base of the hill and use it as a landmark when they ‘go further out for tucker or medicine.’
Ms Gilla states that her mother showed her the locations of sites and water holes around Yagahong Hill and says ‘[w]e still go to these places today to camp, visit, hunt and gather and look after things in our traditional ways.’ According to Ms Gilla, children are also taken out to the area ‘to teach them how to do all these things.’ Although Ms Gilla was resident in Leonora at the time of making her affidavit, she says she collects bush tucker from the area around Yagahong Hill five or six times a year on her way to Meekatharra.
According to Ms Shay, who lived in Meekatharra at the time she swore her affidavit, ‘[e]very important event in our community revolves around the Hill in some way.’ She states that Yugunga-Nya people visit Yagahong Hill ‘for anniversaries and special occasions’ and go there to celebrate births or to mourn the passing of family members. She says that Yugunga-Nya people can ‘pick up messages’ from the hill and ‘know things’ from looking at it (Ms Gilla also states that her mother ‘used to tell us that the Hills were like telegraph lines of communication’ and the hill ‘gives us people messages’). Ms Shay states that the old people camp at the hill when they ‘need to be healed’ whereas younger members of the community go there ‘to be re-energised and to find our way back to our core.’ Yugunga-Nya people also camp near the hill ‘to get away and have a holiday’ and ‘reconnect with who we are.’
AS states that, as a law man responsible for looking after Yagahong Hill, he goes to the hill every day and drives around it ‘to make sure it is okay.’ This involves collecting rubbish, monitoring tourist activity at the base of the hill and ensuring the hill ‘is not being interfered with in a way that is not permitted under traditional law.’ Though AS has passed away since he swore his affidavit, I note Ms Shay’s statement that law men in her family visit the hill daily to ‘look after it.’
Monument accepts that community and social activities are carried on within or in close proximity to Yagahong Hill and the base of the hill. However, it says there is no evidence that any of these activities need take place specifically within the areas covered by the proposed licences or outside the one kilometre exclusion zone. The State contends that most of the activities occur either on or around the base of Yagahong Hill, which is inside the one kilometre exclusion zone, and says there is no information regarding the duration or frequency of the activities described in the affidavits, apart from hunting (Monument also suggests there is some doubt as to the frequency of at least some of the activities and the number of people involved). Furthermore, the State argues that picking up messages from the hill and deriving knowledge from observing it are not activities for the purposes of s 237(a).
The evidence suggests that Yagahong Hill is an important site for a variety of community and social activities including ceremony, hunting and gathering, teaching, camping and caring for country. This accords with the evidence concerning the site’s significance according to the traditions of the Yugunga-Nya People, which I address in detail later in these reasons. The evidence also suggests that Yagahong Hill is a place where Yugunga-Nya people come together to mark significant events in the life of the community, such as the birth of a child or the death of a loved one. While most of these activities are associated with the base of the hill, the reference in Ms Shay’s affidavit to the use of the hill as a landmark for hunting and gathering activities suggest they also occur over a wider area. Similarly, Ms Gilla’s evidence regarding the significance of water holes and other sites around Yagahong Hill indicates that activities such as camping, hunting and gathering, teaching and caring for country take place within a considerably larger radius, although perhaps not as frequently as they occur around the base of the hill.
In terms of frequency, there is evidence that Yugunga-Nya people visit the area at least once a week to hunt for kangaroo. There is also evidence that people with special responsibility for the hill travel there on a daily basis to maintain the site. Although there is limited evidence about the frequency or duration of other activities, I accept that members of the claim group visit the area at regular intervals for a variety of reasons, given the significance of Yagahong Hill and its apparent importance to the community life of the Yugunga-Nya People.
What activities does Monument propose to undertake?
The grant of a prospecting licence authorises the holder to:
·enter and re-enter the land with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of prospecting for minerals in, on or under the land;
·prospect for minerals, and to carry on such operations and carry out such works as are necessary for that purpose, including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for that purpose;
·excavate, extract or remove up to 500 tonnes of earth, soil, rock, stone, fluid or mineral bearing substances over the term of the licence or in such greater amount as approved in writing by the Minister; and
·take and divert water from any natural spring, lake, pool or stream situate in or flowing through the land or from any excavation previously made and used for mining purposes, or to sink a well or bore and use that water for domestic purposes and in connection with prospecting for minerals.
The exercise of these rights is subject to the Rights in Water and Irrigation Act 1914 (WA) and any conditions imposed under ss 24, 24A and 25 of the Mining Act. Relevantly, the State intends to impose the following conditions on the grant of the proposed licences:
·all surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion;
·all disturbances to the surface of the land as a result of the exploration are to be backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum, no later than six months after excavation unless otherwise approved;
·all waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings are to be removed from the tenement prior to or at the termination of exploration program; and
·written approval must be obtained from the Environmental Officer prior to using drilling rigs, scrapers, graders, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans, and all topsoil must be removed ahead of mining operations and stockpiled for replacement after backfilling or the completion of operations
I also note the proposed licences will be subject to endorsements requiring the holder to seek the advice of the Department of Water if proposing any works within the vicinity of a defined waterway.
Mr Stangler states that Monument proposes to undertake mapping and hand sampling on the proposed licences, followed by drilling ‘if and where necessary.’ The exploration program will be carried out by four or five field staff, in addition to two geologists directly responsible to Mr Stangler. If drilling is required, it will primarily be reverse circulation but may involve some diamond drilling ‘for limited metallurgical sampling.’ Mr Stangler states that drill heads are ‘of limited diameter,’ being 140 mm for reverse circulation and 125 mm for diamond drilling. Mr Stangler states that Monument’s intended activities will not take up the entire area of the proposed licences at any one time and the maximum area involved in any drilling or mapping activities will be at most approximately 50 metres or 100 metres respectively.
