Josephine Forrest & Ors on behalf of Yi-Martuwarra Ngurrara; Butcher Wise & Ors on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd

[2013] NNTTA 100

NATIONAL NATIVE TITLE TRIBUNAL

Josephine Forrest & Ors on behalf of Yi-Martuwarra Ngurrara; Butcher Wise & Ors on behalf of the Kurungal Native Title Claimants; Gooniyandi Aboriginal Corporation/Western Australia/Brockman Exploration Pty Ltd [2013] NNTTA 100 (29 July 2013)

Application No:               WO2012/0924, WO2012/0926, WO2012/0943

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into expedited procedure objection applications

Josephine Forrest and Others on behalf of Yi-Martuwarra Ngurrara (WC2012/002) (Yi-Martuwarra Ngurrura native title party)

- and –

Butcher Wise and Others on behalf of the Kurungal Native Title Claimants (WC1997/101) (Kurungal native title party)

- and –

Gooniyandi Aboriginal Corporation RNTBC  (Gooniyandi native title party)

- and –

The State of Western Australia (Government party)

- and -

Brockman Exploration Pty Ltd (grantee party)

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

Tribunal:  Helen Shurven, Member

Place:  Perth
Date:  29 July 2013

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

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

Aboriginal Heritage Act 1972 (WA)
Mining Act 1978 (WA)

Cases:Butcher Wise & Others on behalf of the Kurungal Native Title Claimants; Butcher Cherel & Others on behalf of the Gooniyandi Combined 2 Native Title Claimants/Western Australia/Cullen Exploration Pty Ltd, [2010] NNTTA 70 (20 May 2010), ('Butcher Wise')

BW (deceased) and Others on behalf of Bunuba/Western Australia/Callum Baxter, [2012] NNTTA 32, (‘Baxter’)

Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo & Jabirr Jabirr Peoples/Western Australia/Kimberley Quarry Pty Ltd [2008] NNTTA 118 at [25], (‘Kimberley Quarry’)

Champion v Western Australia (2005) 190 FLR 362, ('Champion')

Daisy Lungunan and Others on behalf of the Nyikina and Mangala People/Western Australia/Areva Resources Australia Pty Ltd (formerly AFMECO Mining & Exploration Pty Ltd) [2013] NNTTA 74, ('Daisy Lungunan')

Dann v Western Australia (1997) 144 ALR 1, (‘Dann’)

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, ('Little')

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

Mark Lockyer and Others on behalf of Kuruma Marthudunera combined/Western Australia/Brockman Iron Pty Ltd [2010] NNTTA 106, (‘Brockman Iron’)

Mark Lockyer and Others on behalf of Kuruma Marthudunera (Combined)/Western Australia/Iron Duyfken Pty Ltd [2012] NNTTA 1, (‘Iron Duyfken’)

Paddy Neowarra and Others on behalf of Wanjina/Wunggurr-Wilinggin/Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Swancove Enterprises Pty Ltd [2007] NNTTA 11 at [22], (‘Swancove Enterprises’)

Parker on behalf of the Martu Idja Banyjima People v Western Australia [2007] FCA 1027, ('Parker 1')

Parker v Western Australia (2008) 167 FCR 340, ('Parker 2')

Rosas v Northern Territory (2002) 169 FLR 330, ('Rosas')

Sharpe v Western Australia [2013] FCA 599, (‘Sharpe’)

Silver v Northern Territory (2002) 169 FLR, ('Silver')

Smith v Western Australia (2001) 108 FCR 442, ('Smith')

Walley v Western Australia (2002) 169 FLR 437, ('Walley')

Ward v Western Australia (1996) 69 FCR 208 at 233, ('Ward')

Western Australia/Glen Derrick Councillor and Others on behalf of the Naagaju Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd [2010] NNTTA, (‘Bayform Holdings’)

Wilfred Goonack and Others on behalf of Uunguu/Western Australia/Geotech International Pty Ltd and Timothy Vincent Tatterson [2009] NNTTA 72, (‘Goonack’)

Representatives of the     Ms Barbra Friedewald, Kimberley Land Council

native title party              Ms Danica Trewern, Kimberley Land Council

Representatives of the     Ms Caitlin Martin, State Solicitor’s Office

Government party          Ms Bethany Conway, Department of Mines and Petroleum

Representatives of the     Mr Kevin Connell, Austwide Mining Title Management Pty Ltd
grantee party                   

REASONS FOR DETERMINATION

1. On 13 June 2012, the State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘NTA’, ‘the Act’) of its intention to grant exploration licence E04/2190 (‘the proposed licence’) to Brockman Exploration Pty Ltd (‘the grantee party’). The notice included a statement that the Government party considered the grant to attract the expedited procedure (that is, that the proposed licence is an act that can be done without the normal negotiations required by s 31 of the Act).

