Gooniyandi Combined #2 v Callum Baxter - [2016] NNTTA 14

NATIONAL NATIVE TITLE TRIBUNAL

Gooniyandi Combined #2 and Another v Callum Baxter and Another [2016] NNTTA 14 (4 April 2016)

Application Nos: WO2015/0099 and WO2015/0119

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Gooniyandi Combined #2 (Gooniyandi native title party)

– and –

Yarrangi Riwi Yoowarni Gooniyandi (Yarrangi Riwi Yoowarni Gooniyandi native title party)

– and –

The State of Western Australia (Government party)

– and –

Callum Baxter (grantee party)

DETERMINATION THAT THE ACT IS NOT AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Ms H Shurven, Member

Place: Perth
Date: 4 April 2016

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – affidavit evidence used in previous inquiries – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure not attracted

Representatives of the Julia Smith, Kimberley Land Council
native title party: Angela Booth, Kimberley Land Council

Representatives of the Sarah Power, State Solicitor’s Office
Government party: Bethany Conway, Department of Mines & Petroleum

Representative of the Matthew Clohessy, Emerald Tenement Services
grantee party:

Legislation:Aboriginal Heritage Act 1972 (WA), s 5
Mining Act 1978 (WA) ss 58, 66
Native Title Act 1993 (Cth) ss 29, 30, 31, 32, 109, 146, 237

Cases:Adani Mining Pty Ltd and Another v Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People [2015] NNTTA 16 (‘Adani Mining v Wangan and Jagalingou’)
Andy Campbell & Ors on behalf of the Birriliburu Native Title Holders/Western Australia/Murchison Metals Ltd [2012] NNTTA 48 (‘Andy Campbell v Murchison Metals’)
Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, [2005] NNTTA 90 (‘Banjo Wurrunmurra v Bernfried Gunter Wasse’)
Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 (‘Brooking v Western Australia’)
Butcher Cherel & Ors on behalf of Gooniyandi Combined #2/George Brooking & Ors on behalf of Bunuba #2/Banjo Wurrunmurra & Ors on behalf of Bunuba/Mervyn Street & Ors on behalf of Yarrangi Riwi Yoowarni Gooniyandi/Western Australia/Carnegie Exploration Pty Ltd [2013] NNTTA 137 (‘Butcher Cherel v Carnegie Exploration’)
Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Faustus Nominees Pty Ltd, [2007] NNTTA 15 (‘Butcher Cherel v Faustus Nominees’)
Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560 (‘Hale v Western Australia’)
Sharpe v State of Western Australia [2013] FCA 599 (‘Sharpe v Western Australia’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
Wurrunmurra v State of Western Australia [2012] FCA 1399 (‘Wurrunmurra v Western Australia’)
Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 (‘Bunuba v Western Australia’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (‘Yindjibarndi v FMG’)

REASONS FOR DETERMINATION

Introduction

The National Native Title Tribunal must decide whether the State of Western Australia can grant exploration licence E04/2361 (‘the proposed licence’) to Callum Baxter, using the fast-tracking process known as the ‘expedited procedure’. Mr Baxter wishes to explore for minerals in an area of land which is approximately 13 kilometres north of Fitzroy Crossing in Western Australia, and approximately 179 square kilometres in size.
The licence is overlapped by various native title claim groups and determined holders of native title, who are each a ‘native title party’ (see s 29(2)(a) and 30(1) Native Title Act 1993 (Cth) (‘the Act’)). All references to sections of an Act in this decision will be to this Act, unless otherwise outlined. The native title parties overlapping the proposed licence are:
(a)Yarrangi Riwi Yoowarni Gooniyandi, a registered claim group since 15 February 2013. Their claim overlaps approximately 3.66 per cent of the proposed licence;
(b)Gooniyandi Combined #2. Non-exclusive native title rights and interests are held by the Gooniyandi Aboriginal Corporation on behalf of the Gooniyandi People following the Federal Court’s determination Sharpe v Western Australia on 19 June 2013. This determination overlaps approximately 2.01 per cent of the proposed licence;
(c)Bunuba Part B, registered as determined native title holders following the Federal Court’s determination Bunuba v Western Australia on 22 December 2015, overlaps approximately 50.69 per cent of the proposed licence;
(d)Bunuba #2, registered as determined native title holders following the Federal Court’s determination Brooking v Western Australia on 22 December 2015, overlaps approximately 4.41 per cent of the proposed licence;
(e)Bunuba, registered as determined native title holders following the Federal Court’s determination Wurrunmurra v Western Australia on 12 December 2012, overlaps approximately 27 per cent of the proposed licence.
Where a licence overlaps an area in which native title rights and interests are claimed or held by a native title party, the State can grant the licence without the State or the explorer needing to negotiate with each native title party if the ‘expedited procedure’ applies. The procedure applies if the licence meets the criteria in s 237. If it does not apply, then any overlapping native title party has the ‘right to negotiate’ with the explorer and the State.
Mr Baxter and the State assert the expedited procedure does apply. Two of the five native title parties, Yarrangi Riwi Yoowarni Gooniyandi and Gooniyandi Combined #2, assert the expedited procedure does not apply. They put forward this view by each lodging an objection application with the Tribunal. These two native title parties overlap the licence by a total of just under six per cent. A single set of contentions and evidence were submitted by the Kimberley Land Council on behalf of both these native title parties as the claim and determination are related (the Yarrangi Riwi Yoowarni Gooniyandi claim group are also members of the Gooniyandi Aboriginal Corporation who hold non-exclusive native title rights and interests for the Gooniyandi People in relation to Gooniyandi Combined #2). From here on, this decision refers to the Gooniyandi Aboriginal Corporation and Yarrangi Riwi Yoowarni Gooniyandi as ‘the native title parties’, unless otherwise distinguished. The native title rights and interests of those native title parties are set out at Appendix A. None of the remaining three groups overlapping the licence lodged an objection application.
The proposed licence cannot be granted while there is an objection on foot. Objections can be finalised if, for instance, the native title parties withdraw them (this often happens where parties have reached agreement), or if the objections are addressed through the Tribunal making an arbitral decision as to whether or not the expedited procedure applies (see s 32). I was appointed by the Tribunal’s President, Raelene Webb QC, to make the decision as to whether the expedited procedure applies to the proposed licence, that is, to the whole area subject to the proposed licence rather than only the portion that is covered by the claim or determination of a particular native title party (see Hale v Western Australia).
The explorer and the native title parties who lodged an objection application in this matter had the opportunity to try to reach agreement. However, agreement was not reached and as the objections are active, I am proceeding to make the arbitral decision in this matter as required by the Act.
All parties were content for the decision to be made based on written materials, rather than by way of a hearing. I am satisfied the matter can be determined using the written materials.
After addressing some geographical location and evidentiary issues with the written materials, I will address the following matters in this decision to determine whether or not the expedited procedure should apply to the grant, as required by s 237:
(a)Is the grant likely to interfere directly with the carrying on of the community or social activities of the native title parties?
(i)What are the native title parties’ community or social activities?
(ii)What are Mr Baxter’s proposed activities?
(iii)Will the activities of Mr Baxter be likely to interfere with the native title parties’ community or social activities?
(b)Will the grant be likely to interfere with areas or sites of particular significance to the native title parties?
(i)Are there any relevant sites or areas of particular significance?
(ii)Will the activities of Mr Baxter on the proposed licence be likely to interfere with any sites or areas of particular significance?
(c)Will the grant be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned?
If the three factors (a)–(c), outlined in [8] above, are answered in the negative, then the expedited procedure applies and Mr Baxter and the State do not need to negotiate with the native title parties (see s 32). If one or more of those factors is answered in the affirmative, then the negotiation parties will need to enter into good faith negotiations about the grant of the proposed licence (see ss 31 and 32(5)). It is the consequences of the grant of the proposed licence on (a) the carrying on of community or social activities, (b) sites of particular significance and (c) land or waters of the native title parties claiming or holding native title rights, which are the focus of the inquiry. Those rights and interests are outlined in Appendix A to this decision.