Mr Baldock states that he will ensure there will be consultation with the Yugunga-Nya People ahead of any drilling or disturbance, though it is not clear how that consultation will occur. He deposes that exploration drill sites will be rehabilitated, drill stem holes will be capped and collared, and driving ‘will be restricted to where necessary and at appropriate speeds.’ Mr Baldock also states that all reasonable steps will be made not to damage vegetation or disturb native animals. Mr Baldock says Monument will abide by the provisions of the original deed polls and enforce the one kilometre exclusion zone, in respect of which he intends to ‘take measures and ensure compliance’ through directions to Mr Stangler and relevant field staff. Mr Baldock states that he will direct staff to ensure that spiritual, community and other activities can take place outside of drilling areas ‘subject to any particular safety risk that may be relevant at that time.’
What is the previous and existing use of the areas?
Monument contends that the proposed licences are unlikely to involve direct interference with the community or social activities carried on by Yugunga-Nya people because the proposed licence area and the three kilometre exclusion zone proposed by the Yugunga-Nya People have already been subject to previous exploration and mining activity. The State notes that both of the proposed licences are largely covered by pastoral leases and submits that I am entitled to draw the conclusion from this fact that it is likely there has already been some level of interference with the community or social activities.
In his affidavit, Mr Stangler sets out his belief that the area has previously been subject to exploration and related activities, including ground disturbing work such as drilling. Specifically, Mr Stangler recalls a field trip where he observed ‘ground disturbance suggestive of previous drilling activities’ in the area of P51/2438, which covers the same ground as P51/2928. His affidavit also annexes a screen shot from the WAMEX website depicting historical drilling in the area west of Yagahong Hill. Mr Stangler’s evidence regarding previous exploration activity which has occurred in the area is consistent with the statement made in Ms Gilla’s affidavit that part of the area has been worked in the past. According to Ms Gilla, this work occurred ‘to the very western side’ of the area now covered by the proposed licences, but to her knowledge there has not been any drilling within the proposed three kilometre exclusion zone.
In terms of the proposed three kilometre exclusion zone, there is evidence of past exploration and mining activity, particularly around the Gabanintha mine site. This includes small-scale mining which began when gold was discovered in the area in 1987; a more substantial, open-cut gold mine which operated between 1987 and 1991; and more recent drilling programs undertaken in 2001 and 2004. Mr Stangler also deposes that drilling activities have continued with the regional exploration of the area within a three kilometre radius of Yagahong since 1991, including 11 reverse circulation drill holes drilled by a company named Kentor in 2012 to a total depth of 1,683 metres (it is not clear whether this occurred within the area covered by the proposed licences). While this evidence suggests the area was once the subject of extensive exploration and mining activity, there does not appear to have been significant exploration or mining activity in recent years. In this respect, the previous use of the area does not necessarily suggest that exploration activities are unlikely to interfere with the community and social activities of the Yugunga-Nya People.
Both of the proposed licence areas are currently subject to the Hillview and Polelle pastoral leases. The Tribunal has previously found that the existence of pastoral interests, the exercise of which prevails over any native title rights and interests and may have a continuing effect on the community or social activities of the native title holders, can be taken into account in evaluating the likelihood of interference (see for example Yurriyangem Taam v Baibao Resources at [14]). Given the existence of these interests has not been addressed in the affidavit evidence, it is open for me to infer there has already been some level of interference with the community or social activities carried on in the area by Yugunga-Nya people.
Is there a real risk of interference with the community or social activities?
The Yugunga-Nya People make three main contentions with regard to the risk of interference associated with the grant of the proposed licences.
First, the Yugunga-Nya People contend that the grant of the proposed licences ‘without clearance from the Objectors’ will cause them spiritual and emotional distress. They argue the grant of the proposed licences will interfere with the carrying on of their community and social activities in a non-physical sense, in addition to any direct physical interference that may occur. Second, they contend that Monument’s activities will have a negative effect on the flora and fauna in the area and thereby interfere with hunting, gathering and associated activities. Third, the Yugunga-Nya People contend that Monument’s activities will restrict access to the area for the purpose of carrying on their community and social activities
In respect of the first contention, the Yugunga-Nya People submit that ‘community and social activities’ are not limited to ‘mere physical activities’ but include activities with a spiritual dimension. In support of this submission, they rely on the comments of Carr J in Ward v Western Australia, where his Honour stated (at 572):
... the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds ten kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed at the thought of such activities. The spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by ‘community life.’
It is not in dispute that a community or social activity can have a spiritual dimension. The question posed by s 237(a) is whether there is likely to be interference with the carrying on of the activity. While the spiritual aspects of an activity can arguably influence the way it is carried out, interference with the conduct of an activity will necessarily involve some degree of physical interference. It is not sufficient to merely assert that the grant of a tenement is likely to cause spiritual or emotional distress. To the extent that such an argument finds support in the decision of Carr J in Ward v Western Australia, it is no longer applicable to the interpretation of s 237(a) as the subsection now refers to interference with activities rather than the ‘community life’ of the native title holders (see Tullock v Western Australia at [56]-[75]).
As to the second contention, it is clear that many of the community and social activities described in the affidavit evidence depend on the presence of flora and fauna, most obviously in the case of hunting and gathering, but also in terms of teaching younger generations about law and culture. Some of the activities which Monument proposes to undertake, such as drilling, may require the clearing of native vegetation. However, Monument has undertaken to consult with the Yugunga-Nya People to identify and avoid any plants used for bush tucker or medicine. It would also be required to notify the Yugunga-Nya People of its intention to undertake such activities under the terms of the regional standard heritage agreement, the execution of which the State intends to impose as a condition of the licences and would provide an opportunity for consultation.
Ms Gilla states that driving or even walking through the area could destroy some of these plants. However, I am not satisfied any damage to these plants caused by Monument accessing exploration sites within the proposed licences will have a substantial effect on the use of the plants by Yugunga-Nya people. First, there are a number of existing roads and tracks which traverse the area. Second, the evidence of Mr Stangler suggests that on-ground personnel will be limited in number. Third, the area is already subject to pastoral activity, the effect of which on native vegetation may exceed any interference associated with the proposed exploration (noting that Monument has undertaken to consult with the Yugunga-Nya People about ground-disturbing activity).
