Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Goldphyre WA Pty Ltd

[2013] NNTTA 101

NATIONAL NATIVE TITLE TRIBUNAL

Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Goldphyre WA Pty Ltd, [2013] NNTTA 101 (30 July 2013)

Application No:               WO2011/1381

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 (WC2008/0005) (native title party)

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The State of Western Australia (Government party)

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Goldphyre WA Pty Ltd (grantee party)

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

Tribunal:  Helen Shurven, Member

Place:  Perth
Date:  30 July 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 – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure not attracted

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 109, 146, 151(2), 162 237

Aboriginal Heritage Act 1972 (WA), s 18

Mining Act 1978 (WA), s 66

Cases:Cheinmora v Striker Resources and Ors NL [1996] 1147 FCA 1, (‘Striker Resources’)

Daisy Lungunan and Others on behalf of Nyikina and Mangala/Western Australia/Geotech International Pty Ltd, [2012] NNTTA 24, (‘Geotech International’)

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa’)

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576, ('Oriole')

Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Maitland Parker’)

Mark Lockyer & Ors (Kuruma Marthudunera)/Western Australia/Mineralogy Pty Ltd, [2006] NNTTA 133, (‘Mineralogy’)

Neowarra v State of Western Australia [2003] FCA 1402 at [388], ('Neowarra')

Parker v Western Australia and Others (2008) 167 FCR 340, ('Parker')

Raymond Ashwin and Others on behalf of Wutha/Western Australia/Kubwa Iron Ore Holdings Pty Ltd, [2013] NNTTA 44, ('Raymond Ashwin')

Ronald Crowe & Ors (Gnulli)/Charlie Lapthorne & Ors (Thudgari People)/Western Australia/Zhukov Pervan [2008] NNTTA 71, (‘Ronald Crowe’)

Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas’)

Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025, ('Rubibi')

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’)

Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Asia Investment Corporation’)

Representative of the      Ms Gemma Wheeler-Carver, Central Desert Native Title Services

native title party

Representatives of the     Mr Domhnall McCloskey, State Solicitor’s Office

Government party          Ms Bethany Conway, Department of Mines and Petroleum

Representative of the      Mr Chris Clegg, Statewide Tenement and Advisory Services

grantee party                   Pty Ltd

REASONS FOR DETERMINATION

1. 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 E38/2602 (‘the proposed licence’) to Goldphyre WA Pty Ltd (‘the grantee party’). The notification date was specified as 24 August, 2011. 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).

2. According to the notice:

   ·the proposed licence is 12.21 square kilometres in size;

   ·the proposed licence is located 82 kilometres east of Cosmo Newberry Mission, in the Laverton Shire;

   ·the proposed licence, if granted, authorises the applicant to explore for minerals for a term of 5 years from the date of the grant; and

   ·the native title party had until 24 December, 2011 to lodge an objection application against the expedited procedure statement. 

1. The native title claim of the Yilka Native Title Claimants (WC2008/005, registered from 6 August, 2009), (‘the native title party’), wholly overlaps the proposed licence, and did so on the 4 month closing day.

2. On 16 December, 2011, an objection application was lodged with the Tribunal by Harvey Murray on behalf of the native title party. As such, the objection application was lodged within the 4 month time frame as set out in s 32 (4) of the Act.

3. In accordance with standard practice, the Tribunal issued Directions to the parties to provide contentions and evidence for an inquiry to determine whether or not the expedited procedure is attracted.  These Directions allowed 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, and the Tribunal varied directions at parties’ request on various occasions to allow for negotiations to progress.

4. On 19 December, 2012, I was appointed by the then President, Graeme Neate, as the Member for the purpose of conducting the inquiry.  On 16 January, 2013 Directions were set on the basis that if parties could not reach agreement, the matter would proceed to inquiry.   

5. In compliance with Directions the following materials were received:

(a)On 21 January, 2013, DMP provided to the Tribunal and other parties the Government party’s preliminary submissions, which comprised:

i.search results of the Aboriginal Sites Database, Aboriginal Heritage Inquiry System, conducted on the website of the Department of Indigenous Affairs (‘DIA’);

ii.a Tengraph Quick Appraisal showing current and historical tenure underlying the proposed licence;

iii.a Tengraph map of the proposed licence and surrounding area, showing landmarks and other mining tenure;

iv.an instrument of licence and schedules;

v.a copy of the application for the proposed licence; and

vi.a draft Tenement Endorsement and Conditions Extract.

(b)On 16 April, 2013 the native title party provided to the Tribunal and other parties:

i.statement of contentions;

ii.a copy of a media statement entitled ‘Minister tells mining companies to clean up their act’;

iii.a copy of the Department of Mines and Petroleum ‘Enforcement and prosecution policy’ dated August 2010;

iv.a copy of the Western Australia Auditor General’s Report, ‘Ensuring Compliance with Conditions on Mining’ dated September 2011;

v.the affidavit of Mr Robin Jeffrey Smythe, affirmed 12 April 2013;

vi.the affidavit of Mr Harvey Murray, sworn 12 April 2013; and

vii.the affidavit of Mr Sean Mark Calderwood, affirmed 9 April 2013.

(c)On 2 May, 2013 the grantee party provided to the Tribunal and other parties:

i.statement of contentions;

ii.the affidavit of Mr Christopher Clegg - the grantee party representative, sworn on 30 April, 2013, together with annexures:

·   “A1” being a covering email relating to Landgate searches of White Cliffs – Yamarna Road (9463);

·   “A2” being a road card with details of road 9463 (resumed);

·   “A3” being a WA Government Gazette dated April 12, 1935 declaring, among other matters, resumption of road 9463;

·   “A4” being a WA Government Gazette dated April 18, 1935 stating that road 9463 is to be opened;

·   “A5” being an email from Mr Clegg to Landgate enquiring as to whether White Cliffs – Yamarna Road is a dedicated public road and as to Gazettal details;

·   “A6” being a map showing White Cliffs – Yamarna Road;

·   “B” being a Quick Appraisal from DMP;

·   “C” being search results from the Aboriginal Heritage Inquiry System;

·   “D” being a copy of the proposed exploration work program for the proposed licence;

·   “E” being a copy of the grantee party’s Indigenous Peoples and Community Relations Policy;

·   “F” being a copy of the grantee party’s Environmental Policy;

·   “G1” being various emails between representatives of the grantee party, the native title party and the Tribunal, the last email from the grantee party attaching a draft proposed Heritage Protection Agreement; and

·   “G2” being a copy of the (proposed and unsigned) Exploration and Prospecting Deed of Agreement between the Yilka Native Title Claim Group and Goldphyre WA Pty Ltd.

(d)On 3 May, 2013, the State Solicitors Office provided to the Tribunal and other parties:

i.the Government party’s statement of contentions in response to the contentions of the native title party and attachments;

ii.search results from the Aboriginal Heritage Inquiry System; and

iii.the Draft Tenement Endorsement and Conditions Extract for the proposed licence.