Geographical issues and affidavit material

All parties submitted a statement of contentions to the Tribunal putting forward their views about the location of various previous mining tenure and sites on and near the proposed licence, and both the State and native title parties provided supporting material. Mr Baxter’s statement of contentions is brief and he provided a copy of heritage search results from the Department of Aboriginal Affairs’ (DAA) inquiry system. He says the expedited procedure should apply, relying on the State’s contentions and his submissions.
The native title parties submitted a single set of contentions, a reply, and two affidavits being:
(a)The affidavit of Ms June Davis affirmed on 22 April 2013 in relation to a previous objection application for tenement E04/2218, which entirely overlaps and is larger than the proposed licence, as explained in more detail later in this decision. Ms Davis states she was born at Fossil Downs and spent her childhood around the southern part of E04/2218. I note Fossil Downs is approximately three kilometres to the east of the proposed licence. Ms Davis explains she is one of the senior people for the Gooniyandi determination and under Gooniyandi law has authority to speak about land matters. She states she knows the E04/2218 area very well and annexed to her affidavit is a map.
(b)The affidavit of Mr Stanley Holloway affirmed on 16 May 2005 in relation to a previous objection application for tenement E04/1417, which also entirely overlaps the proposed licence. Mr Holloway explains he is a named Applicant and a senior person for the Gooniyandi determination, and that under Gooniyandi Law he has the authority to speak for Gooniyandi country. He states he knows the area of E04/1417 well because he has been shown a map (annexed to the affidavit) and been to the area many times.

Relationship between the proposed licence and E04/2218 and E04/1417

The Tribunal’s Geospatial Services produced a map, which no party objected to, showing how the proposed licence (that is, the area as advertised in the s 29 notice) compares to E04/2218 and E04/1417. I note the map shows:
(a)In relation to Ms Davis’ affidavit, the entire area of the proposed licence is covered by E04/2218, though E04/2218 is approximately 276 square kilometres in size and extends beyond the proposed licence in places (namely, the north eastern corner, a small portion west of the bottom south western corner, and a portion west of the top north western corner); and
(b)In relation to Mr Holloway’s affidavit, the area of the proposed licence is the same area as E04/1417.
The State’s Tengraph Quick Appraisal confirms E04/2218 and E04/1417 overlap the proposed licence by 100 per cent.
In respect of Ms Davis’ affidavit, the State raises an issue concerning which native title parties overlap which parts of the proposed licence. The State points to Ms Davis’ statement that ‘the exploration licence area falls wholly within Gooniyandi country although some areas to the north may be contentiously Bunuba’. The State seeks to clarify how much of that previous tenement (E04/2218) overlapped with Gooniyandi country in respect of the previous objection inquiry, for which the affidavit was submitted. The State outlines that only four per cent of the tenement in that matter was Gooniyandi country. The State concludes the evidence in Ms Davis’ affidavit refers to a much larger area than the proposed licence, and Ms Davis’ reference to the tenement area needs to be construed in relation to a much larger area, approximately 95 per cent of which is Bunuba land. As explained above, the tenement addressed in Ms Davis’ evidence is larger than the proposed licence but it does wholly encompass it.
As for analysing whether the land is Gooniyandi or Bunuba land, I am to decide about the licence area as a whole. The area that I am to consider, therefore, is not necessarily to be limited to the particular area subject to the objector’s native title claim or determination. As the Court explained in Hale v Western Australia, it is ‘always going to be an evidentiary question as to whether or not an objector, even one who only has a registered native title claim over a portion of the land or waters the subject of the proposed act, will be affected in relevant ways by the [grant of the licence]’ ([112]; see also [102], [107]-[108], [111]). As was noted in that decision (at [113]):
Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.
I accept each of these previous tenements overlap the proposed licence. I also accept both Ms Davis and Mr Holloway have authority to speak for the country covered by the proposed licence.

Overlap with existing mining tenement M04/283

The State has raised another location issue relating to how the area of mining lease M04/283 relates to the proposed licence. The State says that the proposed licence has a portion cut out of the very south eastern corner of the licence, comprising the area of existing mining lease M04/283, and attaches a map to its contentions which shows the M04/283 area as excluded from the proposed licence. Many of the State’s contentions challenge the relevance of the native title parties’ evidence relating to land which is within the boundary of the proposed licence, but subject to the M04/283 area. I note the State’s Tengraph Quick Appraisal document from August 2015 shows M04/283 is a live tenement which overlaps 3.9 per cent (or approximately seven square kilometres) of the proposed licence.
The native title parties, in their reply material, are of the view that M04/283 is not excluded and any evidence relating to M04/283 is relevant for this inquiry. Following the native title parties’ reply, the State provided an email to the Tribunal and parties explaining the area of M04/283 is not available for grant as part of the proposed licence and should not be considered for the inquiry, and attaches a map showing how the two areas overlap. The State wrote:
... It appears that a large portion of these contentions are based on a misunderstanding as to the area that is able to be granted by [the Department of Mines and Petroleum] in relation to E04/2361. The portion of E04/2361 that is overlapped by mining tenement M04/283 is unable to be granted as part of the exploration licence. This is referred to in the government party's contentions- at [75]:
"... the area subject to mining lease M04/283 is excluded from the area available for grant".
...Any area within a tenement application that is subject to a separate live tenement is unavailable for grant. It is not necessary for the grantee party to withdraw its current application and lodge a new application.
The Tribunal prepared a map showing how M04/283 relates to the proposed licence, which no party objected to, displaying the majority of M04/283 falling within the proposed licence. Although the State has indicated in email correspondence and its contentions that the particular area subject to the mining lease is unable to be granted, the State’s Tengraph Quick Appraisal record for the proposed licence incorporates the M04/283 area, consistent with the s 29 notice. The Tribunal’s inquiry is in relation to the whole licence as per the s 29 notice issued by the State (see Hale v Western Australia at [48]–[54], [116] and [119]; see also Adani Mining v Wangan and Jagalingou at [16]). I regard the evidence about the area of the proposed licence subject to the M04/283 area to be relevant for this inquiry. I do note, however, that as M04/283 is a mining lease, held by another grantee party, Mr Baxter is unable to do any exploration on that portion of the proposed licence which is overlapped by M04/283. As such, it is not likely his activities will interfere with the native title parties’ social or community activities, sites of particular significance, or land and waters, which exist or occur in M04/283.

