Harvey Murray on behalf of the Yilka Native Title Claimants/Eastern Goldfields Mining Company Pty Ltd
[2013] NNTTA 116
•14 August 2013
NATIONAL NATIVE TITLE TRIBUNAL
Harvey Murray on behalf of the Yilka Native Title Claimants/Eastern Goldfields Mining Company Pty Ltd, [2013] NNTTA 116 (14 August 2013)
Application No: WO2012/0601
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Harvey Murray on behalf of the Yilka Native Title Claimants (WC2008/05) (native title party)
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The State of Western Australia (Government party)
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Eastern Goldfields Mining Company Pty Ltd (grantee party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 14 August 2013
Catchwords: Native title – future acts – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – expedited procedure attracted
Legislation: Native Title Act 1993 (Cth), ss 29, 31, 146, 151, 237
Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA), s 66
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Cases:
Harvey Murray and Others on behalf of the Yilka Native Title Claimants/ Western Australia/ Sammy Resources Pty Ltd [2013] NNTTA 104, (‘Sammy Resources’)
Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150, ('Jango')
Josephine Forrest and Others on behalf of Yi-Martuwarra Ngurrara; Butcher Wise on behalf of Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (‘Brockman Exploration’)
Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)
Neowarra v State of Western Australia [2003] FCA 1402, ('Neowarra')
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431, ('Alyawarr')
Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025, ('Rubibi')
Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver’)
Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith’)
Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley’)
WF (Deceased) and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘Emergent’)
Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)
Representatives of the Ms Gemma Wheeler-Carver, Central Desert Native Title Services
native title party:
Representatives of the Ms Caitlin Martin, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines & Petroleum
Representatives of the Mr Greg Abbott, M & M Walter Consulting
grantee party:
REASONS FOR DETERMINATION
On 22 February 2012, the Government party, through the Department of Mines and Petroleum (‘DMP’), gave notice (‘the notice’) under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E38/2685 (‘the proposed licence’) to Eastern Goldfields Mining Company Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, the grant could be done without the normal negotiations required by s 31 of the Act).
The native title claim of the Yilka People (WC2008/05 - registered from 6 August 2009), (‘the native title party’), wholly overlaps the proposed licence.
According to the notice:
·the proposed licence is approximately 36.26 square kilometres in size,
·the proposed licence is located 70 kilometres east of Cosmo Newberry Mission, in the Shire of Laverton,
·the native title party had until 22 June 2012 to lodge an objection application against the expedited procedure statement for the proposed licence.
On 21 June 2012, an objection application was lodged with the Tribunal by Harvey Murray on behalf of the native title party.
The Tribunal issued directions to parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the closing date for lodgement of objections for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. Parties attempted to reach agreement between approximately September 2012 and January 2013, and the Tribunal varied directions at parties’ request on various occasions to allow for negotiations to progress.
On 19 December 2012, I was appointed by the then President, Mr Graeme Neate, as the Member for the purpose of conducting the inquiry if required. On 13 February 2013, the grantee party requested that the matter proceed to inquiry.
Directions were issued by the Tribunal, and in compliance with those:
·DMP provided evidence to the Tribunal and other parties on behalf of the Government party on 8 April 2013;
·the native title party provided a statement of contentions on 16 April 2013 together with affidavits of Mr Harvey Murray and Mr Sean Calderwood (senior anthropologist for the Central Desert Native Title Services), sworn 12 April 2013 and 9 April 2013 respectively (and attached respectively at Annexure A and B of this decision);
·the grantee party provided a statement of contentions on 23 April 2013;
·the State Solicitor’s Office (SSO) provided the Government party’s statement of contentions in response to the contentions of the native title party on 30 April 2013; and
·the native title party provided a statement in reply to the Government and grantee party submissions on 14 June 2013.
The native title party, in their contentions, state that they will only be seeking a determination in respect of s 237(a), and not in relation to s 237(b) or s 237(c) as originally foreshadowed in the objection. As such, this determination deals only with s 237(a) of the Act.
I considered this a matter which can be determined 'on the papers' as provided for in s 151 of the Act. No party objected to this course of action.
On 19 June 2013, the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination, and no comments were received in response.