1. At the listing hearing on 16 May, 2013, the native title party requested an opportunity to reply to the submissions of the Government party and grantee party. I made further Directions that the native title party be at liberty to reply to the Government party and grantee party contentions by midday on 7 June 2013, and the Government party and grantee party be at liberty to respond to the native title party’s reply by midday on 17 June 2013.   The grantee party did not submit any further material, but the Government party and the native title party did file documents in accordance with these further Directions.

2. On 4 June, 2013, the Tribunal sent parties a map generated by the Tribunal’s Geospatial Services showing the proposed licence and other features and landmarks relevant to this matter. The Tribunal explained that it intended to rely on the map in the decision making process for this matter, and invited comments on reliance on the map by close of business on 7 June 2013. No party raised any opposition to the Tribunal having regard to this map.

3. On 7 June 2013, the native title party submitted a copy of the map provided to the deponents of the affidavits accompanying the native title party’s contentions of 16 April 2013, and asked that the Tribunal have regard to the map in making its decision. On 13 June 2013, the Tribunal gave notice to parties that it would have regard to the map provided by the native title party in making its decision.  No party filed any objection to that approach.

4. On 16 July 2013, in response to a Tribunal query in relation to discrepancies between the Quick Appraisal supplied by DMP (dated 21 January 2013) and the Quick Appraisal supplied by the grantee party (dated 30 April 2013), DMP provided an updated Quick Appraisal.  It is this latest Quick Appraisal, also dated 16 July 2013, which I have taken into account in making my decision in this matter.  

5. All parties have agreed that this matter can be determined ‘on the papers’ (that is, without holding a further hearing). I am satisfied that the objection can be adequately determined in this way (s 151(2) of the Act).

6. I accept that all affidavit material provided has been sworn or affirmed by persons who have authority to represent the respective parties.  In relation to Mr Calderwood's anthropological evidence, the Tribunal has noted on numerous occasions the Federal Court’s observations about the role anthropological evidence plays in native title cases in being  of assistance, and supporting the Tribunal’s acceptance of it.  The Federal Court has found that expert anthropological evidence, which accords with the member of the native title claim group’s evidence, is probative (see Neowarra at [388] and Rubibi at [263]).

7. The native title party has submitted three affidavits in support of its contentions. It is clear that the information given about sites in Mr Smythe and Mr Murray’s affidavits is of a sensitive nature and that they have not taken the decision to provide the information lightly. They say they are providing the information to the Tribunal in order to protect the sites. Mr Smythe in particular talks about being scared to provide information about the sites because they are secret and gender restricted areas. The concerns he expresses go so far as for me to use my discretion under s 109 of the Act in not replicating his affidavit in full, on the basis of the cultural and customary concern expressed in the affidavit about public dissemination of this material via my reasons for decision. The other parties have all seen his affidavit and have had the opportunity to respond to it, so there is no prejudice to them in not publishing that material, and I am able to state findings of fact (as required under s 162 of the Act) without reciting this material (see Parker (at [75])).For these reasons, I have only annexed to this decision the affidavits of Mr Murray, Mr Calderwood and Mr Clegg (at Annexures A to C respectively).

Legal principles

1. Section 237 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; and

   (b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

2. The legal principles outlined by Deputy President Sumner, in relation to s 237 of the Act, in Walley (at [7]–[23]) are adopted for the purpose of this determination (by way of the operation of s 146 of the Act).

3. In relation to the nature of an exploration licence, I adopt the principles outlined in Tarlpa at [10]-[15].

4. In relation to s 237(a), in addition to the principles outlined in Walley, I note that evidence about community or social activities which is general and unspecified in nature will not be sufficient for a finding that interference is substantial and not trivial (see Asia Investment Corporation at [14]). I also adopt the definitions of ‘interfere directly’ and ‘carrying on’ from Tarlpa, as applied to s 237(a), (at [105]-[109]).

5. In relation to s 237(b), I adopt the principles outlined in Maitland Parker at [31]–[38], [40]-[41], recently endorsed in Raymond Ashwin at [16].

6. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters on the basis that major disturbance should be determined by reference to what is likely to be done, rather than what can be done (see Smith at [23]). This involves an evaluative judgment on whether major disturbance to land and waters concerned is likely to occur, from the point of view of the Australian community, inclusive of the Aboriginal community, as well as considering the concerns of the native title party (Oriole at [41]-[57]).

Government party contentions and evidence

1. The Quick Appraisal provided by DMP on 16 July 2013 indicates that the underlying tenure to E38/2602 is a pastoral lease (Yamarna 3114/854) at 100 per cent. There is one live exploration permit (for petroleum) that overlaps the proposed licence by 100 per cent. I note that exploration permits for petroleum are very low impact in nature and that none of the parties have made submissions that this permit has impacted on any of the criteria in s 237. Overlapping the proposed licence there is also: one live exploration licence (by 0.2 per cent); one live miscellaneous licence (by 6.8 per cent); one pending exploration licence (by 100 per cent); a pending miscellaneous licence (by less than 0.1 per cent); and a pending mining lease (by 0.2 per cent). Dead tenements overlapping the proposed licence consist of eight exploration licences encroaching on the proposed licence by between 0.2 and 100 per cent, granted between 1987 and 2001 and now all expired, surrendered or withdrawn. Services affected are four tracks and one fence line.

2. The Government party evidence indicates there are no Aboriginal communities located within the proposed licence. This is also indicated in the map provided by the Tribunal.

3. The extract from the DIA Aboriginal Heritage Inquiry system, Aboriginal Sites Database, indicates that there are no registered sites within the proposed licence. Tribunal mapping indicates that there are two DIA sites within a 10km radius of the proposed licence (sites 3110 (over part of Minnie Creek and Minnie Creek Road) and 1553 (near Munjil Soak)). There are another five registered sites located approximately 20-25km north and north-east of the proposed licence (3109, 16087, 2672, 2712 and 3106) and one further site located approximately 18 km north-west (1546).

4. The Government party indicates they intend to impose the endorsements and conditions set out in the Draft Tenement Endorsement and Conditions Extract, being as follows:

   ENDORSEMENTS

   1. The Licensee’s attention is drawn 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.

   3.   The grant of this licence does not include the land the subject of prior Exploration Licence 38/1386. If the prior licence expires, is surrendered or forfeited that land may be included in this licence, subject to the provisions of the Third Schedule of the Mining Regulations 1981 titled “Transitional provisions relating to Geocentric Datum of Australia”.

   CONDITIONS

   1.   All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe immediately after completion.

   2.   All disturbances to the surface of the land made as a result of exploration, including costeans, drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the Environmental Officer, Department of Mines and Petroleum (DMP). Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the Environmental Officer, DMP.

   3.   All waste materials, rubbish, plastic sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.

   4.   Unless the written approval of the Environmental Officer, DMP is first obtained, the use of drilling rigs, scrapers, graders, bulldozers, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.

   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.