Further comments regarding affidavit evidence

The State’s contentions (at 28) challenge the relevance of the affidavits of Ms Davis and Mr Holloway, asserting that:
(a)Although the State’s Tengraph Quick Appraisal document may suggest the previous tenements E04/2218 and E04/1417 overlap the proposed licence, the maps attached to both affidavits show they cover an area different to the proposed licence; and
(b)It is difficult to determine the relevant evidence for the proposed licence as the native title parties ‘have not provided any new evidence’ and have not ‘attempted to distinguish which parts of the affidavits apply to this Inquiry’.
I find that Mr Holloway’s evidence is relevant for this inquiry, as the tenement E04/1417 fully overlaps and covers that same area as the proposed licence. Ms Davis’ evidence is also relevant, though I have given careful consideration in this decision of whether the evidence is addressing the areas of E04/2218 which extend beyond the proposed licence. I also take into account the age of the affidavits, being approximately ten years and two years old respectively, and whether this affects any of the assertions made.
·Are the affidavits relevant?
Section 109 of the Act states the 'Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence'. Nevertheless, I need to ensure materials I consider are relevant to the issues to be determined. I conclude the two affidavits could affect the assessment of the facts in issue in this matter. In addition, s 146 of the Act gives me a discretion regarding the evidence and materials I can adopt that may be relevant to an inquiry. I accept the affidavits are relevant to this inquiry.

Having accepted the affidavits as relevant, I consider the following issues to determine what weight I should give them:
·Are the affidavits an accurate record of the deponents’ views?
These affidavits record recent information reflective of thousands of years of traditions and community life. It is not information which has come about from a moment in time, or an incident which the deponents were a witness to. Rather, they have lived the information on an ongoing basis. The evidence continues to be part of the cultural context within which the native title holders and claimants live. The affidavits relate both to the use of the area at the time of deposing, and also reflect traditions that have existed for thousands of years.
·Is the purpose of the affidavit similar in the current and previous matters?
The original affidavits were sworn to be used in proceedings where an explorer sought the grant of land which overlapped with the land subject to the native title rights and interests of the deponents. The affidavits are to be used for the same broad purpose in this matter.
·Will any party be prejudiced if the affidavits are used in this matter?
All parties have had opportunity to comment on the contents of the affidavits and the use of the affidavits in this inquiry. I do not believe any party will be prejudiced. No party has requested, nor do I believe it is necessary, for any of the statements in the affidavits to be explained by the witnesses.
·What weight to give the affidavits?
Affidavit evidence can only be entitled to the same weight as oral evidence if those who swear affidavits realise that the obligation of the oath is as serious when making an affidavit as it is when making statements in the witness box. There is nothing in this current matter to suggest I should not afford that same weight to these affidavits. In construing the affidavits, I have taken into account the areas they relate to, and the age of each, as explained above.

(a) Is the grant likely to interfere directly with the carrying on of the community or social activities of the native title parties?

(i) What are the native title parties’ community or social activities?

Living, accessing and camping

The native title parties contend that members of the native title parties go to the proposed licence area every weekend, referring to Ms Davis’ affidavit (at 15 and 27). In my evaluation of the evidence, I take into account the affidavit was affirmed in 2013, and in relation to E04/2218 (as noted, a larger area than the proposed licence, but wholly encompassing it). The State has contended that E04/2218 extends much further than the native title parties’ external boundaries and that the native title parties haven’t made further efforts to relate the area of E04/2218 to the proposed licence. The evidence describes members of the native title parties visiting the licence ‘last weekend’, members of Ms Davis’ community and specifically, the Holloway and Malo families, going to the licence area every weekend and further accessing it. For example, Ms Davis states (at 27) ‘we always go out to [E04/2218] before Geike [sic] Gorge, this side of Fitzroy’.
Ms Davis’ affidavit has various descriptions of camping activities. Ms Davis describes (at 12–13) all of the families at Fossil Downs going to camp at ‘holiday camp’ south of E04/2218. This puts these activities south of the proposed licence. In addition, the camping is described largely in the past tense and there is a general lack of clarity around when it took place.
The native title parties’ contentions state their members live very close to the proposed licence in the nearby Muludja community. The Muludja community appears from Tribunal mapping to be approximately two kilometres from the eastern boundary of the proposed licence. I note Mr Holloway’s affidavit states he then lived at Muludja with his family. The native title parties contend the close proximity of the proposed licence to an Aboriginal community indicates the area is used more frequently than areas further from the community (referring to various Tribunal decisions). The State says the native title parties have not provided evidence that proximity to Muludja community has increased the frequency or intensity of activity. The native title parties do not accept that an increase needs to be demonstrated.
I agree with the contention that having an Aboriginal community close to a licence is likely to mean a greater intensity of activity by community members on or near a licence. However, I need to take into account evidence and information about the activities of a community or social nature which occur on the licence, which arise from native title rights and interests, and interference by the explorer’s activities must be substantial (see Yindjibarndi v FMG at [16]). I provide a more detailed analysis on this matter below, for the proposed licence.

Hunting, fishing and collecting

Ms Davis’ affidavit describes various fishing, hunting and collecting activities within the area of the previous tenement (E04/2218). Her statements can be summarised as follows:
·    Various fish are caught in the licence area, there is great fishing there, and she went on a fishing trip near Boab Creek the week prior to deposing the affidavit;
·    ‘When we go out hunting in the exploration license area we catch land goanna wawanyi and water goanna girwili, kangaroo thirrwoo and wild pig’ and the food caught is cooked on the day of catching;
·    Regarding collecting items, ‘when we go to the exploration license area we collect: Bush melon, bush cucumber wanerriny, plums gurney witchetty grub laearndi bush grapes ngooji and wild figs’.
Mr Holloway’s affidavit describes often hunting hill kangaroo, various snakes or porcupine within the licence area (that is, within E04/1417).
Under the heading of ‘reliance on products’ the native title parties contend in these matters ‘members of the [native title parties] regularly hunt, fish and gather bush tucker from and near the Tenement Area at all times of the day, demonstrating a reliance on foods and other products from and near the Tenement Area...’ (at 26). While ‘reliance’ is not an activity as such, it can indicate the extent to which native title parties use the land or waters concerned for social or community activities.