With respect to the likely effect of the grant on hunting, Ms Gilla states that animals in the area are likely to be frightened away if exploration and prospecting activities are allowed to occur. Given the scale and likely duration of the activities proposed by Monument, I consider the grant of the proposed licences is unlikely to have a significant effect on the number or distribution of animals in the area. While Ms Gilla deposes to having seen places where animals have fallen down bore and drill holes which were not covered up, I note the conditions to be imposed by the State on the grant of the proposed licences will require the holder to cap, fill or otherwise make safe any surface holes drilled for exploration purposes on completion of works. Monument has undertaken to do so and there is no reason to conclude that it will not comply with this condition.
Many of the concerns expressed in the affidavit evidence relate to the possible impact of drilling. For example, Mr Shay states he is worried drilling will disturb a well near the western side of Yagahong Hill which Yugunga-Nya people used to draw water from, as well as a natural creek which runs along the western end of the hill. AS also refers to the effect of drilling on water sources that lie beneath the hill and the surrounding land. Ms Gilla states that, if drilling is allowed near Yagahong Hill, it will affect the ability of Yugunga-Nya people to camp near the hill, practice their traditional law and custom, and ‘do things like collect food and medicine.’ In a similar vein, AS states that drilling around Yagahong Hill ‘can affect our community activities like visiting the Hill, camping there, hunting, gathering, practising ceremonies and conducting law business.’
Mr Stangler notes the concerns expressed by the Yugunga-Nya witnesses but states that any drilling which may take place in the proposed licence areas would not affect the water systems around Yagahong Hill. He also states that he is aware of the well and creek mentioned in the affidavit of Mr Shay and will ensure that Monument make all efforts necessary to ensure that the well and any other natural water sources including the creek are not interfered with. Mr Stangler says that drilling activities, if required, will only take up a maximum of 50 metres at any one time and on-ground personnel will be limited in number.
On the evidence before me, I am satisfied the proposed activities are unlikely to have a significant effect on water sources in the vicinity of Yagahong Hill. Monument has undertaken to consult with the Yugunga-Nya People with respect to drilling and other ground disturbance. I have also taken into account the State’s intention to impose a condition requiring Monument to enter into a regional standard heritage agreement if requested to do so by the Yugunga-Nya People, the terms of which would require Monument to consult with them about ground-disturbing activities. If the programme of works is likely to involve disturbance to a well or creek, then it is likely there will be an opportunity for the Yugunga-Nya People to discuss this with Monument (I also note that the endorsements on the licences direct Monument to seek advice from the Department of Water if it proposes to prospect within a certain distance of any defined waterway).
As to other forms of potential disturbance, I am not satisfied the proposed activities are likely to involve substantial interference with the community and social activities described in the affidavit evidence. The evidence of Mr Stangler suggests the exploration program will be limited in scope and intermittent in nature. Although Mr Baldock concedes that access may be restricted in drilling areas or in places where there is a particular safety risk, I accept that Monument intends to consult the Yugunga-Nya People in relation to these activities. It would also be required to notify the Yugunga-Nya People in relation to these activities under the regional standard heritage agreement. In any case, I do not consider restrictions on access will be substantial, as they are likely to be temporary and would only affect a small area at any given time.
In the circumstances, I find the grant of the proposed licences is not likely to involve direct interference with any community or social activities that are carried on by Yugunga-Nya people.
Is there likely to be interference with areas or sites of particular significance?
What is the significance of Yagahong Hill?
The Yugunga-Nya People contend that Yagahong Hill is an area of particular ethnographic significance to members of the claim group and other Aboriginal people in the region. The other parties accept that Yagahong Hill is a site of particular significance to the Yugunga-Nya People.
There are two sites registered under the Aboriginal Heritage Act 1972 (WA) referable to Yagahong Hill:
· Mt Yagahong, Site ID 11133 (ceremonial, man-made structure, mythological; file restricted; boundary restricted)
· Yakong, Site ID 11139 (ceremonial, mythological, repository/cache; file restricted; boundary restricted)
The Yugunga-Nya witnesses refer to the two registered sites collectively as ‘Yagahong Hill.’ I note that Mt Yagahong is another name for Yagahong Hill.
Mr Shay deposes that, when he talks about Yagahong Hill, he means ‘the whole place,’ meaning the hill itself and two smaller hills to the east known as Little Bungoo and Big Bungoo. Mr Shay states that ‘the whole place should be registered as a sacred site.’ Similarly, Ms Gilla states that the two registered sites should cover a larger area so they incorporate the Bungoo Hills, which she says are part of the story for Yagahong Hill. AS and Ms Shay also say the registered sites should include the Bungoo Hills on the basis that they are part of the story for the hill, which describes an emu and ‘the little emu chicks following along behind their mother.’
The affidavit evidence suggests that Yagahong Hill derives its significance from its connection to an important dreamtime story and its role in the ceremonial and material life of the Yugunga-Nya People. According to the evidence, there is a song for the hill which is still sung today, the words of which are sacred and only known to certain people. There is also evidence that Yugunga-Nya people still use the hill for law business. Because of this, the hill itself is only accessible to initiated men under traditional law and custom, whereas the base of the hill and the Bungoo Hills to the east are open to women.
Based on the affidavit evidence, it appears to me that Yagahong Hill, including the Bungoo Hills to the east, is a site of profound importance to Yugunga-Nya people. Mr Shay describes the site as ‘the most important place for the Yugunga-Nya people.’ Three of the witnesses, including Mr Shay, refer to the site as ‘the bible’ for Yugunga-Nya people. The site’s singular importance in the traditions of the Yugunga-Nya People is also demonstrated by the fact that the name of the claim group derives from the traditional word for Yagahong Hill.
