Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Sammy Resources Pty Ltd - [2013] NNTTA 104

NATIONAL NATIVE TITLE TRIBUNAL

Harvey Murray on behalf of the Yilka Native Title Claimants/Western Australia/Sammy Resources Pty Ltd, [2013] NNTTA 104 (31 July 2013)

Application No: WO2012/0298

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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Sammy Resources Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal: Helen Shurven, Member

Place: Perth
Date: 31 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– 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:Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150, ('Jango')
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’)
Wilma Freddie and Others/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 Mr Domhnall McCloskey, State Solicitor’s Office
Government party: Ms Bethany Conway, Department of Mines & Petroleum

Representatives of the Ms Iva Morrell, McMahons Mining Title Services Pty Ltd
grantee party:

REASONS FOR DETERMINATION

On 14 December 2011, 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 E38/2610 (‘the proposed licence’) to Sammy Resources 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 42 square kilometres in size,
·the proposed licence is located 66 kilometres east of Cosmo Newberry Mission, in the Shire of Laverton,
·the native title party had until 16 April 2012 to lodge an objection application against the expedited procedure statement for the proposed licence.
On 5 April 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 May 2012 and March 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.
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 7 May 2013;
·the native title party provided a statement in reply to the Government and grantee party submissions on 14 June 2013; and
·the SSO provided the Government party’s further reply to the responsive submissions of the native title party on 8 July 2013.
The various replies predominantly arose as I noted there were three quick appraisals provided to the Tribunal, two by the Government party and one by the grantee party. Various aspects of these quick appraisals differed, and the Government and grantee parties were provided with the opportunity to clarify these details, and also to reply to the native title party reply. The Government party and grantee party provided that detail on 8 and 12 July respectively. The native title party were also provided with the opportunity to respond to the above clarification. (More detail is outlined at [23] regarding the differences between the quick appraisals).
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 10 June 2013, the Tribunal provided parties with a copy of a Tribunal map to be used for the purposes of this determination. No comments were received in response, other than a map being provided by the native title party on 14 June 2013 which it sought to rely on to the extent that it differed from the Tribunal’s map. I did not find any discrepancies between the Tribunal’s map and that submitted by the native title party.

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]).
· Must the community or social activities take place on the proposed licence area? (at [85]-[86]).

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 67.9 per cent, as well as a Reserve for the Use of and Benefit of Aborigines (CR 22032) at 29.9 per cent, and the Warburton Range Stock Route at 2.2 per cent. There is one exploration licence pending over the entire area, two miscellaneous licences pending (at 57.2 and 0.2 per cent respectively), as well as one live miscellaneous licence (L38/180) at 51.7 per cent. The Government party's further reply notes that they will impose a condition which requires the prior written consent of the relevant Minister before exploration activities can be commenced on Reserve CR 20032 (condition 8).
There are a number of dead tenements affected including 10 explorations licences granted between 1982 and 2006 and all now surrendered or expired which overlapped the proposed licence by between 1.7 per cent and 92.3 per cent respectively. There were eight mining tenements granted between 1972 and 1977 and now all surrendered or expired which overlapped the proposed licence by between 0.5 per cent and 4.8 per cent respectively. There are also two previously granted prospecting licences both granted in 1995 and both surrendered in 2006, which encroached on the proposed tenement by 1 per cent and 3.8 per cent respectively.
The quick appraisal documents shows the services affected in relation to this proposed licence are: one minor road; various tracks and a number of non-perennial minor water courses.
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 Licence 38/180 (if granted) being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
8. The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use and Benefit of Aborigines Reserve 22032.
9.   No exploration activities being carried out on Stock Route Reserve 24980 which restrict the use of the reserve.
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.
3. The grant of this licence does not include the land the subject of prior Exploration Licence 38/1000. 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”.
In regard to endorsement 3 (and the native title party’s contentions in reply at 3.3), the Government party states (in its reply at 6 and 13) that the differences between the April 2013 and the May 2013 quick appraisal's reflect the differences between the boundaries of the tenement applied for by the grantee party, which are shown in the earlier quick appraisal, and the boundaries of the proposed tenement as it is able to be granted, shown in the May quick appraisal. In particular, because E38/1000 has already been granted, if the proposed tenement is granted then the overlap between E38/1000 and the proposed tenement will be excised from the land to which the proposed tenement applies, which circumstance is shown in the May quick appraisal.
The Government party states in its contentions (at 18) that it will place the following Regional Standard Heritage Agreement (‘RSHA’) condition on the grant of the proposed licence:
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.