1. The Government party states it also intends to place the proposed Regional Standard Heritage Agreement (RSHA) condition on the grant of the proposed licence, as follows:

   In respect of the area covered by the licence, the licensee, if so requested in writing by the Yilka Native Title Claimants, the Applicant in Federal Court application no WAD297 of 2008 (WC08/05), such request being sent by pre-paid post to reach the Licensee’s address,  PO Box 898, Kalgoorlie, WA 6433, not more than ninety days after the grant of this licence, shall within thirty days of the request execute in favour of the Yilka Native Title Claimants the Central Desert Standard Heritage Agreement.

2. The Government party states (at 23) that RSHA agreements provide, amongst other things, that the grantee party must:

• notify the native title party about proposed on-ground works (whether ground disturbing or not) and provide detailed information about those works before commencing them;

• consult with the native title party about surveys of the land before carrying out ground disturbing works;

• carry out surveys with the participation of the native title party prior to commencing ground disturbing works in some circumstances; and

• consult the native title party before applying for consent under section 18 of the Aboriginal Heritage Act (AHA).

1. While I have not been provided with a copy of the Central Desert Standard Heritage Agreement by any of the parties, the native title party makes comments about the applicable RSHA, in the context of why it does not find it effective to protect sites of particular significance (see further discussion at [55] of this decision).

Grantee party contentions and evidence

1. The grantee party has provided affidavit evidence from Mr Clegg, the grantee party's representative.  The grantee party provided, as an annexure to the affidavit of Mr Clegg, an undated Exploration and Prospecting Deed of Agreement between the native title party and the grantee party.  Mr Clegg’s affidavit states that access to the exploration licence is via the White Cliffs-Yamarna Road which has existed since 1935. Mr Clegg refers to mining tenements which existed between 1987 and 2011, and which are now dead, but I note these are actually exploration tenements, according to the Quick Appraisal dated 16 July 2013.   He notes there are no registered sites, and that the grantee party has offered to execute the Exploration and Prospecting Deed of Agreement.

2. The grantee party states that it has provided a detailed program of work for the first two years (annexure D).  This includes desktop research and soil sampling with negligible ground disturbance in year 1. But it is also stated that drill targeting in worthwhile areas may be generated in year 1 and it is not clear the level of disturbance this may cause. In year 2, rotary air blast or air core drill testing may be used ‘sparingly’. The grantee party states ground disturbance ‘will be kept to a minimum by utilising any existing tracks and/or gridlines and using a compact drilling rig with a small footprint’. I do note that the Quick Appraisal dated 16 July shows four existing tracks on the proposed licence.  I note that the native title party reply indicates that even if such tracks did exist, they may not be appropriate for the grantee party to travel on.  I note also that the native title party reply also states that some tracks have been discovered near the proposed licence which raised concerns for them, but there is no evidence this is related to any activity of this grantee party.

3. Mr Clegg states the grantee party corporate governance statements adopt an Indigenous Peoples and Community Relations Policy effective from 1 July 2010, and that its corporate governance statements also adopt an Environmental Policy from the same date. He states the grantee party is committed to the broad text and structural terms of the deed of agreement and remains willing to execute the amended agreement offered ‘should the native title party elect to settle these proceedings prior to a determination.’ Mr Clegg has attached a copy of both the Indigenous peoples and environmental policies to his affidavit which outline the broad tenor of the grantee party's intended approach to local communities; both are signed by the director of Goldphyre WA Pty Ltd. Mr Clegg’s affidavit is supported by a statement of contentions which addresses all sub sections of s 237 of the Act.

4. In relation to s 237(a) of the Act, the grantee party refers to the predictive assessment the Tribunal must undertake (as per Smith) and says that the Tribunal must take into account factors which may have already had an impact on the native title party’s social or community activities. It states that the native title party’s evidence focuses on the tjukurrpa (spiritual songlines) associated with Minnie Creek, which is approximately 10 kilometres north of the exploration licence, and that there is no evidence that the native title party has taken action to register any sites of particular significance within the proposed licence.  

5. The grantee party states the native title party affidavits are relevant in that Mr Murray’s affidavit supports the need for protection of the Minnie Creek area and the tjukurrpa that flows into the exploration licence (at 13). The grantee party  also points to Mr Smythe’s affidavit in relation to the tjukurrpa and that the exploration licence is a sacred place and that Mr Smythe does not want the grantee party driving around, disturbing the soil, drilling holes or making camp there (at 14). The grantee party states it is clear from those affidavits that as the traditional owners, the native title party have an obligation to take care for and look after the land.  The grantee party submits that ‘the activities carried out by the native title party in maintaining their traditional customs and looking after their country is compatible with the expedited procedure applying. In other words, there is nothing stopping the native title party from monitoring and discussing the activities of the grantee party, subject to safety requirements’ (at 16). The grantee party will not gain exclusive rights of possession.

6. In relation to s 237(b) the grantee party points to the case of Striker Resources, and states that it adopts the contentions of the Government party in relation to s 237(b). The grantee party states it is aware of the AHA and will fully comply with this and its two internal policies. It is prepared to enter into the deed of agreement if requested to do so by the native title party and the grantee party contends that, overall, there is not likely to be any interference with any sites of particular significance.

7. In relation to s 237(c), the grantee party states that the native title party does not assert that the act will involve any such major disturbance and points to the case of Rosas, where it was held that evidence of physical disturbance must be shown, and that cultural concerns about unauthorised access alone cannot form the basis of major disturbance. The grantee party states that it will be conducting exploration activities which will not involve major disturbance, and that it adopts the contentions of the Government party in relation to s 237(c). Grantee party contentions state that its technical director has spent much of his time in the north-eastern goldfields and ‘he therefore has respect for the land.’ It is always preferable for a person to attest to their own evidence, rather than a statement such as this being made on their behalf. As such, while I accept this statement, I do not give it weight in this decision.

Native Title Party contentions and evidence

1. The Government party contends that the affidavits submitted by the native title party, in relation to interference with community or social activities and sites of particular significance, express concerns that appear speculative or arise from misapprehensions about what is proposed by the grantee party if it is granted the proposed licence (at 30). The Government party contends the affidavits lack sufficient specificity for the Tribunal to rely on, especially in relation to the location of sites (at 30). The Government party (at 20) also states the Tribunal can have no regard to the maps referred to in the affidavits, as they were not attached or exhibited to the affidavits. I agree that it is preferable for such documents to be so attached, but I will have regard to them to the extent they are consistent with what is contained in the affidavits, bearing in mind s 109 of the Act.

2. I find that the affidavit evidence supplied by the native title party is sufficiently specific to the extent that I accept the location of sites of significance as being within and around the proposed licence, and the affidavits corroborate each other in terms of the location of sites.  The location of sites is described in general terms because they are secret sites and access is restricted to initiated male members of the native title party.  It is clear that the native title party has provided as much information as possible about these areas without disclosing details which would offend against their culture and tradition.  The native title party representative could also note that it is possible to request confidentiality orders for such material, should they be instructed to do so.

3. The native title party reply contends that the grantee party has not provided evidence of its proposed activities after the first two years (at 2.1), and that it has not provided evidence dealing with the intended location of activities within the proposed licence (at 2.3).