These findings are supported by the Robinson report, which links the site with an important regional songline. Monument disputes the relevance of the Robinson report on the basis that it does not specifically identify Yagahong Hill or any other features of significance to the Yugunga-Nya People in the proposed licence areas. However, it is reasonably clear that the reference in the Robinson report to Yakong is a reference to the hill, given Yakong is the name of one of the two registered sites which cover Yagahong Hill. I also accept the argument advanced by the Yugunga-Nya People that the stories described in the Robinson report are consistent with the evidence given by the Yugunga-Nya witnesses. This accords with the Tribunal’s findings in Gilla v Allarrow No 1 and Gilla v Allarrow No 2.
The Robinson report is also consistent with the evidence of Mr Morgan, which is based on his conversations with initiated men from the Yugunga-Nya claim and other groups in the region, in addition to his reading of the Robinson report and the affidavit evidence. Although Monument criticises certain aspects of Mr Morgan’s evidence, these criticisms are directed more specifically to Mr Morgan’s evidence about the significance of the surrounding area rather than the significance of the hill itself.
Are there other areas or sites of particular significance in the vicinity of Yagahong Hill?
The Yugunga-Nya People also contend there are other sites of particular significance to the native title holders near Yagahong Hill and within the area of the proposed licences.
AS deposes that the area surrounding the hill ‘is full of sites, including water sources, quarries, artefact scatters and so on.’ He also refers to other sites that are ‘important to the story and song for the Hill’ which he cannot discuss. Ms Shay states there are ‘a lot of sacred sites around the Hill that are not registered.’ In particular, Ms Shay refers to the existence of water holes and other sites which are ‘part of the story for the Hill,’ though she says she is not permitted to talk about them and Yugunga-nya people do not want others to know where those sites are.
Ms Gilla states there are ‘so many other sites in the area which are not registered with the Department of Indigenous Affairs’ and refers to the existence of ‘special sacred grounds all around the area of the tenements.’ Ms Gilla states that she ‘know[s] about those special sacred grounds’ and says ‘some of them are within the area of the proposed tenements.’ According to Ms Gilla, it is important to Yugunga-Nya people that the sites are not interfered with or damaged.
Monument contends the Yugunga-Nya People have refused or failed to confirm the existence of sites other than Yagahong Hill and the Bungoo Hills and says no explanation has been offered as to why certain persons cannot speak about particular sites. It argues, citing the Tribunal’s decision in WF v Emergent Resources, that the fact the Yugunga-Nya witnesses were shown maps of the area but do not identify sites of particular significance in the vicinity of Yagahong Hill means I should not be satisfied the sites are significant to Yugunga-Nya people.
The Yugunga-Nya People say there are various reasons why they do not want to disclose the precise location and names of these sites. One of those reasons is that some sites can only be spoken about by particular people. Yugunga-Nya people are also concerned that sites may be destroyed if other people are told about them. The State contends that if Yugunga-Nya people were concerned about the correct people speaking for certain sites then it was open to them to seek affidavit evidence from the appropriate person or seek confidentiality orders to protect any further evidence.
The Yugunga-Nya People say the affidavit material provides direct evidence that sites of significance exist within the proposed licences. They argue this evidence was previously accepted in Gilla v Blackjack Resources, Gilla v Allarrow No 1 and Gilla v Allarrow No 2 and a similar finding should be made in the present matter. In Gilla v Blackjack Resources, which concerned an area approximately 15 kilometres south of Yagahong Hill, Deputy President Sumner found that evidence as to the existence of ‘special sacred grounds’ within the area of the tenement was sufficient to support a finding that sites of particular significance to the native title holders existed within the tenement area.
In Gilla v Allarrow No 1 and Gilla v Allarrow No 2, which involved much of the same evidence as the present matter, Member O’Dea accepted there was direct evidence as to the existence of sites of special significance to the Yugunga-Nya People other than the two registered sites but observed the evidence was ‘vague as to location and imprecise as to why those sites are beyond ordinary significance to the native title holders.’ Despite the vagueness and imprecision of the evidence, Member O’Dea was prepared to conclude on the evidence that there may be other sites of particular significance within the tenement area. Member O’Dea said he reached this conclusion ‘primarily because of the paramount importance of the two registered sites’ (that is, Yagahong Hill) and it was probable, in light of the evidence, that there were ‘associated sites in the shadow of the hill, not dissimilar to the two chicks to the east, but not as readily apparent.’
A finding as to the existence of a site of particular significance usually requires there to be sufficient evidence to enable the Tribunal to identify the site’s location and its significance in accordance with the traditions of the native title holders. That being said, there may be circumstances where the evidence strongly suggests the existence of an area or site of particular significance notwithstanding the fact it has not been precisely identified (see for example Wanjina-Wunggurr v Braeburn Resources at [41]-[43]). In the present case, the evidence strongly suggests the existence of sacred sites in the vicinity of Yagahong Hill. The mere fact the Yugunga-Nya witnesses have been unable or unwilling to identify the specific sites does not necessarily mean the sites do not exist or are not of particular significance to Yugunga-Nya people. The Tribunal must approach this question in a contextual manner. In the circumstances, given the weight of evidence supporting the existence of these sites and their proximity and relationship to Yagahong Hill, I am satisfied there may be sites of particular significance to the native title holders within the proposed licence areas, at least within the immediate vicinity of the hill.
What is the significance of the three kilometre exclusion zone?
In addition to the hill itself and other sites in the vicinity of the hill, the Yugunga-Nya People contend that the area radiating out from the base of the hill is also an area of particular significance. Specifically, they submit that the area within three kilometres of Yagahong Hill and the Bungoo Hills is of high cultural significance to members of the claim group. The Yugunga-Nya People contend that the area in need of protection is not limited to the area within a one kilometre radius of Yagahong Hill, and neither Monument nor the State have provided evidence to justify how a one kilometre exclusion zone would be effective to protect the area.
Mr Shay and AS both say they assisted with the delineation of the three kilometre exclusion zone around Yagahong Hill. Mr Shay states that there should be a three kilometre buffer zone around the site ‘because it is so important to us.’ He says mining companies ‘can go anywhere else in the area, we just ask not within 3 kilometres of the Hill.’ According to AS, the area within the exclusion zone ‘is highly significant to our people’ and he says the three kilometre exclusion zone should be maintained due to the importance of Yagahong Hill.