Grantee party

The grantee party addresses sub-sections (b) and (c) of s 237 in some detail, but does not appear to specifically deal with section 237(a) apart from quite broad contentions.
The grantee party maintain their offer to execute the RSHA which was originally made on 11 October 2011. They refer to their knowledge of the regulatory regime under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Commonwealth) and the Aboriginal Heritage Act 1972 (WA) (AHA) and that the grantee party has never been prosecuted under the AHA or accused of breaching the Act.
The grantee party ‘submits that its attitude to the protection of Aboriginal heritage and the steps that it is prepared to take to minimise the likelihood of interference with sites should be taken into consideration by the tribunal’ (at 11). However, this is more relevant to consideration of s 237(b) than to s 237(a) which is the subject of this determination. In relation to s 237(a), the grantee party submits the grant of the act is not likely to interfere directly with the carrying on of community or social activities. The grantee party states broadly that the conditions and endorsements to be placed on the proposed license ‘ensures the act is not likely to interfere with the carrying on of community and social activities by the native title party in relation to the area of land concerned’ (at 37) and that the grantee party intends to comply with all conditions.
In relation to community or social activities, the grantee party states the Tribunal ‘should also take into consideration past and present restrictions on these activities as a result of prior and current activities within the area’ (at 38) , which includes pastoral lease reserves, stock routes and 20 previous tenements. The Government party's further reply supports this approach, including stating there has been significant expenditure reported in respect of these past tenements (at 5 and 7). They do not provide any detail of that expenditure, however, such has been provided by the native title party in their reply (at 3.4 and annexures), where they state that yearly expenditure was minimal or nil on many tenements. From inspecting the annexures provided in support of that contention, it appears approximately two thirds of the granted tenements had minimal or no expenditure, and of those that did have expenditure, no information was provided in relation to the location, nature or extent of the previous activities, apart from the extent of overlap with the proposed licence, as outlined in the quick appraisal and at [17] and [18] above.
The grantee party suggests that ‘statements contained within the native title party’s contentions are too general and unsubstantiated to be given significant weight’ and they point to the fact that approximately one third of the total area of the proposed licenses is subject to a reserve (CR 22032). They also refer to the condition restricting exploration in absence of the ministerial consent which will be imposed over this area on grant.
The grantee party has not provided detail about its proposed activities, apart from listing some 'usual activities associated with exploration' (including field reconnaissance, mapping, hand auger drilling etc) (at 32), and states 'the work that is ground disturbing will be broad based and would only be considered minor disturbance' (at 32). As such, I 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

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 gives the Yilka People ‘the right of possession, occupation, use and enjoyment to the exclusion of all others’ and the non exclusive rights and interests where partial extinguishment has occurred (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
·that 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. Native title party contentions refer to Mr Murray’s affidavit and specifically that:
·There are several old camping areas ‘where ancestors of current registered native title claimants lived and camped’ (at 3.12a and Mr Murray’s affidavit at 9-10)
·There are Wiltjas [important area's] from these camps in the vicinity of the tenement (at 3.12b and Mr Murray’s affidavit at 11)
·The area is considered to be Ngurra country (at 3.12c 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 3.13a and Mr Murray’s affidavit at 7-9 and 13)
·There are regular hunting grounds for bush turkey, kangaroo, goanna and emu (at 3.13b and Mr Murray’s affidavit at 7)
·There are regular camping activities (at 3.13c 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 3.13d and Mr Murray’s affidavit at 34)
·There is intergenerational transfer of knowledge between members of the registered native title group (at 3.13e, 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 3.13f, 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 3.13g, 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 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 3.14b, 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 and Mr Murray’s affidavit at 16-18, 20, 24, 31 and 34-35)