Legal principles
Section 237(a) of the Act provides:
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned ...
In Walley, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).
In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa at [10]-[16].
In relation to determining s 237(a), I adopt the following principles from Tarlpa:
· History and interpretation of s 237(a) as amended (at [57]-[64]).
· The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’
· The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).
Evidence and information provided about the proposed act
Government party
The Government party has provided: a statement of contentions; tengraph plan with topographical detail, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence area; a report and plan from the Register of Aboriginal Sites maintained by the Department of Indigenous Affairs (DIA) (now known as the Department of Aboriginal Affairs); a copy of the tenement application; a copy of the proposed endorsements and conditions of the grant; the instrument of licence; and quick appraisal documents.
I note the underlying land tenure of the proposed licence to be a pastoral lease (3114/854 Yamarna) at 100 per cent, historical lease 395/410 at 94.8 per cent, and a wholly overlapping exploration permit PA67.
There are a number of dead tenements affected including nine explorations licences in operation between 1982 and 2011 and all now surrendered or expired which overlapped the proposed licence by between 2.8 per cent and 96.2 per cent. There were three mineral claims in operation between 1973 and 1974 and now all surrendered which overlapped the proposed licence by between 0.3 per cent and 3.0 per cent. There are also three previously granted prospecting licences granted in 1995 and surrendered in 2006, which encroached on the proposed tenement by between .2 per cent and 4.1 per cent.
The quick appraisal documents shows the services affected in relation to this proposed licence are several tracks.
The draft Endorsement and Conditions Extract for the proposed licence indicates that the grant of the proposed licence will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). The following additional conditions would also be imposed on the proposed licence:
5. The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone or in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, backhoes, drilling rigs; water carting equipment or other mechanised equipment.
6. The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of; -
· the grant of the licence; or
· registration of a transfer introducing a new Licensee;
advise, by registered post, the holder of any underlying pastoral or grazing lease details of the grant or transfer.
7. The rights of ingress to and egress from Miscellaneous Licences 38/180 and 38/210 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:
1. The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder; and
2. The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained.
Grantee party
Although the grantee party addresses all sub-sections of s 237 in its contentions, it notes that the native title party indicated in its earlier contentions that it would not pursue its objection in relation to s 237(b) and (c). Consequently, only the grantee party’s contentions in relation to s 237(a) are outlined below.
The grantee party state that it will not exclude any community activities upon the proposed licence unless during a particular activity it is considered temporarily unsafe for the conduct of community activities (at 1.1). It states that, should it be unsafe for the conduct of community activities, the grantee party will consult with the native title party to relieve apprehensions (at 1.2). It indicates that it will meet with the native title party prior to exploration activity that is likely to restrict the gathering of bush tucker, medicines and hunting of game or camping and will consult with the native title party to minimise any disturbance (at 1.3). The grantee party notes that the affidavits are not specific to the proposed licence area, and that the area of Mount Venn is four to five kilometres north west of the proposed licence area (at 1.5-1.6). It notes that it intends to access the proposed licence via existing roads and pastoral station tracks (at 1.8).
The grantee party has not provided detail about its proposed activities. The Government party states in its contentions (at 15) that it received a letter from the grantee party dated 20 October 2011 ‘indicating loosely what it intends to do on the proposed tenement area’, and that these activities ‘do not appear to encompass the exercise of the full suite of rights conferred by section 66 of the Mining Act’. As the native title party notes in their reply (at 2.1-2.3), the information to which the Government party refers has not been submitted in evidence by the Government party or grantee party as part of this inquiry. I will therefore assume that the grantee party will exercise the full suite of rights available to it under s 66 of the Mining Act 1978 (WA).
Native title party
The native title party has submitted essentially the same evidence in this inquiry as in the recent decision Sammy Resources.