Intergenerational teaching

The native title parties contend that ‘intergenerational and peer to peer knowledge transfer occurs regularly on and very near’ the proposed licence, inclusive of sharing stories and teaching various traditional customs. Ms Davis describes how she learnt about the E04/2218 area and listened to stories from her father, her great grandmother and other people, and was taught about collecting bush tucker by her great grandmother and father. She explains (at 24–26):
Going out to the tenement area is important for my community as it helps teach young people and lets the old people share stories and ways of finding and collecting food from the bush, the traditional way of transferring knowledge is through stories and where the young people can see and do the collecting and hunting themselves.
When we take the children out to [E04/2218] with us, at the junction of the rivers and all around the bottom section of the tenement, we tell them stories about the country and speak in language, so they learn their language words. Last week we did not take any children out with us we just had a quiet relaxing time fishing but the time before we went out to the exploration license area with a couple of cars and lots of young people.
We take the children out to the junction to go fishing and play games which is where we teach them the Gooniyandi language. When the river is flowing we take the children out to the sand.
In relation to these comments, I note two things. Firstly, the river junction (of Fitzroy and Margaret River) is at least four kilometres south of the proposed licence. Secondly, it is not clear when these activities occur, how frequently or where on the proposed licence. It does appear that, like the camping activities described, the intergenerational teaching occurs somewhat to the south of the proposed licence. I also note the area of E04/2218, to which Ms Davis’ affidavit originally applied, extended further to the south than the proposed licence.
In Mr Holloway’s affidavit, he explains how his grandsons catch animals for him when they go out hunting, and he says ‘the exploration license area’ (E04/1417) is used to teach young people to hunt and get manyi wild vegetable foods.
Given the proximity of the proposed licence to an Aboriginal community, and the various activities which are said to take place on or near the licence, I accept it is likely the native title parties do conduct some social or community activities on or near the licence. However, in relation to all of the social or community activities outlined by the native title parties as occurring on or near the proposed licence, including camping, hunting, fishing, collecting and intergenerational teaching, I am not clear on the intensity of these activities, or how frequently they are conducted.

(ii) What are Mr Baxter’s proposed activities?

Mr Baxter’s contentions explain:
·he intends ‘to conduct initial exploration over the surface area consisting of soil sampling and ground geophysics’;
·he plans to access the exploration targets via existing tracks;
·ground-disturbing activities will not be required for early stage work programs;
·he is willing to enter into the Regional Standard Heritage Agreement (RSHA – this is discussed at [88] below);
·he would be willing to undertake a heritage survey if required ‘to ensure that Aboriginal Sacred Sites are not disturbed’.
I note the State’s Tengraph Quick Appraisal indicates there are 25 tracks, one minor road, two airfield runways and various other features on the proposed licence.

(iii) Will the activities of Mr Baxter be likely to interfere with the native title parties’ community or social activities?

The native title parties make the point that, in the absence of evidence detailing which exploration activities are likely to occur on the licence for the duration of the grant, I may presume the explorer will fully exercise the rights conferred by grant. They assert that presumption applies to this inquiry and they also note the information the State provided them, from Mr Baxter, in support of the proposed licence (as per s 58(1)(b) of the Mining Act 1978 (WA) (‘the Mining Act’)) contained only minimal detail about the first phase of the proposed exploration. That information contains an itemised budget for the first phase and says the program is ‘aimed at locating economic deposits of zinc and/or base metals. This will comprise the use of aerial photography, geological mapping, soil geochemistry, sediment and rock chip sampling, geophysical and remote sensing surveying’. The rights of grant are set out in s 66 of the Mining Act. They include, subject to various conditions: entering and re-entering the land, digging pits, trenches and holes, excavating or removing up to 1000 tonnes of certain material, taking or diverting water from certain water sources. Given the limited information provided about Mr Baxter’s activities throughout the life of the proposed licence, I assume, for the purposes of this inquiry, Mr Baxter may exercise the full suite of rights available to him under s 66 of the Mining Act.
The native title parties contend that grant of the proposed licence is likely to directly interfere in a ‘substantial manner’ with their social or community activities. Ms Davis’ affidavit states if ‘exploration companies come out to [E04/2218] they will affect whether we can go collecting our food traditional way, we want to still be able to go out to our country and take our young people out there so they can learn how to survive on their land...’ (at 28). The State contends there is no evidence that Mr Baxter’s presence would affect the native title parties collecting food in the traditional way.
The State has acknowledged that both affidavits demonstrate regular hunting, fishing and collecting bush tucker around the south-eastern portion of the proposed licence, but also contends the affidavits refer to many areas that are outside of the proposed licence. Specifically regarding hunting, the State contends the evidence shows those activities could occur in areas around the licence, which suggests the grant of the proposed licence would not cause interference with hunting. I think that does not necessarily follow, and that the question of interference is separate to whether the activities occur on the licence. I accept that living, accessing, hunting, fishing and collecting occur, particularly on the south east portion of the proposed licence, and also into the area of licence E02/2218 that was addressed by Ms Davis’s affidavit, but which does not form part of the proposed licence. However, the extent of such activities, and the frequency or intensity with which they occur, is not described beyond a limited outline (as noted earlier in this decision).
Regarding intergenerational activities, the State says there is no evidence they must occur on the proposed licence, or that the activities will be interfered with. The State contends the activities described in the affidavits can be conducted in other parts of the claim and determination areas. I agree the evidence on intergenerational activities is limited, as is the evidence relating to camping, which also appears to occur off the proposed licence. The extent to which it occurs on the proposed licence is not clear.
Although Fitzroy River is within the proposed licence, the State makes the point that the Fitzroy River is not within the boundaries of the native title parties’ determination or claim areas and that the native title parties have not provided evidence showing how the grant of the proposed licence over an area around the Fitzroy River would affect their community or social activities. I agree the evidence on this point is limited.
Another factor I consider is the effect of past and current tenure on the proposed licence. Looking at the State’s Tengraph Quick Appraisal, it appears the significant tenure includes: a petroleum permit; two Crown reserves (as conservation parks); two historical leases; four pastoral leases; a road reserve; and one vacant crown parcel. Previous tenure consisted of: 24 exploration licences, two mining leases, 109 mineral claims and two temporary reserves. The State explains it cannot provide all the detail about the nature and extent of prior mining activity as that information is not publicly available. It could potentially provide expenditure details to indicate the extent of the prior work, but did not provide such information due to the quantity of tenure. The State refers to the Tribunal having found on ‘numerous occasions’ that hunting and mineral explorations are inherently capable of coexistence and contends a similar finding should be made in this case as there is no evidence suggesting otherwise.
Parties have, throughout their contentions and evidence, suggested I adopt parts of two previous decisions where the parcel of land covered by the proposed licence has been subject to an arbitral inquiry: Banjo Wurrunmurra v Bernfried Gunter Wasse and Butcher Cherel v Carnegie Exploration. In the former, the expedited procedure was held not to apply, and in the latter, it was held to apply. Throughout the present inquiry, I address those decisions, and the arguments for and against adopting various parts of the previous decisions. It is important to note: I am not bound by previous decisions; I may have regard to relevant evidence given in another proceeding; I can give appropriate weight to previous decisions and relevant evidence from other proceedings; and I have a statutory discretion to adopt any previous reports, findings, decisions, determinations or judgments (see s 146 of the Act, as noted briefly at [20] of this decision). My comments about those two previous cases are made in that context.
In Banjo Wurrunmurra v Bernfried Gunter Wasse, where Mr Holloway’s evidence was used previously, the expedited procedure was held not to apply. However, it is not clear the extent to which the decision was based on s 237(a) evidence. It appears largely to rest on evidence provided in relation to s 237(b). Nevertheless, even taking into account the possibility that part of the decision may have rested on interference with community or social activities under s 237(a), the evidence in that previous matter included affidavits and contentions from Bunuba people, and the evidence was substantially different in that matter from the evidence in the current matter in relation to s 237(a).
Having considered the available evidence in this current matter, I do not conclude the native title parties have established that social or community activities occur on the proposed licence or parts of the proposed licence to such an extent that Mr Baxter’s exploration activities, even at their full extent, would substantially interfere with them.