4. The native title party reply contends that the terms and correspondence around the negotiation of the draft agreement should not be given weight by the Tribunal (at 2.4). I agree with this contention. While it gives some indication of the grantee party’s attitude and approach to matters relevant to the inquiry, the agreement was not finalised between the parties and is not signed, so its content is not enforceable as between the parties. All that can be said is that the terms of the agreement proposed by the grantee party are not acceptable to the native title party in this matter.  

Considering the evidence under s 237 of the Act

Section 237 (a) Community and social activities

Native title party

1. The native title party contends that:

   ·members of the claim group frequently travel to the area of the proposed licence to conduct community and social activities (at 3.12(a));

   ·the proposed licence contains regular hunting grounds where members of the claim group hunt bush turkey, kangaroo, goanna and emu (at 3.12(b));

   ·the proposed licence is an important location for inter-generational knowledge transfer between initiated members of the claimants and wati (which I take to be referring to initiated men using Mr Smthye's context of 'I cannot say anything about this tjukurrpa story or these places in front of women, children or men who are not wati' (at 17)) from other places in Western Australia (at 3.12.(c)); and

   ·the presence of exploration and drilling activities within the proposed licence will interfere with the ability of the native title party to conduct community and social activities there, including interfering with hunting and the group’s ability to fulfil its obligation to look after the area (at 3.13). 

Government party

1. The Government party contends there is not likely to be interference with community or social activities of the native title party for a number of reasons:

   ·the grantee party’s activities will be low-impact and non-intrusive such that ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns (at 47 (a));

   ·the grantee party is willing to enter into an RSHA type agreement with the native title party and this indicates a willingness to consult with a native title party and avoid activities likely to interfere with those of the native title party;

   ·prior mineral exploration and possible mining activity, as well as the proposed licence being covered by a pastoral lease, means the community and social activities of the native title party have been subject to, or co-existent with, those other activities for a significant period of time (at 47(c)-(d));

   ·the activities planned by the grantee party do not appear likely to have any real disruptive effect on native title party activities, particularly given the intention of the grantee party to conduct those activities with cultural sensitivity and to maintain good relations with the native title party (at 47(f));

   ·mineral exploration activity will not restrict access to the proposed licence by the native title party (at 47(g)); and

   ·hunting and mineral exploration are inherently capable of coexistence (at 47(h).

Grantee party

1. The grantee party, as an annexure to Mr Clegg's affidavit, provided a proposed exploration work program for the first two years of the term of the proposed licence. Year 1 is proposed to comprise of desk top searches, field mapping and low impact rockchip and soil geochemistry in select areas of interest. The work program states that negligible ground disturbance is proposed in year 1 and that drill targeting of any worthwhile areas may also be generated. Year 2 is proposed to comprise of follow up soil geochemistry and rockchip sampling, where required. The work program states that shallow rotary air blast or air core drill testing may be used sparingly to evaluate targets, and that ground disturbance will be kept to a minimum by utilising any existing tracks and/or grid lines and using a compact drilling rig with a small footprint.  

2. The grantee party contends that the activities carried out by the native title party in maintaining their traditional customs and looking after country is compatible with the expedited procedure applying.  For example, the grantee party will comply with its Indigenous Peoples and Community Relations Policy, which includes commitment to establish and maintain relationships, consultation, ensuring that activities are conducted in a way that is sensitive to rights, interests and heritage and in accordance with indigenous customs (at 16-17).

Consideration

1. As noted above at [18], evidence about community or social activities which is general and unspecified in nature will not be sufficient for a finding that interference is substantial and not trivial. The grantee party contends that the evidence provided by the native title party about community and social activities is very general and not at all specific. I agree with this contention. While the native title party has given some evidence about the location of sensitive areas, and those who are involved in some activities (for example, initiated men), the native title party has not given details about the frequency or time of year when such activities are carried out, or of the individuals or groups involved in the community and social activities.  

2. The Government party contends that previous exploration and possible mining activity as well as the pastoral lease are likely to have already impacted on the social and community activities of the native title party. While there is no evidence of any prior mining activity being carried out on the proposed licence, I accept there is likely to have been previous exploration activity, but there is no evidence of the circumstances in which these licences were granted, what activity was carried out in reliance on them or of the impact on community or social activities.  The native title party does not appear to have noted any previous impediment to their activities from exploration activities.

3. In relation to the pastoral lease, the native title party contends in its reply that clear evidence is provided in the affidavits of Mr Smythe and Mr Murray which demonstrates the lack of impact on the community and social activities of the native title party (at 3.1). I agree that it does not appear pastoral activities have had any significant impact on the social and community activities of the native title party.  For example, 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. 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 27).

4. I do not agree with the Government party’s contention that a grantee party’s willingness to enter into an RSHA translates to a willingness to consult with a native title party and avoid activities likely to interfere with those of the native title party. However, I do find that the grantee party representative has given sworn evidence that his client is respectful of and intends to conduct its activities in a way that does not interfere with the social and community activities of the native title party.  It appears that the grantee party has established a culture of consultation with and respect for local indigenous groups.  Without specific evidence to the contrary, I also accept the contentions of the Government and grantee parties that exploration activities and the social and community activities of a native title party are able to coexist.

5. I find that the native title party has not provided sufficient evidence to convince me there are social and cultural activities carried out on the area of the proposed licence which may be interfered with by exploration activities.    

Section 237 (b) Sites of particular significance

Native title party

1. The native title party contends that the proposed licence contains several areas associated with a significant tjukurrpa and is located in the vicinity of an important regional men’s site, Minnie Creek. The tjukurrpa travels through the proposed licence, visiting two locations, one in the north of the proposed licence and one in the south part of the proposed licence (at 4.25(a)). Parts of the proposed licence are said to be secret and dangerous for women and non-initiated Aboriginal men and there are a number of areas in, and in the vicinity of, the proposed licence for which access to and information about is strictly regulated to certain people (at 4.25(b)). The native title party contends that Minnie Creek and associated areas are important for 'men all over the Western Desert' (at 4.25(c)). They state the northern and southern portions of the proposed licence contain water sources, hills and trees which are associated with the tjukurrpa (at 4.25(e)).

2. The native title party contends their members have a responsibility to ensure non-Aboriginal people do not endanger sites and areas of particular significance, and that failure to care for them will result in sickness or punishment (at 4.27(a) and (c)). It is the role of the wati of the native title party and other claimants to ensure the safety of Aboriginal and non-Aboriginal women and non-initiated Aboriginal men in relation to gender restrictions associated with the area (at 4.27(b)).

3. The native title party contends that it has taken special measures in relation to Minnie Creek and the associated tjukurrpa, including closing off access by non-Aboriginal people, in addition to the traditional exclusions placed on non-initiated men, women and children (at 4.25(d)).  For example, the native title party has led evidence in relation to various 'exclusion zones' which protect areas from interference, and Mr Calderwood explains that these zones were negotiated with another grantee party, and applied to the sensitive areas in the north east corner (associated with a hill) and in the south west corner (associated with a breakaway) of the proposed licence (at 13).