2. The proposed licence is located in the Shire of Derby-West Kimberley and comprises an area 127 graticular blocks (approximately 412 square kilometres) situated 67 kilometres south of Fitzroy Crossing. At the closing date for objections to the expedited procedure, the proposed licence was subject to the following registered native title claims:

   ·Kurungal (WC1997/101 – registered from 1 December 1997), overlapping 49.14 per cent of the proposed licence area - this overlap extends along the entire north border of the proposed licence, and then takes up the entire south easterly portion.

   ·Yi-Martuwarra Ngurrara (WC2012/002 – registered from 29 February 2012), overlapping 36.03 per cent of the proposed licence area - this overlap extends along much of the south western border and into approximately the centre of the proposed licence.

   ·Gooniyandi Combined 2 (WC2000/010 – registered from 23 April 2001), overlapping 14.77 per cent of the proposed licence area - this is the smallest overlap, running centrally between the Yi-Martuwarra Ngurrara and Kurungal overlaps from the northwest through approximately the first third of the proposed licence. I note that native title has since been determined to exist in the Goonyandi overlap area (see Sharpe).

3. Together, the registered claims and determination areas overlap the proposed licence by 99.94 per cent, and each overlap is discrete in itself (that is, none overlap each other). 

4. Expedited procedure objection applications in relation to this proposed licence were made as follows:

   ·Butcher Wise and others on behalf of the Kurungal native title claimants (‘Kurungal native title party’) on 31 July 2012 (designated as WO2012/926);

   ·Josephine Forrest and others on behalf of the Yi-Martuwarra Ngurrara native title claimants (‘Yi-Martuwarra Ngurrara native title party’) on 13 August 2012 (designated as WO2012/924);

   ·Dora Sharpe and others on behalf of the Gooniyandi Combined 2 Native Title Claimants (‘Gooniyandi native title party’) on 16 August 2012 (designated as WO2012/943). Since the determination by the Federal Court in Sharpe that the Gooniyandi Combined 2 native title claimants hold native title in respect of the relevant area, their native title rights and interests (and consequently, their procedural rights under Division 3 of the Act) are held by the Gooniyandi Aboriginal Corporation RNTBC.

5. Each native title party was represented in the proceedings by the Kimberley Land Council (‘KLC’). For convenience and where appropriate, I refer to them collectively as ‘the native title parties’.      

6. The Tribunal gave directions for parties to provide contentions and evidence for an inquiry to determine whether or not the proposed licence attracts the expedited procedure. These directions allowed a period after the objection lodgement closing date for parties to discuss the possibility of reaching an agreement, which could lead to the disposal of the objection by consent. At a preliminary conference held on 9 October 2012, the grantee party indicated that it wanted to defer negotiations with the native title parties until their other matters that were then before the Tribunal had been resolved. At a further preliminary conference held on 4 December 2012, the grantee party informed the Tribunal that it wished to proceed to inquiry, though it agreed to consider a heritage protection agreement offered by the native title parties and provide comments with a view to settling the matter.

7. On 19 December 2012, I was appointed by then President Graeme Neate as the Member for the purposes of conducting the inquiry.

8. The grantee party did not attend a subsequent conference held on 30 January 2013, and the native title parties informed the Tribunal that they had not been contacted by the grantee party.  The Tribunal set directions for inquiry.

9. In accordance with the directions, the Government party, through the Department of Mines and Petroleum ('DMP'), provided documents relating to the proposed licence on 22 March 2013. Following receipt of the Government party’s documents, the KLC wrote to the Tribunal to advise it had been unable to schedule a meeting with the Yi-Martuwarra Ngurrara native title party until the end of April, and requested an extension to directions to allow it to collect evidence for the inquiry. I granted the extension.

10. The Kurungal and Gooniyandi native title parties provided their submissions on 2 April 2013, which were accompanied by the affidavit of Ms Topsy Chestnut, affirmed on 28 March 2013. The Yi-Martuwarra Ngurrara native title party submissions were received on 19 April 2013, and accompanied by the affidavit of Mr Ned Cox, affirmed on 17 April 2013.    The grantee party provided a statement of contentions in relation to each of the matters on 9 April 2013, and the Government party, through the State Solicitor's Office ('SSO'), provided one statement of contentions in relation to WO2012/924, and another in relation to WO2012/926 and WO2012/943, on 14 May 2013. All parties’ contentions are very similar in relation to each of the objections.