(b) Will the grant be likely to interfere with areas or sites of particular significance to the native title parties?

As well as an area or site being of special or more than ordinary significance to the native title parties in accordance with their traditions, it must be known, it must be able to be located and the nature of its significance explained to the Tribunal (see Silver v Northern Territory).

(i) Are there any relevant sites or areas of particular significance?

Sites from DAA heritage search results

The native title parties’ contentions (at 49) refer to the State’s DAA heritage search results, particularly those sites which they say are ‘within the tenement area’ and ‘each of which are on or intersect with the determined Gooniyandi area and very close to the Yarrangi Riwi Yoowarni Gooniyandi claimed area’.
Sites recorded with the DAA can be characterised in two main ways. Firstly, as a Registered Site, which means the site or place has been assessed as meeting s 5 of the Aboriginal Heritage Act 1972 (WA) (‘AHA’). Secondly, as an ‘Other Heritage Place’, which includes sites or places which have been identified but assessed as not meeting s 5, as well as places where information has been received in relation to the place but an assessment has not been completed. For s 237(b), a site of particular significance need not be recorded on the DAA register. However, the register can help provide additional or supporting information when the affidavit evidence alone is limited or general in nature. Existence of sites recorded on the DAA register does not necessarily mean they are of ‘particular significance’ for the purposes of deciding whether or not the expedited procedure applies, as evidence of more than ordinary significance is required for the purposes of the Act.
The native title parties refer to the following DAA registered sites:
·12457 Margaret River 1
·12458 Margaret River 2
·12687 Fitzroy River
However, they do not refer in any detail to the registered site 12701 Oscar Range, which I note is in the north west portion of the proposed licence. This is marked on Tribunal mapping as country which falls under the Bunuba determination. As noted, I do not have an objection in this inquiry from people representing any of the overlapping Bunuba determination native title holders. Ms Davis has made it clear in her evidence that the areas to the north of the proposed licence ‘may be contentiously Bunuba’, and her evidence largely relates to the south east of the proposed licence. The native title parties also refer to one DAA ‘Other Heritage Place’: 27861 Saddlers Yard (Guladji).
I agree with the native title parties in respect of their description of the location of those four sites being on or very near to their determined or claimed areas, although the Fitzroy River runs adjacent to the Bunuba Part B native title determination and is some five to six kilometres from the native title parties’ country. Margaret River 1, Margaret River 2 and Saddlers Yard all appear to fall within M04/283, and so would not be subject to the activities of Mr Baxter. However, as they are said to form part of a matrix of sites in the area, I provide further analysis of these areas later in this decision.

The native title parties also briefly refer to DAA registered sites 14408 and 12794, which are not on the proposed licence but near to it. However, they provide no detail about these sites, nor ‘other registered or unregistered sites in the area’, which they say exist. As such, there is little further I can say about these two places, and I provide only a brief analysis of them later in this decision.

Sites 12457 and 12548 (Margaret River 1 and 2)

The native title parties’ contentions describe artefact scatter sites 12457 Margaret River 1 and 12548 Margaret River 2 as sites of particular significance ‘as they link historic Gooniyandi land use with present-day community life, continued occupation and the unbroken connection between people, place and culture which is reflected in the determined native title rights and interests held by the Gooniyandi Aboriginal Corporation over the location of the sites’ (at 51). The native title parties’ contentions describe the location of the sites, their use of local materials in the exploitation of certain flora and fauna, and ‘continued connection and occupation of the land by Gooniyandi people over at least 22,000 years’ (at 51).
The State contends there is no evidence about these sites or their significance to the native title parties. I disagree. While the evidence is brief, it does detail why these areas are important to the native title parties in accordance with their traditions, and I conclude they are sites of particular significance. The State has provided a copy of the DAA extract which provides further information about these sites. Although the search extract lists these sites within the proposed licence, the State contends that they are within the M04/283 area and, therefore, no longer fall within the area available for grant. Tribunal mapping indicates those sites are within M04/283, and I agree with the State to the extent that those sites are within M04/283. While M04/283 makes up part of the area of the s 29 notice, it is not an area which Mr Baxter will be exploring as it has already been granted, and is a live tenement held by another grantee party.

Site 27861 Saddler’s Yard

This site is listed as a mythological ‘other heritage place’ on the DAA extract provided by the State. It is on the proposed licence. The native title parties’ contentions (at 52) describe it as less than two kilometres from the Muludja community, and having ‘particular significance for Gooniyandi people as it is a representative part of the rich mythological history linked to Fitzroy River catchment, which included creation stories linked to the Jila-Kalpurtu (Rainbow Serpent)’. The State says there is no evidence about this site or its significance beyond the above statement, nor evidence about interference from grant of the proposed licence. As with the Margaret River sites, while the information provided is brief, it sufficiently explains the particular significance and I accept Saddlers Yard is such a site for the native title parties, given its link to a creation story and its mythological history connected to the Fitzroy River.
The State contends it is unclear whether it falls within the boundary of the licence area that can be granted (that is, the proposed licence excluding the M04/283 area), and for various reasons concludes it falls outside of the proposed E04/2361 area. On the basis of Tribunal mapping, it appears this site is within M04/283 and so will not form part of Mr Baxter’s exploration area for the reasons already outlined.

Sites 14408 and 12794

The native title parties describe two registered sites immediately east of the proposed licence’s south-eastern boundary. Little information is given. Although these sites did not show in the DAA search results for the proposed licence (presumably because they are just outside the licence), they are relevant if a clear nexus is shown between the activities of the explorer and the issues to be considered (see Silver v Northern Territory at [35]). In this case, very little information has been provided. I am unable to conclude such a nexus exists between the activities of Mr Baxter in this matter and any interference with these sites. I do not conclude these are sites of particular significance.