4. The native title party contends that the proposed licence is located in an area which is site rich and of particular significance (at 4.26). The interconnectedness of sites on and within the area of the proposed licence is demonstrated by, and perhaps is a product of, the traditional method of travelling through the country, following the tjukurrpa, which the native title party say is still practiced today and handed on to younger generations (at 4.26(c)).

1. The native title party contends the area in and around the proposed licence is of such particular significance that entry onto land that has not been agreed with by the native title party would be likely to result in interference with sites or areas of particular significance; these sites, because they are songlines, are not readily identifiable by people who are not members of the native title party. These areas are considered secret and dangerous (at 4.28).

2. The native title party contends that, for various reasons, the AHA is not effective to ensure interference with areas or sites of particular significance in relation to the proposed licence is not likely, including that: the definition/concept of sites of particular significance differs from that of s 237; the criteria for activation for the provision of the AHA are different to the test of particular significance in s 237; offence provisions in the AHA are more limited than that concept of interference; and the AHA provides a mechanism by which sites may be destroyed (as outlined in section 4 of the native title party contentions). The native title party quotes Deputy President Sosso in Ronald Crowe at [89], where he said:

   Despite the protective operation of the Aboriginal Heritage Act 1972 it does not constitute a complete answer to the question whether the doing of the future act will be likely to result in interference to sites or areas of particular significance within the meaning of paragraph 237(b).

3. The native title party, in its reply, clarifies that it is the native title party, rather than Central Desert Native Title Services Ltd, which does not endorse the use of the RSHA for the Central Desert region in relation to its claim area (at 5.1). In its statement of contentions, the native title party outlines a number of reasons why the RSHA is not effective to ensure that interference with areas or sites of particular significance in relation to the proposed licence is not likely (at 4.15-4.24). For example, that the RSHA allows a grantee party to conduct non-ground disturbing work without conducting a heritage survey, including access across the proposed licence and sampling with hand-held tools. In addition, where a native title party does not consider activity to be non-ground disturbing, the RSHA only requires the grantee party to endeavour to resolve the matter. The RSHA requires consultation but not consent prior to an application to destroy a site under s 18 of the AHA, and this is not aimed at the protection of sites and will not prevent interference. Finally, the RSHA does not deal with interference caused by inappropriate access or dealings with areas or sites of particular significance as a result of gender.

4. The native title party contends that the right to negotiate is required in relation to the proposed licence so that meaningful consultation and negotiation between the native title party and the grantee party occurs, to ensure that areas and sites of particular significance are not interfered with (at 4.31).   

5. The affidavit evidence of Mr Calderwood supports the native title party contentions, and the affidavit evidence of Mr Smythe and Mr Murray.  For example, Mr Calderwood states that (at 9):

   The Tenement is situated in country where the sites and dreaming tracks of two particularly significant tjukurrpa are located. Knowledge of these tjukurrpa is restricted to initiated Aboriginal males. In the course of my employment with Central Desert I have been privy to restricted and unrestricted information in relation to these tjukurrpa and I provide in this affidavit only the information that can be known by females and non-initiated Aboriginal males.

Government party

1. The Government party contends that the native title party has described the nature and location of the tjukurrpa in vague or general terms that are not determinative of whether it is a site of particular significance (at 61). The Government party does not accept that the native title party has shown there are any sites of particular significance on the proposed licence (at 62). The Government party does not accept that the mere presence of an individual in an area may cause direct interference with a site (at 66).

2. The Government party contends that interference with any areas or sites of particular significance on the proposed licence is not likely because the grantee party is aware of the existence and general location of the site because it has been the subject of evidence in this inquiry (at 68(a)). The Government party contends that the grantee party’s willingness to enter into the RSHA shows a willingness to consult with the native title party and avoid activities likely to interfere with sites. Mr Clegg’s affidavit also indicates that the grantee party intends to conduct activities in a way which will not adversely impact on sites and which will respect local Aboriginal cultural concerns (at 68(b)).

3. The Government party notes that to enliven s 237(b) of the Act, spiritual or emotional concerns must attach to physical interference with an identified area or site of particular significance, and not a general spiritual concern (at 68(e)). As the area of the proposed licence has been subject to prior mineral exploration and possibly mining activity, the Government party contends that the activities contemplated by the grantee party would be the same as, or no more significant than, the previous and continuing use of the area (at 68(f)). The Government party asserts that the AHA and associated processes are likely to prevent interference with areas or sites of particular significance (at 68(g)).

4. The Government party says that it does not accept the area of the proposed licence is site rich (at 64). It says that the assertion by the native title party is of no forensic value to the Tribunal and that the existence of particular sites, their number and distribution are questions of fact in each case. It says that the existence of some identified sites or places of some unspecified importance on or near a tenement area does not mean the tenement area is site rich. The Government party says that ‘site rich’ is not a defined term or identifiable legal test which arises out of previous Tribunal decisions (at 65).

Grantee party

1. The grantee party contends that it is aware of the protection given to Aboriginal sites, whether registered or not, and will act lawfully and in accordance with the AHA and the grantee party’s Indigenous Peoples and Community Relations Policy and Environmental Policy (at 23). The grantee party contends that the site protective regime of the AHA is sufficient to ensure that interference with areas or sites of particular significance is unlikely (at 24). The grantee party also mentions that it remains prepared to enter into the draft Exploration and Prospecting Deed of Agreement, subject to the changes sought by the grantee party (at 25).

Consideration

1. The native title party has provided evidence in relation to the existence of sites and areas of particular significance on and in the vicinity of the proposed licence. The three affidavits corroborate each other in relation to details about the sites.

Location of sites

1. Mr Smythe and Mr Murray, in their affidavits, describe the proposed licence as being located just to the east of the Yamarna/Minnie Creek Road. This description is confirmed as accurate by the map supplied by the native title party and also by the Tribunal map. This demonstration of the deponents’ awareness of the location of the proposed licence, and their description of features around and within it, which correlate with features on the maps, leads me to believe that the evidence they give of sites located on and near the proposed licence is accurate, and enables me to place substantial weight on this evidence.

2. Mr Smythe talks about the proposed licence being between and partially covered by two important areas that are associated with Minnie Creek, and about an important tjukurrpa which travels through the proposed licence (at 6). He talks about being told by the old men about places in the north of the tenement, and that is the reason he knows about the area having connection with Minnie Creek (at 7). He says he is especially worried about an area that covers approximately one quarter of the proposed licence in its north east corner, and another area which covers about one fifth of the proposed licence in the south west corner (at 33). Mr Smythe says that these areas at the north and south of the proposed licence are associated with Minnie Creek, which is an extremely important men’s site (at 34). Mr Smythe says that ‘There is water, and trees, and hills in those places that are very important to the tjukurrpa story’ (at 23). This evidence is confirmed by the Tribunal map and the map supplied by the native title party, which both show that there are water sources in areas on or near the north east and in the south west corners of the proposed licence.  It is also supported by the evidence of Mr Calderwood.

Significance of sites

1. Mr Smythe, Mr Murray and Mr Calderwood depose to the secret nature of the area of the proposed licence, including people not being allowed to ‘hang around’ or pick up items from the area. They also talk about people not be able to go there without ‘older men’ or ‘enough elders’ or ‘the right people’.  This evidence supports the contentions about the sites being gender restricted and hence of particular significance.