In regard to s 237(a), the native title party contends the grant of the proposed licence is likely to interfere with the carrying on of the community and social activities of the native title party in relation to the land concerned because:
·the register of native title claims recognises the Yilka People’s ‘right of possession, occupation, use and enjoyment to the exclusion of all others’ in some areas and non exclusive rights and interests where partial extinguishment has occurred (such as on a pastoral lease such as Yamarna) (at 1.2);
·the Native Title Act should be beneficially construed (at 2.2 – 2.3);
·‘evidence of regular travelling, camping and hunting for various traditional activities is sufficient to sustain an objection under section 237(a)’ (at 3.9) and they cite a number of decisions in support of this;
·off-site activities can be taken into account in consideration of interference with the carrying on of community or social activities if there is a clear nexus between those activities and the issue being considered (at 3.10); and
· there is a community in the area and point to the Yilka registered claim, however, Tribunal mapping does not identify any particular community specifically on or near the proposed license.
Mr Murray states that he is a traditional owner for the area and is an applicant for the native title party claim. As such, I accept Mr Murray has the authority to speak for this area on behalf of the native title party. Mr. Murray’s evidence has not been challenged and I accept it. The native title party’s contentions assert, based on Mr Murray’s affidavit, that:
·There are several old camping areas ‘where ancestors of current registered native title claimants lived and camped’ (at 3.12(a) and Mr Murray’s affidavit at 9-10)
·There are Wiltjas [traditional shelters] from these camps in the vicinity of the tenement (at 3.12(b) and Mr Murray’s affidavit at 11)
·The area is considered to be the Ngurra, or the country, of Mr. Murray (at 3.12(c) and Mr Murray’s affidavit at 11)
·The native title claim group travel frequently to the area of the proposed license to conduct community and social activities (at 3.13(a) and Mr Murray’s affidavit at 7-9 and 13)
·There are regular hunting grounds for bush turkey, kangaroo, goanna and emu (at 3.13(b) and Mr Murray’s affidavit at 7)
·There are regular camping activities (at 3.13(c) and Mr Murray’s affidavit at 9)
·There are permanent water sources to the south of the proposed license which are important and which must be protected (at 3.13(d) and Mr Murray’s affidavit at 34)
·There is intergenerational transfer of knowledge between members of the registered native title group (at 3.13(e), Mr Murray’s affidavit at 10-11, 21 and 29, and Mr Calderwood’s affidavit at 9)
·The area is visited regularly and traditional burning occurs (at 3.13(f), Mr Murray’s affidavit at 15, and Mr Calderwood’s affidavit at 9)
·The registered native title group ‘act, according to the traditional customs, to fulfil their responsibility to look after and protect their Ngurra’ (at 3.13(g), Mr Murray’s affidavit at 25-28, and Mr Calderwood’s affidavit at 13-15)
·Interference will occur from exploration and drilling activities (at 3.14(a) and Mr Murray’s affidavit at 12, 14 and 35)
·Meaningful consultation should occur between the native title party and grantee party ‘to ensure that community and social activities are not likely to be interfered with’ (at 3.14(b), Mr Murray’s affidavit at 18-19, 30-31, Mr Calderwood’s affidavit at 10-12)
·The presence of excavation and drilling activities ‘will interfere with the ability of the members of the native title party to fulfil their obligation to look after the area’ (at 3.14(c) and Mr Murray’s affidavit at 16-18, 20, 24, 31 and 34-35)
Parts of Mr Murray’s affidavit (at 6) refer to roads that go through the tenement which he states aren’t on 'public maps' and that the community travel on these roads very frequently, including for hunting kangaroo, emu, goanna and turkey (at 7). I do note the Tribunal map and the native title map indicate several roads running through the proposed licence, and accept there may be others. He talks about spinifex to the East of Thatcher’s Soak within the tenement, which is used for camping, and a road that travels from Thatcher’s soak to Yamarna Homestead, which appears on Tribunal mapping, and that people travel along that road and camp near it (at 9).
He talks about wiltjas (at 10) at the old camping grounds, where he has been going there since he was a baby, travelling and camping. Exchanges of cultural information occur in and around the proposed license (at 11), and hunting through that area nearly every week and near the proposed licence nearly every weekend (at 13). He talks about going near the tenement and burning that country which is important for new growth for the meat and hunting (at 15). As the proposed licence is part of his ngurra he is responsible for making decisions about it (at 18). He talks about a track that has been interfered with near the proposed licence but there is no information to suggest the grantee party was involved (at 25-27).