Site 12687(Fitzroy River) and Yawalja

The native title parties describe a registered mythological site comprising the whole Fitzroy River system, including the proposed licence, which has creation stories associated with it which are a gazetted value of the West Kimberley National Heritage Listing. The native title parties’ contentions (at 65) also describe the ‘particular significance’ of the Fitzroy River and its tributaries as one of the components (along with other areas and sites) that ‘form an interrelated and connected landscape and area of particular significance’.
Mr Holloway goes into some detail describing an area (Yawalja) which appears to lie somewhere between the Fitzroy and Margaret Rivers. I do not go into detail describing the area in this decision as it appears to be a sensitive area. While there is no detail about where this site specifically lies, the general description places it somewhere in the southern portion of the licence and I am comfortable to conclude Yawalja is within the licence.
The State notes the map attached to the DAA search results shows site 12687 Fitzroy River as being outside the external boundaries of the native title parties’ claim and determination area. However, I reiterate that my consideration is in relation to the licence area involving a factual analysis as to how the proposed grant affects sites of particular significance of the native title parties’.
In their reply material, the native title parties submit that evidence provided by the native title parties in relation to the area of the licence covered by the Bunuba claim is relevant.
The native title parties emphasise that in an earlier Tribunal decision (Banjo Wurrunmurra v Bernfried Gunter Wasse) referring to the same affidavit of Mr Holloway, the Tribunal noted that the activities of the Gooniyandi claimants (as they were, now determined native title holders) extend beyond their claim area including to the area of the Bunuba claim. As noted above, in that decision, the Tribunal determined the expedited procedure did not apply. Familial links and close associations between Gooniyandi and Bunuba native title parties were noted based on Mr Holloway’s evidence, and the Tribunal inferred that sites mentioned were of interest to both parties (see [16] of that decision and paragraph 14 of Mr Holloway’s affidavit). That same evidence has been presented in this inquiry. Based upon my consideration of the whole of the proposed licence, I find the native title parties’ assertions about the particular portion of the Fitzroy River relevant.
However, as noted earlier in this decision, I must carefully consider the potential applicability of any conclusions of the Tribunal in Banjo Wurrunmurra v Bernfried Gunter Wasse. Mr Holloway’s evidence was the same in that previous matter as in this current matter. In the previous matter, there was additional detailed evidence from one of the Bunuba claimants (now a determined native title holder) which formed part of the Tribunal’s consideration. Part of the evidence from the Bunuba claimant (at 20) was that the segment of the Fitzroy River in the licence was where ‘Gooniyandi country starts and extends eastward. Gooniyandi country never crosses over here’. Again, this supports that the south east portion of the proposed licence is an important area to the native title parties in this matter.
The former Tribunal inquiry of Butcher Cherel v Carnegie Exploration is of further relevance to my consideration of Bunuba interests in the area. In that matter, where Ms Davis’ affidavit was first used (over E04/2218), the decision was that the expedited procedure applied. That was in 2013, some eight years after the decision in Banjo Wurrunmurra v Bernfried Gunter Wasse. Once again, the evidence in Butcher Cherel v Carnegie Exploration was different to the evidence in the present inquiry, and different to the evidence in Banjo Wurrunmurra v Bernfried Gunter Wasse. It is important to emphasise I must make the decision in this current matter, based on all of the relevant evidence and information available to me.
In this present matter, I have no evidence from the Bunuba native title holders or claimants. I note the previous Tribunal decision Banjo Wurrunmurra v Bernfried Gunter Wasse (at [31]) concluded ‘it is clear that registered sites occupy this portion of affected land [the two per cent of Gooniyandi overlap] and the general area of significance to the Gooniyandi people stretches west, beyond the official boundaries of the claim area, to the Geike Gorge/Fitzroy River Region...’ I adopt that conclusion for the purposes of this present matter also, as it is consistent with Ms Davis’ affidavit regarding the ‘boundaries’ of Bunuba and Gooniyandi country.
Another distinguishing feature of the Banjo Wurrunmurra v Bernfried Gunter Wasse decision is there were said to be six DAA registered heritage sites, and in the present inquiry there are four, despite the licence covering the same ground. There is no explanation from any party as to why this is so. It may be that, for some reason, these sites have been removed from the DAA register sometime between 2005 and now. Without any information or evidence in relation to these sites in the current matter, it is difficult to say anything further.
In Banjo Wurrunmurra v Bernfried Gunter Wasse, the decision maker noted and relied upon the fact that each of the Bunuba and Gooniyandi contentions referenced the other for the purposes of the inquiry and provided that ‘locations and sites mentioned in evidence are of interest to both [Bunuba and Gooniyandi] native title parties’ (at [16]). In that previous matter there seemed to be a greater sense of interconnectedness between Bunuba and Gooniyandi People than in the current matter and, given the passage of time and the evidence before me, I am not prepared to infer that interconnectedness for the purpose of the current inquiry. I have considered that previous determination but note the various points of distinction as explained above.
On the basis of the evidence and contentions provided in the present matter, including the number and nature of sites in and around the Gooniyandi country, I conclude the portion of the Fitzroy River site within the licence (because of the connectedness to Saddlers Yard and the creation story), and Yawalja, are sites of particular significance noting they seem pivotal to a number of activities and sites in the south eastern portion of the licence.

Other sites described by the native title parties

Devonian Reef Sequence

The native title parties have provided detailed information about the Devonian Reef Sequence, including excerpts from the West Kimberley National Heritage Listing, which includes the Devonian Reef Sequence.
The native title parties’ contentions also describe the Devonian Reef Sequence in the broader context as follows (at 65):
The West Kimberley National Heritage Listing values for the Devonian Reef Sequence, the Fitzroy River and its tributaries, as well as the Fitzroy River AHA [Aboriginal Heritage Act] site, the AHA archaeological sites Margaret River 1 and 2 and the AHA mythological site Saddler’s Yard, when considered together, form an interrelated and connected landscape and area of particular significance informed by Aboriginal tradition, religion, community use and livelihood, and outstanding geological distinctiveness across the entirety of the relevant area.
Given the broad claims made about this area, I do not conclude the Reef Sequence is a site of particular significance, but again this description confirms the importance and interconnectedness of areas within the south- east of the proposed licence.

Burial areas

The native title parties have explained their ancestors are buried on the licence area. Ms Davis’ affidavit briefly describes special men’s places in the southern part of the E04/2218 area north of the Boab River, and the existence of burial bones in caves. This evidence was lead in the previous 2013 Tribunal decision (together with the affidavits from a Bunuba native title holder), and the decision maker concluded the evidence lacked ‘the precision required to enable the Tribunal to be satisfied that they are sites of particular significance, both in relation to their location and their relationship to the law and culture of the native title party’ (Butcher Cherel v Carnegie Exploration at [52]). For the current inquiry, I am also of the view that the evidence is lacking in precision.

Rock paintings

A brief description of rock paintings (in the southern part of the E04/2218 area north of the Boab River) is provided in the native title parties’ contentions and Ms Davis’ affidavit. Ms Davis mentions rock paintings within her explanation of men’s places, thus she was not able to provide further information about them. It may be this forms part of the area that Mr Holloway has described as Yawalja. Given the brevity of the rock painting description, I do not conclude that they are sites of particular significance on their own, although they may form part of Yawalja, which is a site of particular significance.

Special men’s ceremony and law story places

Ms Davis’ affidavit refers to special men’s ceremony and law story places within the southern part of the E04/2218 area north of the Boab River. Ms Davis says she cannot be more specific because it is special men’s law business. She also mentions a big rock as a special place with a man’s story; she describes the shape of the rock but is not more specific about the story because ‘it is a secret man’s story’ (at 32). Again, this may form part of the Yawalja area described by Mr Holloway, but on its own, given the lack of information about the ‘special men’s ceremony’ place in the affidavit, I could not conclude it or the ‘law story places’ as described by Ms Davis are sites of particular significance.

Sacred site

Ms Davis describes a sacred site on E04/2218 ‘on the other side of the island we use [sic] to camp on and get bush tucker from’, located on the edge of ‘the island’ on the east side of Margaret River’. She describes being able to see the limestone from Fossil Downs Road which goes across to Geike Gorge. This information has been helpful in terms of location, as it is clear the site is on the proposed licence, but there is little explanation of the significance of the site. I do not conclude it is a site of particular significance. I also note it appears this area may be within M04/283, given it is on the east side of Margaret River.