2. Mr Smythe says that he is frightened even giving quite general details about the sites and says that he is only doing so in order for the Tribunal to understand and to protect Yilka culture (at 17-18). He says ‘I don’t want to go too far or to make a mistake. If I do, I will be criticised by other wati from this area’ (at 17).  He says that ‘It is really important that women and men who haven’t been through the law don’t hear the stories, and don’t go to these places’ (at 25). He talks about not telling his family anything about the area other than when his son went through the law and he was able to ‘tell him about that place and take him there’ (at 9). Mr Smythe talks about taking ‘young fellas’ to the area of the proposed licence and telling them some of the story but only being able to follow the story up through the proposed licence to a kilometre or so north of it, not all the way up to the main men’s place, because ‘We didn’t have enough of the right people there’ (at 16).

3. Mr Smythe says that ‘The Minnie Creek area and other places in the Yilka claim area are to do with a big tjukurrpa story.  The watis from this whole area, not just the Yilka claim area, but from other places in Western Australia, know this story’ (at 17).  Mr Smythe provides evidence about the tjukurrpa in his affidavit, which I have decided not to reproduce due to its obvious cultural sensitivity, as outlined earlier in this decision. In general terms, he says there is an important tjukurrpa which travels from an important men’s area south of and partially within the proposed licence, through the proposed licence to an important men’s area north of and partially within the proposed tenement and then on to Minnie Creek in the north (at 22).

4. In addition, Mr Calderwood distinguishes between types of tjukurrpa, and outlines why the songlines and the areas associated with these songlines in the north east and the south west of the proposed licence are of particular significance, as compared with being of significance or importance to the native title party.

Site rich

1. The term site rich is to be deciphered carefully. In Mineralogy, the use of site rich was construed by Deputy President Sosso at [19] to [21] as follows:

   [19] ...It is open, of course, for the native title party to make such an assertion, but the question of whether an area is site rich is a question of fact. Identification of whether an area is site rich can only occur if there is evidence of sites and areas registered under the relevant aboriginal heritage legislation of a State or Territory and/or evidence from persons asserting native title identifying such sites and explaining their significance. It would be incorrect to assume that simply because there are numerous sites registered on a heritage register that the Tribunal will make a finding that an area is "site rich". That term is not recognised in the Act, and has been used by various Members as a short hand description of an area which is demonstrably rich in sites of particular significance to native title claimants and which sites cumulatively illustrate the overall spiritual importance of the relevant land and waters. Accordingly whether there are numerous sites registered or no sites registered is not of itself determinative of whether an area is "site rich".

   [20] In this matter the native title party points the Tribunal to the fact that the proposed tenement is surrounded on all sides by sites registered with the Department of Indigenous Affairs. That is an important factor, but it is only the starting point. It would be an unusual circumstance for the Tribunal to make a finding that an area is "site rich" without direct evidence from a person or persons from the claim group who can demonstrate that they are authorised to speak on behalf of a site or area, and that they have the requisite knowledge to explain the spiritual significance of an area or site to the claim group, or to a family or other sub-group within the wider claim group.

   [21] ... The Tribunal will look beyond such assertions, and concentrate on direct evidence from the indigenous spokespeople and from independent and objective sources of information, particularly heritage registers.

2. Also, in Geotech International, it was concluded that s 237(b) is concerned with identifying sites of particular significance and it is not a necessary requirement to combine various sites into a general assertion that an area is site rich. I adopt the following reasoning from Member O’Dea in Geotech International at [43]:

   In certain circumstances it may be, depending on the evidence, appropriate to describe an area which contains numerous sites of particular significance as being rich in sites. However, in my opinion, it is unhelpful to the predictive assessment that I am required to undertake to introduce a term of art such as ‘site rich’, because it may imply a range of assumptions which are not necessarily the case in any particular evidentiary situation. In circumstances where the evidence suggests there are sites of particular significance, particularly where there are a number of such sites, the intentions of the grantee party relating to the manner in which it intends to conduct its exploration activities will be of pivotal importance in the predictive assessment as to whether or not it is likely that such sites will be interfered with during the course of those activities. To the extent that the grantee party seeks to persuade the Tribunal that the risks of interference are not likely, it is incumbent upon them to provide evidence as to how such interference, including inadvertent interference, can be avoided. In those circumstance [sic], in the absence of such evidence from the grantee party, it is likely to prove difficult to persuade the Tribunal that interference with sites of particular significance is not likely. On that point, I accept the Government party’s contention that the use of the term ‘site rich’ is of no value to the Tribunal in the exercise of its predictive assessment.

3. Consequently, I agree with the argument of the Government party raised above that the term site rich is not particularly helpful in this matter. The central issue remains whether there are any areas or sites of particular significance likely to be interfered with under s 237(b).

Interference with sites

1. I find there are areas of particular significance on the proposed licence, based on: the areas are stated to be of a gender sensitive nature; there are strict controls within the native title party as to access to the areas; there are features associated with those sensitive areas that are consistent with features on the map in the areas in the north east and the south west of the proposed licence; and the area is stated to be connected, through a songline, to Minnie Creek which is approximately 10 kilometres to the north of the proposed licence.  The question then is, are the activities of the grantee party likely to interfere with these sites of particular significance?

2. In this particular matter, this has not been an easy question to answer. I find that the grantee party has provided some information about its proposed activities, and how it will access the area, that is, by using existing tracks. However, there is nothing to say it will not be exercising its full suite of rights over the area, as allowed by s 66 of the Mining Act, for up to 12 years in total.  It has not provided any contentions or affidavit evidence addressing the native title party assertions that the areas in the north east corner, and the south west corner are particularly sensitive areas, and contain water, trees and hills which are 'very important'.  I appreciate that the grantee party has indicated it will approach the area of the proposed licence with sensitivity, and that it has policies in place to assist it in this endeavour.  I appreciate that a pastoral lease runs over the entire licence, however, there is no evidence that the areas of particular significance outlined by native title party have been affected by that pastoral lease, or by previous exploration activity (the nature of which is unknown).  

3. Due to the nature of the sites of particular significance in the north east and south west corners of the proposed licence, they would not be easily identified by persons other than the native title party. As such, I find that there is a likelihood of interference with the sites of particular significance outlined by the native title party in this matter, albeit that the interference would most likely be of an inadvertent nature. As such, for the purposes of s 237(b) of the Act, I find there is a real risk of interference with sites of particular significance.