11. The KLC indicated to the Tribunal by email on 28 May 2013 that the native title parties had no further submissions to make and were satisfied the matter could be determined ‘on the papers’ (that is, without a formal hearing). At the listing hearing on 30 May 2013, the grantee and Government parties confirmed the same approach and I proceeded in that fashion.     

12. On 18 June 2013, the Tribunal sent all parties a copy of a map created by the Tribunal's Geospatial Services, dated 13 May 2013, indicating that it would be relied upon for the determination of this matter.  No objection was provided by parties to this course of action.

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. In Walley, the Hon C J Sumner, Deputy President, considered the applicable legal principles (at [7]–[23]). I adopt those findings for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence, including conditions to be imposed, I adopt the Tribunal’s findings in Tarlpa at [10]-[16].

4. In relation to s 237(a), I adopt the Tribunal’s findings in Tarlpa on the following matters:

   ·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]). Deputy President Sumner 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]).

5. With respect to issues arising under s 237(b), I adopt the findings of the Tribunal in Maitland Parker at [31]–[38], [40]-[41] (see also Parker 1 and Parker 2).  I also adopt the findings of Deputy President Sosso in Silver.

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 the definition of what constitutes ‘major disturbance’ should be determined by reference to what is likely to be done, rather than what could be done (see Little, in particular [41]-[57]).

Evidence in relation to tenure, endorsements and conditions

1. DMP provided the following documents for the Government party in relation to the proposed licence:

   ·A Tengraph plan with topographical details, tenement boundaries, historical land tenure and Aboriginal communities within and in the vicinity of the proposed licence.

   ·Reports and plans from the Aboriginal Sites Database maintained by the then named Department of Indigenous Affairs (‘DIA Database’) (now the Department of Aboriginal Affairs).

   ·Copies of the tenement application and the proposed endorsement and conditions of grant.

   ·The instrument of licence and first schedule listing the land included and excluded from the grant.

   ·A Tengraph Quick Appraisal detailing the land tenure, current and historical mining tenements, native title areas, and relevant services and other features within the proposed licence.

2. The Quick Appraisal documentation establishes the underlying tenure of the proposed licence which includes:

   ·Pastoral lease 3114/1257 (Christmas Creek) overlapping at 57.8 per cent.

   ·Pastoral Lease 398/810 (Gogo) overlapping at 42.1 per cent.

   ·Pastoral Lease (Christmas Creek) Exclusion Area (2015) overlapping at less than 0.1 per cent.

   ·Historical lease 396/448 overlapping at 54.1 per cent.

   ·Historical lease 396/446 overlapping at 27.1 per cent.

   ·Historical lease 396/442 overlapping at 18.8 per cent.

   ·Crown Reserve 35196 (use and benefit of Aboriginal inhabitants) overlapping at 0.1 per cent.

   ·One parcel of Vacant Crown Land overlapping at less than 0.1 per cent.

   ·One parcel of Road Reserve overlapping at less than 0.1 per cent.

3. The Quick Appraisal shows that the proposed licence area is currently subject to petroleum exploration permit application and has previously been subject to the following mineral tenure:

   ·Three exploration permits granted between 1984 and 1992, and expired or surrendered between 1988 and 1993, overlapping at 8.7, 4.9 and 0.1 per cent respectively.

   ·One mineral lease granted in 1992 and forfeited in 1994, overlapping at less than 0.1 per cent.

   ·45 mineral claims granted between 1978 and 1981 and surrendered, expired or cancelled between 1979 and 1982, overlapping at between 0.3 and less than 0.1 per cent.

   ·Two prospecting licences granted in 1993 and 1996 and surrendered in 1995 and 1998 respectively, both overlapping at less than 0.1 per cent.

   ·Six temporary reserves granted between 1920 and 1981 and cancelled between 1921 and 1982, overlapping at between 100 and 4.1 per cent.

1. The Quick Appraisal indicates that the services affected by the proposed licence include: SSM-T 229 (a Standard Survey Mark for a geodetic survey station); one major road; 11 minor roads; 23 tracks; one building (Dusty Outcamp); six fence lines; three yards (including Bruten and Box Hole); one feature identification dot (Bruten Hill); two wells/bores with windmills (Chestnut and Hot Spring); one cliff/breakaway/rockridge; eight major non-perennial watercourses (including Christmas Creek and 6 Mile Creek); 32 minor non-perennial watercourses (including Christmas Creek); and four springs/soaks/rockholes/ waterholes (including Coonangoody Pool and Long Hole Billabong). The Quick Appraisal also shows that 29.7 per cent of the proposed licence area is subject to a National Heritage Listing (NHL/106063, ‘The Kimberley’)

2. The report from the DIA Database shows there are nine sites registered under the Aboriginal Heritage Act 1972 (WA) (‘AHA’) within the proposed licence:

   ·Tjilatji/Christmas Creek – Site ID 12647 – open access – no restrictions – mythological, skeletal material/burial.