Special women’s places

The native title parties’ contend the special women’s places as described by Ms Davis are of particular significance. Ms Davis explains there ‘is another woman’s area around part of the Boab Creek. This is a very special area, I have told people not to go out here before’ (at 34). However, there is no further detail outlined. I do not conclude that this is a site of particular significance.

Gamanbunygayi (secret dreaming place)

In Mr Holloway’s affidavit, he described this area as follows:
Just north of Lanmaloowa, or Fossil Downs Homestead, is another important Dreaming place for jiwilyoogoo or ducks. This place is called Gamanybunygayi. Rocks there are those Dreamtime ducks. Gamanybunygayi is probably just inside the eastern boundary of the [E04/1417]. Mining people can’t drill or touch that place. There’s a secret place and a camping place there at Gamanbunygayi. My old people told me that when I was a young man.
The State has raised some location issues. They note that, beyond Mr Holloway’s above statement that the site is ‘probably just inside the eastern boundary’, there is no further description or marking on a map. The State also compares its own map with the map attached to Mr Holloway’s affidavit and asserts it is quite likely the site does not fall within the proposed licence. The native title parties contest this in their reply, asserting that the site is within the scope of this inquiry as the proposed licence includes the area subject to M04/283. I find the general description too broad to be sure of the location of the site. A place north of Fossil Downs puts the area outside the proposed licence. If it is within the eastern boundary, it is not clear if it is within M04/283. Whether or not it is within the proposed licence area, on the basis of the information provided which is quite general, I do not conclude this is a site of particular significance.

Dreamtime stories close to or crossing over into tenement area – Oscar Range

The native title parties’ have stated there are many dreamtime stories close to or crossing over into the proposed licence. Ms Davis explains that the Oscar Range within the E04/2218 area has ‘lots of dreamtime stories connected to it’ and she notes ‘there are many dreamtime stories around Fossil Downs...’ (at 33 and 35). On Tribunal mapping, Fossil Downs appears to be approximately two kilometres outside of the south eastern boundary of the proposed licence. However, the Oscar Range is in the north of the licence in Bunuba country. Based on the available information, I do not conclude the Oscar Range is a site of particular significance, although I do accept dreamtime stories cross into and are close to the licence as this is consistent with Mr Holloways’s evidence.

Goorroola Nyamani/large billabong

The native title parties describe this large billabong as situated between segments of the Fitzroy River and Margaret River, and used for camping, dancing, and ‘a “talk-talk place” where Gooniyandi and Bunuba people would meet one another’ (see for example, Mr Holloway’s affidavit at 16), as well as being a dreamtime place. On the evidence from Gooniyandi people, I am satisfied it is an important site for them, but there is insufficient information for me to conclude that, on its own, it is a site of particular significance for the purposes of s 237(b).

Ganayirri/Junction yard

This junction yard is described as a special place for members of the native title parties. In Mr Holloway’s affidavit he explains it is situated on a segment of the Margaret River, on the southern boundary of E04/1417. He says it is a special place for him and his community, and describes how he keeps and protects a goordoo/grindstone from the junction yard in order to ‘remember our old people who camped at Ganayirri’ (at 17). I note the Margaret River runs along and just outside of the southern boundary of the proposed licence, and part of the River runs through M04/283 which will not form part of the grant to Mr Baxter. I accept this is a site of particular significance to the native title parties for its connection to the old people camping and its connection to the Gooniyandi community. However, I am unable to say with any precision whether all or part of the area falls within the proposed licence, or the extent to which it falls within M04/283. As far as it did fall within M04/283, it would not be subject to the activities of Mr Baxter.
The State has made some collective assertions about many of the sites above, which may be summarised as follows:
·In relation to Goorroola Nyamani/large billabong, Ganayirri/Junction Yard and Gamanbunygayi/secret dreaming place above, the State has provided reasoning for its view that the evidence regarding special places or secret sites is insufficient to say they are sites of particular significance. I agree with the State in relation to Goorroola Nyamani and Gamanbunygayi, but for the reasons outlined at [78] I find Ganayirri is a site of particular significance.
·Regarding burial areas, rock paintings, special men’s ceremony and law story places, sacred sites, special women’s places and dreamtime stories, the State has challenged Ms Davis’ evidence, on the basis that it is the same affidavit used and found to be insufficient in the former Tribunal inquiry, Butcher Cherel v Carnegie Exploration. I have not found those sites to be of particular significance in this current matter.

Each decision before the Tribunal must be determined on its own merits, using the contentions which have been provided, together with any supporting evidence from the relevant native title parties. In the present matter, I have evidence before me which was not before me in Butcher Cherel v Carnegie Exploration. That is, Mr Holloway’s affidavit. The two affidavits in this present matter, together with the detailed contentions and reply, draw my attention to different arguments, and different areas and sites of particular significance to the native title parties.
I have applied a factual analysis on the material available to me in the current matter, and reached a conclusion that the following are sites of particular significance on the proposed exploration licence, as described in the s 29 notice:
·Site 12687 (Fitzroy River) within the proposed licence and Yawalja
·Ganayirri/Junction Yard
·Margaret River 1 and 2
·Saddler’s Yard
I address whether or not any of these sites will be the subject of interference in the next section of this decision.

(ii) Will the activities of Mr Baxter on the proposed licence be likely to interfere with any sites or areas of particular significance?