Section 237 (c) Major disturbance to land or waters

1. The native title party has not addressed this criterion in its statement of contentions or reply.

2. The Government party, in its statement of contentions, suggests that there is no evidence before the Tribunal that the grant of the proposed licence is likely to involve major disturbance to the land or waters or create rights the exercise of which is likely to involve major disturbance (at 75).  It says that the grant is not likely to involve major disturbance to land or waters for the following reasons:

• the grantee party’s activities will be low impact and non-intrusive and ground disturbing activities are intended to be conducted in a way which will not adversely impact on heritage sites and which will respect local Aboriginal cultural concerns;

• activities on the proposed licence will be subject to the State’s regulatory regimes;

• any authorised disturbance to land and waters by the grantee party may be mitigated by proposed conditions requiring rehabilitation of the land;

• the area of the proposed licence has been subject to prior mineral exploration and possibly mining activity and is covered by a pastoral lease and the grantee party’s activities would be the same as, or no more significant than, these previous activities; and

• it does not appear that the proposed licence has any particular characteristics that would be likely to result in major disturbance to land or waters, given the activities proposed by the grantee party.

1. The grantee party says in its statement of contentions that it will comply with the Government party’s regulatory regime governing exploration activities and the conditions imposed on the grant of the proposed licence dealing with ground disturbing activities, including requirements for rehabilitation of the land (at 29).

1. In the absence of any submissions or evidence suggesting otherwise, I find that the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involved major disturbance to any land or waters concerned.

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E38/2602 to Goldphyre WA Pty Ltd, is not an act attracting the expedited procedure.

Helen Shurven
Member
30 July 2013

ANNEXURE A

Affidavit of Harvey Murray

I, Harvey Murray, of Cosmo Newberry Community in the State of Western Australia, say on oath:

1. I am a traditional owner for the country covered by tenement E38/2602 (the Tenement). I am the Applicant for, and a member of, the Yilka native title claim group.

2. I am the Chairman of the Cosmo Newberry Community.

3. I make this affidavit in support of the Statement of Contentions of the Native Title Party in relation to the Tenement.

4. The information in this affidavit is all things I know to be true.

5. 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 inside the Yamarna Pastoral Lease.

6. The Tenement is located just to the east of the Yamarna/Minnie Creek Road, which goes between Laverton and Warburton. That Yamarna/Minnie Creek Road also travels through an important men’s place.

7. I am aware of the men’s place that is approximately 10km north of the Tenement [Minnie Creek], but I don’t know much about that place because I have not been through the law. I know that there is a tjukurrpa associated with that men’s place that travels through the vicinity of the Tenement and that there are some areas important to the tjukurrpa that cover part of the Tenement. I can’t say any more about it, because I don’t know about that tjukurrpa because I have not been through the law, but I know something important is there. I don’t have the cultural authority to say anything about it. I can say a little bit about how we protect those places, but otherwise I would never speak about those places publicly, because I don’t have the authority to, and it’s not information that should be shared.

8. Because of the importance of the tjukurrpa in the Western Desert it is something that we feel partly responsible for because our country is here, and we live here, and we have to protect it, because we are expected to do that by other people, and that’s why we have to try and work through how we can stop things happening in the vicinity of the important site to the north of the Tenement and that tjukurrpa track and sites that are in or near the Tenement.

9. We have to be careful about all access to that area, doesn’t matter if it’s for exploration, mining, hunting, whatever, people have to be aware that it’s a no-go zone. That isn’t just for white fellas, that’s for any human being, unless you have the cultural authority, which is usually older men. They can go there and talk about it, but not others.

10. I travel on the Yamarna/Minnie Creek Road often, maybe once a month. I travel on that road to check for tracks to make sure that no one is accessing those areas that they shouldn’t be, and at the same time we do hunting. There is marlu, kangaroo; karlaya, emu; goanna; and nganurti, turkey, out there.

11. As well as travelling up and down the Yamarna Minnie Creek Road, we also travel the Yamarna Minnie Creek Road and turn off it on to the Mt Shenton Yamarna Road. That turn-off is just inside the Tenement on the map I was shown. We can also travel east of that road, off the road, except where we know that there’s a site that we’re not allowed to go. We can hunt all through that area, as long as we don’t go to those areas we’re not allowed to go.

12. I was taught to avoid those 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, 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.

13. We are taught that, if we go to the wrong place, including those places in the Tenement, we will get punished, depends on how far you go. Maybe also your family with 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.

14. If I went to the wrong place, I’d get in trouble, and my extended families would get it [sic] 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.

15. If a mining company came out and drilled in the wrong spot, in one of those men’s areas – if we didn’t do our job and protect it, we would all get in trouble. The people who look after country, the men who have done work to protect the area, they’d get in trouble for not looking after it properly, for not stopping that mining company getting that mining tenement.

16. As the area of the Tenement is such a sensitive area, we don’t do large amounts of hunting in that area. We can travel the road, and hunt off the side of the road. We’ve been told by the men that there is a line where the site is but to be on the safe side we keep a buffer. We don’t want to make the mistake of getting too close. Because it’s such a small area, for hunting out near there, we’d just stay on the road.

17. When the Yamarna Minnie Creek Road was a well-used road, lots of people used to hunt up and down it. Now there is Great Central Road, so not as many people travel through on the Yamarna Minnie Creek Road. Aboriginal people travelling north-east still come through there on that Yamarna Minnie Creek Road. They know there is something there, on the area of the Tenement, and they will do the right thing, make sure no one goes there.

18. It’s not okay to hunt too close to those areas in and near the Tenement, we should only hunt close to the road. You can’t take people out there camping, gotta camp in a clear place, can’t have kids running around, going to the wrong place. It might be different for the men with cultural authority, they can go out there.

19. I’ve taken my kids and grandkids out along that Yamarna Minnie Creek Road, as well as their brothers and sisters, Aboriginal way. When I take them out there, I make sure that they know they’re not allowed to go near those important areas. I make sure that they know they’ll get in trouble or punished if they do, or if they let anyone else go there.

20. When strangers, or maliki, pass through our country, including in that Yamarna Minnie Creek Road, 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, 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.

21. It’s very important in our culture that visitors talk to the traditional owners before they go out on their country; this is 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 owner who didn’t stop them.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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. 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.

ANNEXURE B

Affidavit of Sean Mark Calderwood

I, Sean Mark Calderwood, of 76 Wittenoom Street, East Perth in the State of Western Australia, hereby sincerely declare and affirm:

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 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 E38/2602 (Tenement).

7. As part of my work at Central Desert and also previously with the Native Title Unit, I attend claim meetings and undertake heritage surveys with the Yilka native title claimants.

Tjukurrpa

1. I base my opinions in this matter on my knowledge and understanding of the tjukurrpa or Dreamings of the country in which the Tenement is situated; and on my broader knowledge and understanding of Aboriginal mythology, traditional ownership and contemporary cultural concerns on the Western Desert cultural bloc and adjacent area.

2. The Tenement is situated in country where the sites and dreaming tracks of two particularly significant tjukurrpa are located. Knowledge of these tjukurrpa is restricted to initiated Aboriginal males. In the course of my employment with Central Desert I have been privy to restricted and unrestricted information in relation to these tjukurrpa and I provide in this affidavit only the information that can be known by females and non-initiated Aboriginal males.

3. The two particularly significant tjukurrpa that are located in the general area of the Tenement are specifically associated with an important men’s site in the region, Minnie Creek. Minnie Creek is located 10 kilometres north of the Tenement. One of the tjukurrpa associated with this exceptionally important men’s site passes directly through the Tenement, visiting locations in the south and north of the Tenement. The tjukurrpa meets up with the main significant tjukurrpa at Minnie Creek.