Ms Gilla states that the two registered sites should not only cover the Bungoo Hills but should also be increased to reflect the importance of the site and to include unregistered sites within the vicinity of Yagahong Hill. According to Ms Gilla, the claim group want the three kilometre exclusion zone to be registered under the Aboriginal Heritage Act, though it is not clear if there has been an application to register the area. Ms Shay also states that the registered area should be larger due to the significance of the hill and because Yugunga-nya people ‘don’t want anyone to drill or mine within 3 kilometres of the site.’ It is notable in this respect that Ms Gilla describes a proposal by a previous company to explore within one kilometre of the foot of Yagahong Hill, to the east of the Meekatharra-Sandstone Road, as being ‘too close to the Hill.’ Ms Gilla recalls that ‘it upset me very much when I [heard] this is what they [wanted] to do.’ This is consistent with the evidence of Ms Lloyd concerning the claim group’s preparedness to consent to mining and exploration within a certain distance of Yagahong Hill.
Mr Morgan also deposes to the particular significance of ‘Mt Yagahong and its surrounds.’ Mr Morgan states that, in his expert opinion, any disturbance affecting the registered sites, the two hills to the east and their surrounds will
extend beyond the area due to the regional significance of the tjukurrpa or dreaming associated with the site. Monument argues that I should give little weight to Mr Morgan’s evidence because, among other things, he only speaks in general terms about sites in the vicinity of Yagahong and does not specify on what basis the surrounding area is of particular significance to the native title holders.The Yugunga-Nya People argue that Mr Morgan’s evidence establishes the broader context of Yagahong Hill. To the extent Mr Morgan’s affidavit does provide a broader context for the site, the regional significance of Yagahong Hill is already established by the Robinson report. In terms of the significance of the area surrounding Yagahong Hill and within the three kilometre exclusion zone, Mr Morgan’s evidence does not add a great deal to the evidence of the Yugunga-Nya witnesses, and I agree with the Tribunal’s assessment in Gilla v Allarrow No 1 and Gilla v Allarrow No 2 that his affidavit is of little assistance in that respect.
Monument contends that the three kilometre exclusion zone is arbitrary. It submits that, on a fair reading of the affidavit evidence, the concerns expressed by the Yugunga-Nya witnesses relate to Yagahong Hill and the Bungoo Hills rather than the surrounding area. Monument submits that the reference in Mr Shay’s affidavit to the fact that ‘some sites in the Pilbara have a 10 kilometre buffer zone’ only emphasises the arbitrary nature of the exclusion zone. In Monument’s submission, the fact that no other features are identified in relation to the exclusion zone is a relevant consideration, especially given that members of the claim group, such as Mr Shay and AS, were present when the coordinates for the exclusion zone were recorded. Monument argues that, if the men were able to participate in the delineation of the exclusion zone, they should have been able to identify sites of significance within the area other than Yagahong Hill and the Bungoo Hills.
The State accepts that Yagahong Hill and the Bungoo Hills are sites of particular significance to the Yugunga-nya People. However, it argues the Yugunga-Nya People have not provided any information regarding sites which are said to exist in the vicinity of Yagahong Hill or how the grant of the proposed licences is likely to interfere with these sites. Rather, the State submits that I should adopt the findings of the Tribunal in Gilla v Allarrow 1 and Gilla v Allarrow No 2.
In each of those decisions, Member O’Dea treated references in the affidavit evidence to Yagahong Hill as referring to the hill itself. He acknowledged, however, that the Yugunga-nya People hold ‘concerns about the areas surrounding the hills which are as important to them, in many respects, as the hill itself.’ Although Member O’Dea found that Yagahong Hill was a site of particular significance to the Yugunga-nya People and decided there was sufficient evidence to conclude there may be other sites of particular significance within the vicinity of the hill, he did not expressly consider the broader issue of whether the surrounding area could itself be regarded as an area of particular significance in accordance with the traditions of the native title holders.
The evidence relating to Yagahong Hill and the three kilometre exclusion zone in some ways resembles the evidence before the Tribunal in Weld Range Metals v Western Australia. That matter concerned the significance to the Wajarri Yamatji People of the Weld Range and specifically an area of approximately 2,800 square kilometres encompassing the Weld Range and the ochre mine at Wilgie Mia. This area was delineated by the Wajarri Yamatji People and depicted on maps using a rectangular pink box, which was used in support of an application for National Heritage listing and in respect of which a specific template exploration agreement had been adopted.
Although a considerably smaller area including the sites of Wilgie Mia and Little Wilgie Mia was eventually placed on the National Heritage List, the Tribunal found that the evidence demonstrated the particular significance of the larger ‘pink box’ area. As the Tribunal observed (at [294]):
Wilgie Mia cannot be viewed in isolation. It was a centre piece for traditional activities by the ancestors of the WY people and other Aboriginal people. It was a traditional centre of high cultural significance for the mining and trading of ochre with, in its near vicinity, important places for traditional ceremonies including initiation. The archaeological evidence establishes the general Weld Range area was frequented by Aboriginal people. Not surprisingly, given the importance of Wilgie Mia, their occupation of the area was widespread and occurred over a significant period of time. The breakaways outside the Weld Range contain caves that were lived in, painted and used as places to prepare young men for initiation. There are Dreaming stories associated with the Weld Range area which emphasise its importance to the WY people. The continuing belief in spirit people in and around the Weld Ranges is testament to the significance of the area in accordance with its traditions.
Deputy President Sumner rejected the State’s contention that there was no traditional basis for the delineation of the pink box area. He observed that the pink box area had been identified for ‘understandably practical reasons’ (namely, to place governments and mining companies on notice of the special nature of the Weld Range) and noted there was ‘plethora of evidence of the traditional significance of the area which may even extend beyond it.’