Mr Murray states ‘I’ve never heard of any Aboriginal person being told by the pastoralist out there that they can’t hunt or camp or burn country out there near the Tenement. We just carry on normally in that area; it’s all part of our country, our ngurra. I’ve heard about them chasing white prospectors off the pastoral lease though; we’d do the same thing’ (at 33). This seems to indicate that interference from pastoral activity is minimal or nonexistent. He also talks about an important water source ‘just outside the west of the Tenement, but throughout the south of the Tenement you can dig water up from about one metre under the ground. This is important to people to be able to access and we have to look after this area to make sure that, if people need water, they can get to it’ (at 34).
In his affidavit, Mr Calderwood states that he holds an honours degree majoring in anthropology and he has been employed at Central Desert Native Title Services (CDNTS) since March 2008. He states he is currently their Senior Anthropologist. He also outlines his previous employment and experience working in various regions in Western Australia and Australia.
The Tribunal has noted on numerous occasions that, unlike a Court, it is not bound by the rules of evidence. However, the Federal Court’s observations about the role anthropological evidence plays in native title cases are of assistance in this matter, and supports the Tribunal’s acceptance of it. The Federal Court has found that expert anthropological evidence of traditional laws and customs and connection to country based on field work, which accords with the member of the native title claim group’s evidence, is probative (see Neowarra at [388]; Rubibi at [263]; Jango at [291] to [292]). An anthropologist such as Mr Calderwood may observe and record matters relevant to both the social organisation of a native title claim group and the nature and content of their traditional laws and traditional customs. There may also be circumstances in which an anthropologist may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear (see Alyawarr at [89]). The anthropologist cannot provide the primary evidence, only help elucidate the evidence of the aboriginal witnesses: see Emergent at [44] to [46].
Mr Calderwood’s evidence utilises his expert’s experience to clarify the evidence of Mr Murray. Mr Calderwood’s evidence has not been challenged. Applying the principles outlined in this decision at [30]-[31], I accept his sworn evidence. Mr Calderwood states that he has experience working with native title groups, including the Yilka native title claimants. He swears to activities of the claimants under their traditional laws and customs (at 9) including:
·Checking and cleaning rock holes and soaks
·Intergenerational transfer of knowledge
·Burning country in a traditional way
·Cultural site maintenance
·Monitoring access to country and ensuring others look after country
He describes the process by which the Yilka People fulfill responsibilities for looking after country (at 10 and 11). He refers to concerns regarding a number of tracks south of the tenement which appears to suggest that there had been unauthorised access to an important men’s place, however, no link is made between such access and any grantee party activities.
Considering the Evidence in context of s 237a of the Act
The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).
The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver at [29]-[30], Member Sosso (whose approach I adopt) outlined that:
The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.
The grantee party’s intended activities and intentions are outlined at [22] above.
The Government party submits there is no evidence to suggest the grantee party will not act in accordance with its obligations under the AHA (at 17) and that it has attempted to negotiate an RSHA-type agreement (at 20, and noting also the native title party’s reply at 4.1-4.2). The Government party states that Mr Murray’s concerns regarding interference with community or social activities ‘are speculative and appear to arise from misapprehensions about what is proposed by the Grantee Party’ (at 30). As noted by the Government party (at 51(e), (f) and (g)), the low-scale exploration activities planned by the grantee party do not appear likely to have any real disruptive effect upon the ability of the native title party to travel into or across the area of the proposed tenement or to camp, hunt or conduct burn offs within the proposed tenement area, particularly given the intentions of the grantee party to conduct its activities in consultation with the native title party and with cultural sensitivity.
The Government party (at 28 and 49) asserts that there is no clear evidence that members of the native title party camp within the area of the proposed tenement, with reference, for example, to paragraphs 8-10 of Mr Murray’s affidavit. The Government party also contends that the intergenerational passage of traditional knowledge between members of the native title party, or the responsibility to look after and protect country, are not activities to which s 237(a) applies. I accept that the evidence of Mr Murray is not entirely clear, but I am prepared to accept that camping takes place from time to time. I do not accept that the intergenerational passage of traditional knowledge or the protection of country are not activities to which s 237 (a) applies: see Brockman Exploration at [44]. That question will depend on the evidence in any particular case. In this matter the evidence of Mr Murray at 10-11 and 25-28 of his affidavit and of Mr Calderwood at 9 and 13-15 of his affidavit is sufficient to persuade me that such activities take place on the area of the proposed tenement. The question then becomes whether it is likely or not that the activities of the grantee party will directly interfere with their exercise.