I have noted above how sites or areas within M04/283 are unlikely to be interfered with by the activities of Mr Baxter and, in particular, I note Margaret River 1 and 2 and Saddler’s Yard fall within that category. I have also made comments about the nature of the evidence provided, and so here I consider, in terms of interference, only those remaining sites which I have concluded are sites of particular significance to the native title parties on the proposed licence, and which do not fall within M04/283, that is, Site 12687 (Fitzroy River) and Yawalja. I also consider Ganayirri/Junction Yard, which is a site of particular significance, but for which there is uncertainty as to the extent the site falls within M04/283 or the proposed licence itself.
The native title parties have contended the grant of the licence is ‘highly likely to result in interference’ due to the significance of the areas or sites identified and the asserted need for consultation in accordance with the native title parties’ laws and traditions (at 71). I have had regard to the likely exploration activities and that the south east portion of the proposed licence appears to have a concentration of important sites, as well as the sites of particular significance to the native title parties.
The native title parties have referred to Andy Campbell v Murchison Metals, in which the Tribunal determined interference was constituted by people entering country without permission. The Tribunal concluded ([67]):
I do not accept the native title party’s contention that the fabric of the country on, and immediately adjacent to, the proposed licences is such that unauthorised entry will result in the kind of interference contemplated by s 237(b). However, I do accept that access to restricted areas without consultation with the native title party may result in interference.
On the facts of that case, the Tribunal identified that a restricted men’s area was particularly relevant. I must examine the information and evidence provided in the current inquiry.
I note Mr Holloway’s evidence details implications of strangers entering country, how proponents do not have knowledge of where the ‘secret places’ are and how they need to speak to traditional owners first. The native title parties also contend that only the native title parties’ members can readily identify significant sites and areas and that inadvertent interference is distinctly possible if the grantee party enters the area without guidance from the native title parties.
Mr Baxter contends he is fully aware of the requirements under the AHA and in particular Part 4 regarding obligations and protection of ‘Aboriginal Sacred Sites’. The native title parties raise various viewpoints about why the heritage protection regime is considered insufficient protection and they contend there is a lack of information about Mr Baxter’s intended activities. I have already assumed that Mr Baxter’s activities could include the full suite allowed under s 66 of the Mining Act.
Mr Baxter notes all rehabilitation requirements would be listed in the conditions attached to the licence document, but provides no further detail. I have considered the endorsements and conditions of grant that the State intends to attach to the grant and note, among other requirements, the approval of the Environmental Officer at the Department of Mines and Petroleum is required for the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costean.
The State contends Mr Baxter is willing to avoid disturbance to areas or sites of particular significance and that this is evident in how Mr Baxter is willing to enter into an RSHA. The State notes it is not clear which RSHA is being referred to by Mr Baxter but emphasises his willingness nonetheless. The State says it shall offer an RSHA condition, with the effect that, if either native title party makes a request within a certain time frame, an RSHA endorsed by certain peak industry groups will be executed in favour of one or both of the native title parties. The native title parties have not endorsed such an RSHA and there is no such agreement for the Kimberley region. The native title parties submit that little weight should be given to any condition on the grant requiring Mr Baxter to enter into an RSHA applicable to areas outside of the Kimberley. While the Tribunal has found the regime based on the AHA may be sufficient to ensure that any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Butcher Cherel v Faustus Nominees (at [81]-[91]). I give weight to the State’s regulatory regime and note I have taken the RSHA condition, in the context described above, into account.
The native title parties explain that they wish to enter into a heritage protection agreement with Mr Baxter, using a standard agreement developed by their representatives, which is endorsed by the native title parties and performs the same function as an RSHA. They explain they sent Mr Baxter a copy of that draft agreement but there was no engagement from Mr Baxter. They further contend Mr Baxter has ‘at no time made any serious attempt to consult with the [native title parties], to participate in cultural heritage surveys or provide information to the [native title parties] on how it intends to mitigate interference with, and risks to, significant sites and areas’ (at 78).
This has been a most difficult matter to weigh as the evidence provided, by both Mr Baxter and the native title parties lacked precision and detail. Nonetheless, I must make a decision on the likelihood of interference. On balance, I conclude the portion of Fitzroy River that falls within the proposed licence and Yawalja are sites of particular significance and form part of a wider area of sites, which are themselves important to the native title parties and do not fall into M04/283. I find that the portion of Fitzroy River which falls within the proposed licence may be readily identified and protected by the State’s heritage regime (as it is on the DAA register), therefore it is unlikely to be interfered with. However, Yawalja is not so readily identified by a person without the relevant knowledge, is interconnected with other areas and sites in the south east portion of the licence and is likely to be interfered with, inadvertently, by Mr Baxter in the course of the exploration activities described above. Without consultation with the native title parties and reference to their particular knowledge regarding the location of Yawalja, this site could be interfered with by exploration activities allowed under s 66 of the Mining Act. On this basis, I conclude the expedited procedure should not apply to the grant of the proposed licence.
In relation to Ganayirri/Junction Yard, I am uncertain as to its location (that is, whether it falls in the proposed licence), and I am uncertain the extent to which it is part of M04/283 (see [82] above). As such, while it is a site of particular significance, I cannot conclude it is likely to be interfered with by the activities of Mr Baxter.
In relation to Margaret River 1 and 2, and Saddler’s Yard, I conclude they are sites of particular significance but fall within the existing mining lease of M04/283 and so it is unlikely they would be interfered with by the activities of Mr Baxter.

(c) Will the grant be likely to involve major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned?

The native title parties provided no contentions in relation to this question posed by s 237(c) of the Act, and only brief assertions in each of the affidavits (mostly about the need to have a relationship with a proponent, matters of permission, and mentioning waterways but without specificity). As such, the other parties have not provided evidence or contentions on s 237(c). On the basis of the information I have before me, I do not conclude the grant of E04/2361 to Mr Baxter will include major disturbance or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

Determination

The determination of the Tribunal is that the act, namely the grant of E04/2361 to Callum Baxter, is not an act attracting the expedited procedure.

Ms H Shurven
Member
4 April 2016

APPENDIX A: Native Title Party Rights and Interests

Yarrangi Riwi Yoowarni Gooniyandi

The native title rights and interests of Yarrangi Riwi Yoowarni Gooniyandi include the right to:

(a)       access the application area;
(b)       travel over, and move about on, the application area;
(c)       camp on the application area;
(d)       erect shelters and other structures on the application area;
(e)       live on the application area;
(f)        hold meetings on the application area;
(g)       hunt on the application area;
(h)       fish on the application area;
(i)        forage on the application area;
(j) have access to and use and maintain the natural water resources of the application area including the beds and banks of watercourses;
(k) take, use and enjoy the natural resources of the application area (including food, medicinal and other plants for manufacturing purposes, wild tobacco, timber, stone, ochre and resin);

(l) trade in resources of the application area;
(m)share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purpose);
(n) use the application area for social, religious, cultural and spiritual customary and/or traditional purposes;

(o) conduct ceremony on the application area;
(p) participate in cultural activities on the application area such as the right to teach the physical and spiritual attributes of places and areas of importance on or in the land and waters in the application area;
(q) participate in cultural practices relating to birth and death, including the right to conduct burials in the application area;
(r) have access to, care for, maintain and protect places, sites and areas of importance under traditional laws, customs and practices in the application area;
(t) light fires for domestic purposes and customary practices but not for the clearance of vegetation;

(v) maintain and transmit cultural heritage of the application area;
(w) maintain and transmit cultural knowledge of the application area;
(z) cultivate and harvest native flora and fauna according to traditional laws and customs.

Gooniyandi Combined #2

The non-exclusive native title rights and interests of Gooniyandi Combined #2 include the right to:

(a) access and move freely through and within each part of the Determination Area referred to in Schedule Four*;
(b) live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose;
(c) (i) hunt, gather and fish for personal, domestic and non-commercial communal needs;
(ii) take flora and fauna;
(iii) take other natural resources of each part of the Determination Area referred to in Schedule Four* including soil, sand, clay, gravel, ochre, timber, resin and stone for personal, domestic and non-commercial communal needs;
(iv) share and exchange natural resources of each part of the Determination Area referred to in Schedule Four*including soil, sand, clay, gravel, ochre, timber, resin and stone for personal, domestic and non-commercial communal needs;
(v) light contained fires for domestic, cultural and spiritual purposes but not for the clearance of vegetation;
(vi) engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
(vii)      conduct ceremonies;
(viii)      conduct burials and burial rites;
(ix)      hold meetings;
(x) visit, maintain and protect from physical harm, places and sites of importance in each part of the Determination Area referred to in Schedule Four*; and
(xi) access and take water and its resources for personal, domestic or non-commercial communal purposes, and for the sake of clarity and the avoidance of doubt, this right does not include the right to take or use water lawfully captured or controlled by the holders of pastoral leases numbered 3114/1248 (Fossil Downs), 3114/1257 (Christmas Creek), 3114/1263 (Margaret River), 398/800 (Larrawa), 398/806 (Mt Pierre), 398/807 (Bohemia Downs), 398/808 (Louisa Downs) and 398/810 (Gogo Station).

* See Sharpe v Western Australia.