In this case, members of the claim group have sought to define a boundary around Yagahong Hill. Like the pink box area, the claim group has delineated the area ‘as important and distinct from the rest’ of Yugunga-Nya country and have maintained the exclusion zone in negotiations with Reward and subsequently with Jinka. The fact that Mr Shay refers in his affidavit to the existence of buffer zones around other sites in the Pilbara is less suggestive of the arbitrary nature of the area delineated and more indicative of Mr Shay’s belief that ‘we are being reasonable in asking companies to respect a 3 kilometre exclusion zone.’
The evidence of Ms Lloyd suggests the Yugunga-Nya People were prepared to amend the exclusion zone during negotiations with Reward. Ms Lloyd states that, in response to a request from Reward, the Yugunga-Nya working group passed a resolution to amend the exclusion zone so it would omit the Gabanintha Mine Site up to the southern boundary of the Yakong registered site. However, the working group was not prepared to bring the boundary further north to allow activities to be conducted east of the Meekatharra-Sandstone Road, as this was considered ‘too close to the Hill.’ This indicates that, although the three kilometre exclusion zone does not necessarily correspond to the area of significance, that area is nevertheless broader than the hill itself.
There are other features shared by the Weld Range and Yagahong Hill. Each site has a central role in the traditional and community life of the native title holders. According to Ms Shay, ‘Yagahong Hill is like our church. It is where we go to meet and gather in a traditional sense, for everything. That is where we go.’ Each site is identified as being one of the most important areas in the claim group’s country. For example, Mr Shay describes the hill as ‘the single most important place for the Yugunga Nya people’; Ms Gilla states that the hill is ‘the most important part of our country’ and ‘the most sacred site for Yugunga Nya People’. Like the Weld Range, there is also evidence that Yagahong Hill is significant not just to Yugunga-Nya people but to Aboriginal people in other regions of Western Australia.
In my view, there is evidence to suggest the significance of Yagahong Hill extends some distance from its base. However, I am not satisfied the evidence supports a finding that the area of particular significance extends so far as to encompass the entire three kilometre exclusion zone. This is consistent with the evidence of Mr Lloyd about negotiations with Reward and the group’s willingness to consent to exploration within a three-kilometre radius of Yagahong Hill but not within a distance of one kilometre from its base.
Is there a real risk of interference with areas or sites of particular significance
The Yugunga-Nya People contend that the grant of the proposed licences will result in activities that are likely to interfere with areas or sites of particular significance to the native title holders, in conflict with their traditions and customs. In particular, they are concerned about potential damage caused by activity near Yagahong Hill. Monument contends that its activities are not likely to exceed previous exploration activities in the area and that interference is unlikely to occur given the conditions and endorsements that will apply to the grant of the proposed licences, the applicable legislation, and the scale and nature of its intended activities.
Many of the concerns expressed in the affidavit evidence appear to be focused on the effect that drilling may have on Yagahong Hill. Mr Shay, for example, states that he is worried drilling would ‘destabilise’ the hill or disturb its foundations or the surrounding water systems. Ms Shay also talks about the effect of drilling on the ‘balance’ of the hill. Mr Stangler states that drilling would not have such an effect on the physical integrity of the Yagahong Hill, as the drill heads are of limited diameter and it would not be undertaken within one kilometre of the base of the hill. I accept that exploratory drilling is unlikely to result in physical disturbance to the hill, though I also accept the Yugunga-Nya People hold genuine concerns about the effect of drilling on the spiritual integrity of the site should it be undertaken in the vicinity of the hill.
The affidavit evidence also discloses concerns about a wider range of exploration activities. Ms Gilla deposes that activities such as driving over the area, soil sampling, rock chipping or even walking the area could damage sacred and important sites. Ms Gilla states that people can ‘easily damage sites without knowing, especially when there are a lot of sites in the area like there are here.’ According to Ms Gilla, even the removal of rocks could involve the contravention of traditional law and custom, as they may form part of a sacred site. This is also evident in the story recalled by Ms Shay:
A man once took a rock from the Hill and had to return it. Our family told him it would have to go back and he didn’t believe it. But his family started to get sick and then he realised how sacred the Hill is. He returned the rock to where he had taken it from.
Monument contends that substantial interference has already taken place within a three kilometre radius of Yagahong Hill. In Monument’s submission, these previous activities include not only drilling but also substantial mining activity and far outweigh the extent of its planned activities within the proposed licence areas. The Yugunga-Nya People, on the other hand, argue the majority of these activities occurred before the recognition of native title, and they also note that searches of the Aboriginal Heritage Inquiry System do not indicate any surveys having been conducted in the area, which suggests that previous disturbance occurred without a heritage survey.
I accept that exploration and indeed mining has occurred within the vicinity of Yagahong Hill. However, this is not to say that further exploration or prospecting activity is unlikely to interfere with the area according to the traditional laws and customs of the Yugunga-Nya People. The fact that an area has previously been disturbed does not mean the area has lost its traditional significance or that further disturbance would not constitute interference (see for example Weld Range Metals v Western Australia at [295]; Forest v Aruma Exploration at [64]; Western Desert Lands v Teck Australia at [123]). The evidence of the Yugunga-Nya witnesses clearly demonstrates the continuing significance of the area.
I note that, since the time the evidence of the Yugunga-Nya witnesses was given, the area has been subject to the old licences. The Mining Tenement Details Reports for P51/2438 and P51/2439 annexed to the affidavit of Mr McKellar indicate that an average of around $6,300 per annum has been spent on exploration activities for P51/2438 between 2011 and 2015 and around $3,000 per annum on exploration activities for P51/2439 for the same period. It is not clear what activities were involved in this expenditure. However, I note that only $278.29 was spent on ‘Aboriginal Survey’ for each of the licences. I infer from this, and the fact that no surveys are apparent from the searches of the Aboriginal Heritage Inquiry System, that significant works were not carried out pursuant to the old licences.