I find that the native title party hunts, visits, camps and transmits traditional knowledge on the area of the proposed tenement or within its vicinity. They also seek, in accordance with their traditional responsibilities, to protect it.
As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Asia Investments Corporation at [14]). In this matter, the native title party makes general statements about the location and occurrence of social and community activities such as '( they occur) on our country', or 'all through the area', or 'in and around the tenement'. Such broad statements are not sufficient to enable me to conclude that social or community activities that occur on the area of the proposed tenement occur with a regularity that is likely to be interfered with by activities of the grantee party.
In drawing my conclusions in this matter I have had regard to the following:
That while I accept social and community activities are carried out by the native title party throughout their claim area, the evidence in relation to this particular area is general;
That endorsements and conditions will be applied to the proposed licence which will minimise interference with those activities;
Given that the claim area is approximately 12,263 square kilometres, the grantee party’s proposed activities within the proposed tenement given that they will be limited in duration and seasonal are not likely to directly interfere with the exercise of those activities in any significant manner, even should that exploration works be to the full extent allowed under the grant;
While there is no specific evidence of the degree of interference of past activities (although I note the native title party’s contentions in this regard, in its reply at 3.1-3.2), the Tribunal is entitled, as part of the overall context, to have regard to the fact that the grant of previous exploration permits will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]).
There are no Aboriginal communities within the area of the proposed licence. The native title party in their reply state that the Cosmo Newberry community is within the relevant area and that many Yilka claimants live there (at 3.5). However, the map indicates that Cosmo Newberry is 45 kilometres to the west of the area of the proposed tenement area .
In the circumstances, taking into account the evidence available, I conclude that there is unlikely to be interference of the kind contemplated by s 237(a) of the Act in this matter.
Determination
The determination of the Tribunal is that the act, namely the grant of exploration licence E38/2685 to Eastern Goldfields Mining Company Pty Ltd, is an act attracting the expedited procedure.
Daniel O’Dea
Member
14 August 2013
ANNEXURE A
AFFIDAVIT OF HARVEY MURRAY
I am a traditional owner for the country covered by tenement E38/2685 (the Tenement). I am the Applicant for, and a member of, the Yilka native title claim group.
I am the Chairman of the Cosmo Newberry Community.
I make this affidavit in support of the Statement of Contentions of the Native Title Party in relation to the Tenement.
The information in this affidavit is all things I know to be true.
I have been shown an A0-sized topographical map of the Tenement by a staff member of Central Desert Native Title Services (Central Desert). The Tenement falls entirely within the Yilka native title claim area and is partially in the Yamarna Pastoral Lease and partially within the Cosmo Newberry Reserve.
There are several roads that go through the tenement that aren’t marked on public maps. People from the community and other traditional owners including my family and me use these roads very frequently.
I travel on those roads to checks for tracks to make sure that no one has been out there that we don’t know about, and at the same time we do hunting. There is marlu, kangaroo, karlaya, emu; goanna; and nganurti, turkey, out there.
There’s a windmill over at Mt Venn, which is about 3-4km southwest of the Tenement. We go out that way every few weeks, we go out and check the windmills. We also go out on weekends, and during the week when we’re working. We go hunting while we’re out there too.
People still go camping out there. All the old people used to camp there a lot, near Thatcher’s Soak and Mt. Venn. There’s a lot of spinifex to the east of Thatcher’s Soak, in part of the Tenement, so they used to camp there. There’s a road that travels from Thatcher’s Soak to Yamarna Homestead, through the south of the Tenement. People travel along that road and camp near it.
There’s still old wiltjas along there, from when the old people used to camp there in the winter-time. The old wiltjas are important to people now, that’s where our old people have been living, those old people who’ve passed on, and to us that’s very important. That place is where they’ve been living, those old ones, even some of those old ones took their kids out there, like my mother, Frances Murray, to camp and live. We gotta look after all that, because that’s important, what they showed us. My mother and some of those other old people took me and others out there to show us those wiltjas, I been going out there since I was a little baby, little boy, travelling around that area, camping out in the bush, in those days you can’t come back home, you gotta camp in the bush on holiday.