Significant 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) which is an important area, and he has been going there since he was a baby, travelling and camping. There is also various cultural exchanges of information around and within 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). Also important for the younger generation is that near the proposed licence is part of his ngurra (at 18). He talks about a track that has been interfered with near proposed licence but, again, there is no information to suggest grantee party involvement (at 25-27).
Importantly he 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). He sees this as being an important statement about the need to care for the area of the proposed license.
In his statement, 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]).
As the Full Court of the Federal Court has noted, 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]).
Mr Calderwood’s evidence has not been challenged. Applying the principles outlined in this decision at [36]-[37], 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 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 outlines the process for fulfilling the Yilka Peoples responsibilities for looking after country (at 10 and 11). He outlines concerns regarding a number of tracks south of the tenement which appeared to indicate 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

Community or social activities

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 [25]-[29] above.
The native title party’s contentions and evidence in relation to s 237(a) are outlined at [30-34] and [38] above.
The native title party’s affidavit material is outlined in Annexure A and B of this decision.
The Government party submits there is no evidence to suggest the grantee party will not act in accordance with its obligations under the AHA and that it has attempted to negotiate an RSHA. The Government party outlines the endorsement on conditions on the proposed license, including the condition requiring the prior written consent of the Minister for the Mining Act before any exploration on Reserve CR22032 can be undertaken (which covers approximately one third of the proposed licence), and a condition prohibiting exploration on Reserve 24980 (although I note this only affects 2.2 per cent of the land). The Government party states the native title party’s concerns are ‘not ... sufficient to overcome the assumption that the grantee party will comply with the relevant regulatory regime’.
The Government party states that Mr Murray’s concerns regarding interference with community or social activities ‘appear speculative rather than arise from knowledge of what the grantee party intends to do’ (at 30). The grantee party states that in respect of s 237(a), interference with community or social activities must be substantial and not trivial and that spiritual activities are within scope of section 237(a) ‘only when the activities are rooted in physical activities’ (at 39, and Silver at [49] – [62]).
The Government party states that the Tribunal should have regard to previous exploration and pastoral activity, and point to the fact that there are no aboriginal communities in the area and state that this ‘is relevant and important consideration for the Tribunal’ (at 44). The native title party in their reply state that there is a community within the relevant area, and that is the Yilka community, whose native title claim overlaps the proposed licence (at 3.6). I agree with the Government party reply in relation to this, where they state (at 8) that 'there is no evidence that there is a geographically localised group residing on land subject to the proposed tenement'.
The Government party contentions state that ‘the activities of the grantee party do not appear likely to have any real disruptive affect upon the native title party activity in the proposed tenement area’ (at 47f). However, I do note that the grantee party have not specifically outlined what activity it intends to do – they have not provided any information, apart from, in the broadest terms as outlined at [29] above, so I have looked at this matter with the view that the grantee party may exercise their full suite of rights under s 66 of the Mining Act.
The Government party state that the Tribunal should not accept ‘any suggestion that the grant of the tenement will restrict the access of members of the native title party’ to the proposed license (at 47h). However, I note that the native title party do not actually contend this, rather they contend that the grantee party encroaching on the proposed license is likely to interfere with community and social activities.
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 such as social and community activities occur on 'our country', or 'all through the area', or 'in and around the tenement', and such statements and evidence are not sufficient to enable me to conclude that certain social or community activities occur only on or near this proposed licence, or that they occur to an extent that they would 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 in their claim area, the evidence in relation to this particular proposed licence is general;
That endorsements and conditions will be applied to the proposed licence;
That approximately one third of the proposed licence is covered by an Aboriginal Reserve;
That the claim area is approximately 12,263 square kilometres and the grantee party’s proposed activities within the proposed licence, in the context of the size of the native title claim area, makes it unlikely that the exploration activity, even should that activity be to the full extent allowed under the grant, will interfere with the community or social activities described by the native title party;
Pastoral activities do not appear to have affected the area although exploration activities do appear to have been intensive in parts of the proposed licence - while there is no specific evidence of the degree of interference of past activities, 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.

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 E38/2610 to Sammy Resources Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
31 July 2013

ANNEXURE A
AFFIDAVIT OF HARVEY MURRAY

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

I am a traditional owner for the country covered by tenement E38/2610 (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

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 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 E38/2610 (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.