Monument submits that it has good intentions with respect to its obligations, including its legal and moral obligations in consulting with the Yugunga-Nya People and adhering to the requirements of the Aboriginal Heritage Act. Mr Baldock states that Monument will continue to abide by the provisions of the original deed polls and will enforce a one kilometre exclusion zone around the base of Yagahong Hill. Mr Baldock deposes that Monument will enforce a similar exclusion zone around the base of the Bungoo Hills, though I note this would be outside the area of the proposed licences. Mr Baldock states that he is aware of the Guidelines for Consultation with Indigenous People by Mineral Explorers published by the Department of Mines and Petroleum and will ensure the Yugunga-Nya People are consulted ahead of any drilling or disturbance. Mr Stangler states that he is aware of the concerns of the Yugunga-Nya People and the need to engage with them about activities that may be conducted within the proposed licence areas.
The Yugunga-Nya People contend that Monument has not engaged with them on the grant of the proposed licences and has not advised them how it plans to conduct its proposed operations. They also contend that, because Monument failed to comply with the undertaking to deliver a deed poll ‘in similar form’ to the Yugunga-Nya People, it should not have the benefit of the presumption of regularity. According to Ms Johnson, Monument has engaged in productive negotiations with the Yugunga-Nya People in relation to other tenements, and negotiations about the proposed licences were not pursued because the insistence on a three kilometre exclusion zone would have made them ‘unworkable.’
There is no obligation for parties to negotiate in relation to proposals in respect of which the State has asserted the expedited procedure. The conduct of the grantee party ‘in the shadow of objection proceedings’ may be relevant to the Tribunal’s predictive assessment, but failure to reach an agreement is not relevant to the inquiry (see Cherel v Faustus Nominees at [32]). In the present case, it is clear the size of the exclusion zone was an issue on which the parties could not agree. Although it is unclear why Monument did not provide the Yugunga-Nya People with a deed in similar form to the ones executed by Reward as contemplated by the original deed polls, I am not satisfied that such a failure is so reflective of Monument’s attitude towards consultation with the Yugunga-Nya People that it justifies the displacement of the presumption of regularity. The fact is that, on the evidence before me, Monument did intend to take on Reward’s obligations under the original deed polls, even though it has subsequently characterised the obligations in these proceedings as a ‘voluntary undertaking’ rather than a binding and enforceable commitment.
The State contends the Yugunga-Nya People have attempted to distinguish this matter from Gilla v Allarrow No 1 and Gilla v Allarrow No 2 largely on the basis of the mistaken belief that Monument was not going to observe or abide by the one kilometre exclusion zone around Yagahong Hill. I accept that Monument has assumed Reward’s obligations under the original deed polls, notwithstanding my finding that the deed polls apply only to the old licences. Monument has indicated its intention to observe and enforce the one kilometre exclusion zone, which is supported by the sworn evidence of Mr Baldock and Mr Stangler. I have no reason to doubt the sincerity of that intention. However, there are important distinctions between the circumstances of this matter and what was before the Tribunal in those previous matters.
The first distinction in that the deed polls previously considered by the Tribunal contained an undertaking that Reward would not transfer the old licences unless the transferee had signed and delivered a deed poll in similar form to the Yugunga-Nya People. A similar undertaking has not been made in relation to the proposed licences. Although Monument has stated that it will maintain the exclusion zone, it has not intimated that steps will be taken to require a purchaser to observe the exclusion zone. In Watson v Backreef Oil, the Federal Court held that the Tribunal may be required to take into account the likelihood of future dealings in respect of a proposed tenement. While the evidence before me does not disclose an intention on the part of Monument to transfer the proposed licences, I am alive to the possibility that the proposed licences could change hands at some point in the future.
The second distinction, which is related to the first, is the non-binding nature of the commitment to maintain the one kilometre exclusion zone. As I have already noted, Monument has sought to characterise the deed polls as a ‘voluntary expression of intentions.’ However, the Tribunal expressly stated in Gilla v Allarrow No 1 and Gilla v Allarrow No 2 that, through the execution of the deed polls, the grantee parties had ‘created for themselves a binding obligation to the native title party to withhold from the conduct of any exploration activities within the area referred to in the Deed, which is enforceable against it by the native title party.’ Unlike the deed polls, Monument’s commitment to observe the one kilometre exclusion zone is not enforceable by the native title holders, nor is there an enforceable obligation to procure any potential purchaser to execute a deed poll ‘in similar form.’ Given the significance of Yagahong Hill in the traditions and community life of the Yugunga-Nya People, this distinction is not a trivial one.
That is not to say that I doubt Monument will act consistently with its stated intentions. Nonetheless, the lack of a binding commitment does diminish the weight I am prepared to place on those intentions in the context of the predictive assessment I am required to make. In the circumstances, there is also a risk that, if the proposed licences are later sold, the new licence holder will similarly regard the undertakings made by Monument as ‘voluntary’ and simply choose to disregard them, particularly if that purchaser forms the view that it can meet its statutory obligations without giving effect to those undertakings.
Even if I were to accept the deed polls as binding, it would not necessarily negate the risk of interference. The Yugunga-Nya People have never accepted that a one kilometre exclusion zone is adequate and the evidence suggests the area of particular significance is likely to extend beyond a neat one kilometre perimeter. However, given my findings on the enforceability of the deed polls, it is unnecessary to reach a conclusion on that issue.
I note that Monument has previously made offers to enter into a regional standard heritage agreement in relation to the proposed licences. The State has indicated its intention to impose a condition on the grant of the licences requiring the holder to execute such an agreement if requested to do so by the Yugunga-Nya People. I have also had regard to the protective effect of the Aboriginal Heritage Act and the regulatory regime which supports its operation. This is not a case where the presumption of regularity has been displaced. However, each matter must be considered on its own facts (see Cherel v Faustus Nominees at [81]-[91]). In the circumstances, I am not satisfied the regulatory regime, the execution of a regional standard heritage agreement or Monument’s undertaking to consult with the Yugunga-Nya People with respect to drilling and other ground disturbance will be sufficient to prevent interference with Yagahong Hill or other sites of particular significance within its vicinity, unless there is a process of negotiation and consultation between Monument and the Yugunga-Nya People.
Based on the evidence before me, I find there is a real risk of interference with areas or sites of particular significance to the Yugunga-Nya People if the grant of the proposed licences proceeds.