The old people told us we had to look after that area, that it’s our ngurra, all our country, and that we have to look after our country. They told us that when we grew up we’d have to take responsibility for that area in and around the Tenement and look after it. Now we’re all getting old, we tell our kids and grandchildren the same thing, and all our extended families, all the traditional owners for that country.
If a company started to do work out in that area, I would be worried that they would damage the country and make it so that the animals wouldn’t come there any more. The area around the Tenement is a good hunting area, and we go out there often to get meat.
We can hunt all through that area in and near the Tenement, as long as we don’t go to any areas we’re not allowed in. I think about 60% or 70% of our kuka, meat, the meat for people who live in the Cosmo community, comes from the bush on our country. I go nearly every weekend to get meat and I bring back meat for other people too.
If the country isn’t healthy and looked after, the kangaroo or other animals will be too skinny. If the kangaroo is skinny the taste is not the same and it comes out tough and dry. I would be worried that, if a company was to do work in the area of the Tenement, that the country might stop being healthy.
When we go out near the Tenement, we burn that country, that creates new growth for our meat, our wildlife, for us to hunt, and that’s why it’s so important that we have to make sure, that if a company wants to go there, they do as least damage as possible, so that they leave the country as it is. We’ve been caring for it for hundreds of years. We’re responsible for it, we gotta keep it healthy, we gotta pass it on to younger generations, I gotta pass it on to my kids and grandkids, like generations before me did. We received country, and the responsibility to look after it, we must hand it on the best we can to our generations coming behind us.
If we don’t, it reflects really badly on us, we get criticism, and that will be a black mark against our name until it’s fixed up, until the country is healthy again. The people, the tribes that surround, would be criticising us. Even though we’re the owners of this country, the traditional owners, we still have to be accountable to the people around us. You can’t just damage things or foul country, without making sure you do your best to try and protect it, because other people are watching you.
I’ve heard of people getting in trouble for these sort of things, where they foul country or do damage; people die mysteriously, and get sick, and all this sort of thing.
I know the country where the Tenement is, it is part of my ngurra, the country I have to look after with other traditional owners. When there are important decisions to be made that affect our country, we all have to talk about it and make a decision. We have to make sure that everyone is agreed that something is okay. If a company wants to do something on country, we would need to meet together and let them know if it was okay. We have to make sure that our culture and law is respected, as well as white men’s law. This is an important job and the traditional owners spend a lot of time doing this.
When a mining company wants to come into our country, the Yilka claimants have a big meeting to talk about the mining company and make an agreement with them about how they should be looking after the land. These agreements allow for the Yilka claimants to check up on the mining company to make sure that they are doing the right thing on country, and not causing problems with our country.
If I let someone else do the wrong thing on my country, I can get in trouble too. It’s really important that anyone who don’t know the country, they go out there with someone who does. That’s just the way under our law and culture; you don’t run around anywhere without having the knowledge, you take somebody who knows and they will tell you. This is the same for white fellas of Aboriginal people. It’s probably more important for white fellas, because he don’t understand Aboriginal law and culture.
I was taught to avoid certain places by the old people, who’ve mostly passed away now. It’s something the old people tell you when you’re growing up, from a child, all your life you learn about this sort of thing. It’s something you learn from a child, right through, not just when you’re an adult. They warn you, so you can’t get in trouble. I do the same thing for my kids and grandkids. I tell them about country, and teach them to avoid places like those out in and near the Tenement. I pass it on to my sons and daughter, and my grandchildren; it keeps on going.
We are taught that, if we go to the wrong places, or damage or foul country, we will get punished, depends on how far you go. Maybe also your family will get punished, your father or mother or somebody will get punished. If you’ve really done a bad thing, you can be killed. It depends on how far you’ve done wrong.