4. Both the tjukurrpa that passes through the Tenement and the tjukurrpa at Minnie Creek with which it is associated are stories only passed on to initiated males, once they are considered senior enough to be imparted with the knowledge. The tjukurrpa stories themselves, as well as the location and content of sites associated with the stories, are restricted to senior initiated and are considered pika ngurlu or dangerous to all but this category of person.

5. Both tjukurrpa are well-known to senior initiated men throughout the region and are of regional cultural significance as they connect the Yilka area with other areas and communities in the Western Desert. Today, people at such widely separated spots from as far as Wyndham in the north and Eucla to the south, including the Martu and Pintupi, men from the Goldfields and Spinifex, and the Pitjantjatjarra and Ngaanyatjarra lands look after sites associated with the tjukurrpa that runs through the Tenement. People at these spots are linked in shared responsibility to the Dreaming.

6. I have access to information held by Central Desert on behalf of the Yilka native title claimants in relation to previous research in this area and the results of previous heritage work in the vicinity of the Tenement. As a result of reviewing this information, I am aware of the following information:

   a.In 2004, a group of senior men with responsibility for the Minnie creek area visited the Yamarna Pastoral lease with Dr David Brooks, an anthropologist with Ngaanyatjarra Council;

   b.As a result of this visit, the senior men requested that Dr Brooks advise a particular exploration company of “exclusion zones” in certain areas. These exclusions zones would be used to prevent any exploration or mining work being undertaken in those areas;

   c.The detail of these exclusion zones is restricted to initiated males. However, it can be stated publicly that two of those exclusion zones overlap the area of the Tenement in the north-east corner and the south-west corner. They consist of: a hill, located just outside the north-east corner of the Tenement and the surrounding area also associated with that hill; and a breakaway, located inside the south-west corner of the Tenement, and the surrounding area also associated with that breakaway.

7. I recently visited the area of the Tenement with several men with cultural authority for the area and several other slightly younger initiated men. During that visit, the men confirmed that there were significant areas located in the north and south of the Tenement that were associated with a Dreaming that passes from south of the Tenement, through the Tenement to the north and continues on to Minnie Creek.

8. The men present informed me that the hill to the north-east of the Tenement is part of a complex of sites with the Yamarna Pastoral Lease, and beyond. The breakaway to the south-west is also a part of this complex. This complex of sites is associated with a major Dreaming track or tjukurrpa that travels through vast areas of Western Australia. I have referred to this tjukurrpa previously.

9. During my visit, it was apparent that the men were nervous about and reluctant to publicly share too much information about the areas or the tjukurrpa that passes through the Tenement. However, I was informed by the men that the tjukurrpa that passes through the tenement is of extreme cultural importance, not only to them, but also to the wider group of wati across the entire Western Desert. This means that the wati have obligations to the wider region to ‘look after’ these areas.

10. I was informed during this trip, and during previous work with the native title holders, that any impact on these areas or on the tjukurrpa that passes through would potentially result in punishment for those who caused the impact; and those who allowed the impact, specifically those with cultural authority who failed to prevent unauthorised access.

11. I was also informed that to damage one of these areas, or disturb the tjukurrpa that passes through the area, would have a negative impact on other places associated with that tjukurrpa and the tjukurrpa at Minnie Creek. This is the how wati have always spoken to me about tjukurrpa and associated sites – the impact on one site or area can extend further than just that area, as sites are part of a wider whole, not just specific places.

Looking after country

1. 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.

2. Through these discussions, I understand that the Yilka native title claimants undertaken [sic] 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.

3. ‘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.

4. 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.

5. 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 [sic], 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.

1. 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.

2. As an example of the distress that can be caused by this 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.

3. On or about 30 August 2012, I attended an on-country trip with a group of men to assess the track. Then 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.

4. 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.

ANNEXURE C

Affidavit of Christopher Clegg

I, Christopher Clegg of 180 Claisebrook Road, Perth in the State of Western Australia, Tenement Consultant and Principal of Statewide Tenement & Advisory Services Pty Ltd being duly sworn make oath and say as follows:

1. I am the authorised agent for the Grantee party for the purposes of the Mining Act 1978 (as amended) (‘the Act’) and Mining Regulations 1981 (as amended) and make this affidavit in support of the application for Exploration Licence 45/2602 [sic] (‘Exploration Licence’) applied for under s 58 of the Act.

2. Access to the Exploration Licence is via the dedicated White Cliffs – Yamarna Road 9563 [sic] published at page 846 of the Government Gazette dated 18 April 1935 following the resumption order at page 812 of the Government Gazette dated 12 April 1935 – Exhibits ‘A-1’ to ‘A-6’.

3. The land applied for as the Exploration Licence is affected by the the [sic] Yilka Native Title claim (WC08/05) (‘NTP’) represented by the Central Desert Native Title Services (‘CDNTS’). Attached is a copy of the Tengraph ® Quick Appraisal showing the NTP and various prior Dead mining tenements applied for, granted and subsequently relinquished between 1987 and 2011 in respect of the land currently subject of the Exploration Licence – Exhibit ‘B’.

4. The Exploration Licence is not the subject of any registered sites under the provisions of the Aboriginal Heritage Act 1972 (WA) – Exhibit ‘C’.

5. The Grantee party has provided a detailed Programme of Work for the first two (2) years of the term of the Exploration Licence - Exhibit ‘D’.

6. The Grantee party has as part of the company’s corporate governance statements adopted a policy for Indigenous Peoples & Community Relations effective from 1 July 2010 – Exhibit ‘E’.

7. The Grantee party has as part of the company’s corporate governance statements adopted a [sic] Environmental Policy 1 July 2010 – Exhibit ‘F’.

8. Following instructions from the Grantee party on [sic] I prepared an e-mail submission to Gemma Wheeler – Carver, Legal Officer at Central Desert Native Title Services (‘CDNTS’) on 10 June 2012 offering to execute the Exploration and Prospecting Deed of Agreement (‘EPDA’) subject to incorporation of certain amendments sought by the Grantee party. Attached is a copy of my e-mail together with the EPDA – Exhibits ‘G-1’ and ‘G-2’.

9. As the EPDA subject of the offer from the Grantee party of 10 June 2012 was not acceptable to Central Desert Native Title Services the preferred Mineral Exploration and Land Access Deed of Agreement (‘DOA’) provided by CDNTS under cover of e-mail dated 6 August 2011 was forwarded to CDNTS on 1 November 2012 incorporating certain amendments sought by the Grantee party in relation to revised payments commensurate with the capacity of the Grantee party,  having regard also for the fact that the Exploration Licence area does not affect or otherwise impact the Cosmo Newberry Reserve areas Exhibits ‘H-1’ and ‘H-2’.

10. [sic] The Grantee party is committed to the broad context and structural terms of the preferred DOA and remains willing to execute the amended agreement offered on 1 November 2013, should the Native Title party elect to settle these proceedings prior to a determination being delivered by the National Native Title Tribunal.