Is there likely to be major disturbance to the land and waters concerned?
The Yugunga-Nya People contend the grant of the proposed licences is likely to cause major disturbance to the land concerned on the basis that it will have a significant impact on the claimants. They argue that the grant of a prospecting licence permits major disturbance to the land and there is no provision in the Mining Act requiring consultation with the native title holders with respect to the extent and impact of the proposed activities. The State submits that the Yugunga-Nya People have not provided any particulars of how the grant of the proposed licences would be likely to cause major disturbance to the land or waters, and Monument contends that the most significant disturbance will be limited in area using drill heads of limited diameter.
Whether the grant of the proposed licences is likely to involve major disturbance to the land or waters concerned must be assessed according the standards of the whole Australian community, including Aboriginal people. The concerns of the local Aboriginal community (including matters such as the community life, customs, traditions and cultural concerns of that community) are relevant to evaluating the degree of disturbance. While the question is not entirely subjective, the Federal Court has recognised that it necessarily involves an element of subjective assessment: see Little v Oriole Resources No 2 at [52]-[54], referring to Dann v Western Australia at 395, 401 and 413.
The affidavit evidence demonstrates that Yagahong Hill is a place of singular importance in the spiritual and community life of the Yugunga-Nya People. It is apparent from this evidence that the group has genuine concerns about the effect of exploration and prospecting activities on the hill, and drilling in particular. Mr Shay states that drilling will ‘destabilise’ the hill, both physically and spiritually, and will ‘disturb the rock and upset our spiritual lives and our community activities.’ Ms Shay describes the significance of Yagahong Hill to the community life of the group and their attitude towards drilling in the following terms:
If a company wants to drill or mine on or around Yagahong Hill, it would affect our lives so much, and our community life so much, that they may as well just shoot us in the head. The Hill is our beginning, our Bible, our creator, our dreamtime. It affects our lives in so many ways, our childhood, our family commitments, our connection to country and our whole way of living each day. All of these things come from Yagahong Hill. We have lost much of our country around Meekatharra. There are big holes everywhere. Yagahong Hill is something that is important to us. We want to protect that place for our children and their children.
The Tribunal’s evaluation of the degree of disturbance must be based on what is likely to be done, rather than what could be done in the exercise of the rights conferred by the proposed licences. While I accept that Monument’s activities will for the most part be limited in area and duration, I also recognise that the information provided by Monument about its proposed activities is not particularly detailed. Mr Stangler, for example, merely states that drilling will occur ‘if and where necessary.’
It is clear that the area around Yagahong Hill has already been disturbed to some degree by previous mining and exploration activity. The Tribunal is entitled to have regard to this history in evaluating the degree of disturbance (see Little v Oriole Resources No 1 at [39]-[44]). Ms Gilla acknowledges that some areas within the proposed licences have already been worked in the past, although to her knowledge there has been no drilling within the three kilometre exclusion zone. The evidence of Mr Stangler and Mr Mayes, however, suggests that drilling has already occurred within a three kilometre radius of Yagahong Hill. Although the Yugunga-Nya People argue these activities occurred without their consent, they are nevertheless relevant to the Tribunal’s assessment of whether the proposed activities can reasonably be described as involving major disturbance to the land or waters concerned. This is a separate question to whether there is likely to be interference with areas or sites of particular significance, and involves a different set of considerations.
The State intends to impose a range of endorsements and conditions on the grant of the proposed licences. These include conditions requiring the written approval of a DMP Environmental Officer before the use of drilling rigs, scrapers, graders, bulldozers, backhoes and other mechanised equipment for surface disturbance. The conditions also require all disturbances to the surface of the land made as a result of exploration to be backfilled and rehabilitated to the satisfaction of the Environmental Officer, and all surface holes drilled to be capped, filled or otherwise made safe immediately after completion. There is no evidence before me to suggest that Monument will not comply with these conditions.
I have also had regard to the regional standard heritage agreement as a minimum standard of protection available to the Yugunga-Nya People in the absence of a negotiated agreement: see Champion v Western Australia at [32]-[34]. The regional standard heritage agreement requires the proponent to consult with the native title party in relation to the conduct of a survey unless what is proposed constitutes low impact exploration. Though I have found that even activities that may be characterised as low impact exploration could interfere with areas or sites of particular significance within the three kilometre exclusion zone, I am not satisfied these activities would of themselves involve a major disturbance to the land or waters. Under the regional standard heritage agreement, more intensive activities such as drilling would require consultation and potentially the conduct of a heritage survey, which is likely to mitigate the impact of these activities on the land and waters concerned.
In light of these considerations, I find that the grant of the proposed licences is not likely to involve, or create rights whose exercise is likely to involve, major disturbance to the land or waters concerned.
Conclusion
For the reasons above, I find there is a real risk the grant of the proposed licences will interfere with areas or sites of particular significance to the native title holders in accordance with their traditions. While I am satisfied the proposed licences are not likely to interfere directly with community or social activities carried on by Yugunga-Nya people in the vicinity of Yagahong Hill or involve major disturbance to the land or waters, my conclusions regarding the likely interference with areas or sites of particular significance to the Yugunga-Nya People means that Monument and the State will be required to negotiate in good faith with the registered native title claimants before the proposed licences may be validly granted.
Monument has argued that the proposed three kilometre exclusion zone amounts to a veto. I note in this respect Mr Baldock’s evidence that a three kilometre exclusion zone would make the proposed licences ‘unworkable.’ Be that as it may, the Tribunal’s task in proceedings of this nature is to determine, among other things, whether there is a real risk of interference with areas or sites of particular significance in accordance with the traditions of the native title holders. It is now a matter for the parties to resolve, through a process of negotiation, how the proposed activities can occur without interference with Yagahong Hill and other sites in the area. If the parties are unable to reach agreement as to how this can be done, then the matter may come back to the Tribunal for a further determination.
Determination
The determination of the Tribunal is that the grant of prospecting licences P51/2927 and P51/2928 are not acts attracting the expedited procedure.
Mr JR McNamara
Member
11 November 2016
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