If I went to the wrong place, I’d get in trouble, and my extended families would get in trouble too, because they never told me not to do it, or never stopped me. The people with the cultural authority for the place would get in trouble too, because the more senior you get, the more responsibility you have for those men’s places and for making sure people don’t go there when they’re not supposed to. They carry that burden.
If a mining company came out and drilled in the wrong spot, in one of those men’s areas or a good hunting or water area – if we didn’t do our job and protect it, we would all get in trouble. The people who look after country, the people who have done work to protect that area, they’d get in trouble for not looking after it properly, for not stopping that mining company from going into the wrong spot and doing damage to country. They’d even get in trouble for not stopping that mining company getting that mining tenement in the first place.
Last year, I noticed a track that led into an important men’s area near the Tenement. I was very worried about this track and talked to the other traditional owners about it. We were all concerned that someone had been near that area without the right people talking to them, or even knowing about it. At a meeting, we asked Central Desert to arrange for us to go out and check the tracks and make sure that no one had been out there and done the wrong thing.
I was very concerned about the track, because people expect me to protect that country, and I could get in big trouble if I haven’t looked after it properly.
When we went out to check on the track, there were many more tracks through that area, and all the wati with us were really worried that this meant people had been in that men’s area when they weren’t supposed to be. We were all very worried that something bad would happen to us because someone had been in there.
That whole experience was very upsetting for me, as I was worried that I hadn’t been able to protect that country by making sure no one had gone in to an area they shouldn’t, and possibly damaging it.
I’ve taken my kids and grandkids out near the Tenement, as well as their brothers and sisters, Aboriginal way. When I take them out there, I make sure that they know where they can or can’t go. I make sure that they know if they go to the wrong place, or damage country (or let someone else do it) they’ll get in trouble or punished if they do, of it they let anyone else go there.
When strangers, or maliki, pass through our country, that person should ask me or other traditional owners if it’s okay to travel through. They can’t come and roam around this country, they got to come and ask permission. This is the same for white fella maliki or Aboriginal maliki. If it’s a maliki from nearby, or someone who’s just travelling that main Great Central Road, they would still let me or a traditional owner know they’re travelling through and where they’ve been or are going. A lot of people from, say, Warburton, come through this area, and some of them know the place so know where they can and can’t go. They will still let you know where they’ve been, acknowledging the traditional owners.
It’s very important in our culture that visitors talk to the traditional owners before they go out on their country; this it to make sure that the traditional owners know what is happening on their country, and can protect their country, including by ensuring people don’t go to the wrong areas. As I’ve said before, the visitor would get punished for this, and so would the traditional owners who didn’t stop them.
Often, if someone is visiting and doesn’t know the country, they would take someone out with them, a traditional owner, someone who knows the country. This is to make sure they don’t go to the wrong place or do the wrong thing. That person can also show them where the good places to hunt are.
I’ve never heard of any Aboriginal person being told by the pastoralist out there that they can’t hunt or camp or burn country out there near the Tenement. We just carry on normally in that area; it’s all part of our country, our ngurra. I’ve heard about them chasing white prospectors off the pastoral lease though; we’d do the same thing.
There is an important water source just outside the west of the Tenement, but throughout the south of the Tenement, you can dig water up from about one metre under the ground. This is important for people to be able to access and we have to look after this area to make sure that, if people need water, they can get to it.
If a company wants to do work in the area of the Tenement, it would be important for us to check and make sure that what they wanted to do was okay. I would be worried otherwise that they might do damage to areas that are good feeding country for animals and watering places. After rain, there are places out there that hold water for a long time, it’s natural water places that animals access and feed. We don’t want any of them damaged. These were all there long before white men, these places existed for animals and our people to access and use. There’s Thatcher’s Soak just outside the Tenement, but there are other places for water out there that aren’t named or on white fellas’ maps, that only we know about.
ANNEXURE B
AFFIDAVIT OF SEAN MARK CALDERWOOD
1. I am a Senior Anthropologist with Central Desert Native Title Services (Central Desert).
2. I graduated with an Honours degree majoring in Anthropology from La Trobe University in Melbourne, Victoria in 1995.
3. I have worked as an anthropologist with Central Desert since 31 March 2008 and previously worked in the Ngaanyatjarra Council Native Title Unit (Native Title Unit) for 4 years from 1999 to 2002. During the course of my employment with the Native Title Unit I worked in the Wiluna, Birriliburu and Martu regions of the Western Desert Cultural Bloc and was employed by Ngaanyatjarra Council as an Anthropologist/Mining Officer in the Warburton, Baker Lake, Irruntjyu Papulankatja, Cosmo Newberry, Kiwirrkurra, Ngawarr, Ngankali and Tjirrkarli Kanpa claims, all within the Western Desert Cultural Bloc. My previous employment also includes Land Tenure Officer/Anthropologist with the Central Land Council (1997-98) where I worked primarily in the Tanami Desert Region. Prior to this I worked as a consultant to various organisations throughout Australia in relation to native title and mining issues.
4. As a result of the work outlined above, I have considerable experience working with people of the Western Desert Cultural Bloc, which includes the Yilka native title claimants. Specifically, as part of my work at Central Desert and also previously with the Native Title Unit. I undertake claim research, attend claim meetings and undertake heritage surveys with the Yilka native title claimants
5. Except where otherwise stated, the facts herein deposed are within my own knowledge or have come to my knowledge through access to information which I believe to be true and which is identified in this affidavit.
6. I make this affidavit in support of the Statement of Contentions of the Native Title Party in relation to the tenement E38/2685 (Tenement).
7. As part of my work at Central Desert and also previously with the Native Title Unit, I spend and have spent considerable time with members of the Yilka native title claim group and have spoken to them at length about their native title rights in both formal and informal settings.
8. Through these discussions, I understand that the Yilka native title claimants undertaken a variety of activities under their traditional laws and customs. These activities are commonly referred to as fulfilling their responsibility to ‘look after’ and protect country.
9. ‘Looking after’ or protecting country may manifest in:
a. visiting rockholes or soaks to check and clean them;
b. intergenerational transfer of knowledge about flora, fauna and maintenance of country;
c. transfer of knowledge about traditional law and custom;
d. burning country in a traditional way;
e. cultural site maintenance;
f. undertaking environmental monitoring and rehabilitation work;
g. monitoring access to country;
h. ensuring visitors, including Aboriginal ‘strangers’, mining companies and tourists, look after the country.
10. The responsibility for monitoring access to country and ensuring visitors look after country is the responsibility of each member of the Yilka native title claim group. This responsibility is taken very seriously by the Yilka native title claimants and they:
a. continually talk to visitors to establish their intentions and objectives in relation to the country;
b. discuss these with other members of the Yilka native title claim group; and
c. confirm that the visitor both understands how to look after country correctly, and will look after country in that way.
11. Where this process does not wholly fulfil their responsibility, for example when the visitor is a mining or exploration company, the members of the Yilka native title claim group will:
a. hold a meeting to discuss the situation;
b. talk to the visitor about the country and the right way to look after the country;
c. make a decision together to enter into an agreement with the visitor that ensure, if necessary, that the visitor understands the right way to look after country, and does so;
d. check up on the visitor to make sure they are looking after country properly.
12. If this process is not undertaken, it can cause distress and worry for the people who have responsibility to look after the country. I know this from observing the practices of the Yilka native title claimants in the claim area and from discussion with the Yilka native title claimants.
13. As an example of the distress that can be caused by the process not being undertaken, last year I was advised of concerns raised by Harvey Murray, a member of the Yilka native title claim group, in relation to a track that was visible in an “exclusion zone” south of the Tenement. He expressed concern that these tracks could indicate that there had been unauthorised access to an important men’s place and that damage could have occurred to the site or tjukurrpa associated with the site and indicated that a review of the area should be undertaken to establish whether country had been looked after.
14. On or about 30 August 2012, I attended an on-country trip with a group of men to assess the track. When we arrived at the location, there were several other tracks in the same area. It was clear that the men were extremely concerned about the access, and especially that this access had occurred without their knowledge and without their having had the opportunity to ensure that the ‘visitor’ had an understanding of the proper way to look after country.
15. The men were anxious about the tracks and were keen to know when the tracks had been created, who by, and why they hadn’t been consulted before the access to the area had occurred. They indicated to me that they were unhappy that the access and creation of access tracks had happened behind their backs.
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