   ·Mandimalan – Site ID 12689 – open access – no gender restrictions – mythological – water source.

   ·Chestnut Bore – Site ID 13008 – open access – no gender restrictions – skeletal material/burial.

   ·Ngumpan Community – Site ID 13223 – closed access – no gender restrictions – ceremonial.

   ·Baidbarra – Site ID 13433 – closed access – no gender restrictions – mythological, man-made structure.

   ·Worrbirrba – Site ID 13438 – open access – no gender restrictions – mythological, quarry.

   ·Long Hole Billabong – Site ID 13440 – open access – no gender restrictions – ceremonial, mythological.

   ·Bruten Hill – Site ID 13441 – open access – no gender restrictions – mythological.

   ·Nipper Creek – Site ID 13991 – closed access – no gender restrictions – mythological.

3. The report did not include a list of ‘other heritage places’ within the proposed licence. However, the Tribunal generated its own report from the DIA Database, which listed the following 'other heritage places':

   ·Luraypa – Site ID 12654 – open access – no gender restrictions – named place – insufficient information.

   ·Gandibal – Site ID 13442 – open access – no gender restrictions – mythological – camp, water source – insufficient information.

   ·Wangeba – Site ID 13444 – open access – no gender restriction – mythological – water source – insufficient information.

   ·Christmas Creek Area – Site ID 14413 – open access – no gender restriction – painting – insufficient information.

4. As no party specifically referred to these sites in terms of their status as 'other heritage sites', I merely note this information and nothing turns on it in terms of this decision.

5. A draft Tenement Endorsement and Conditions Extract included with the Government party documentation indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa at [11]). Additional conditions are to be imposed as follows:

   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 requirement 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.No interference with Geodetic Survey Station T 229 and mining within 15 metres thereof being confined to below a depth of 15 metres from the natural surface.

   8.No excavation, excepting shafts, approaching closer to the Great Northern Highway, Highway verge or the road reserve than a distance equal to twice the depth of the excavation and mining on the Great Northern Highway or Highway verge being confined to below a depth of 30 metres from the natural surface, and on any other road or road verge, to below a depth of 15 metres from the natural surface.

   9.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on Use & Benefit of Aboriginal Inhabitants Reserve 35196.

1. 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 to the provisions of the Aboriginal Heritage Act 1972 and any Regulations thereunder.

   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 licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron.

   In respect to Water Resource Management Areas (WRMA) the following endorsements apply:

   4.The Licensee’s attention is drawn to the provisions of the:

   ·      Water Conservation Act, 1976

   ·      Rights in Water and Irrigation Act, 1914

   ·      Metropolitan Water Supply, Sewerage and Drainage Act, 1909

   ·      Country Areas Water Supply Act, 1947

   · Water Agencies (Powers) Act 1984

   · Water Resources Legislation Amendment Act 2007

   5.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes.

   6.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing.

   In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

   7.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by DoW.

   In respect to Waterways the following endorsement applies:

   8.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   ·      50 metres from the outer-most water dependent vegetation of any perennial waterway; and

   ·      30 metres from the outer-most water dependent vegetation of any seasonal water.

   In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:

   9.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by DoW.

   10.All activities to be undertaken with minimal disturbance to riparian vegetation.

   11.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with the current licence to take surface water or permit to obstruct or interfere with beds or banks issued by the DoW.

   12.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

   In respect to Proclaimed Ground Water Areas the following endorsement applies:

   13.The abstraction of groundwater is prohibited unless a current licence to construct/alter a well and a licence to take groundwater has been issued by the DoW.

2. The Government party’s contentions state that ‘consideration is also being given to imposing a condition enabling the Native Title Party to ask the licensee to enter into a heritage agreement’ (at paragraph 17), however, the form of that condition is not specified.

3. In addition, the Government party's contentions refer to the proposed licence being overlapped by the Kurungal, Nyikina Mangala, and Gooniyandi native title claims - however, the Nyikina Mangala claim is to the east of the proposed licence and (as outlined at [2] of this decision) is not one of the claims which overlaps the area. Reference does not appear to be made to the Yi-Martuwarra Ngurrura overlap.

4. The Government party's contentions are referred to as needed in the consideration of evidence and submissions for each sub-section of s 237 of the Act.

Grantee party evidence

1. The grantee party provided a signed statement outlining that it 'has applied for the ground which is considered geologically prospective for coal and other minerals'.  The grantee party does not describe the nature of its intended activities or how it intends to exercise the rights granted under the proposed licence, apart from in a general way, referring to: being aware of their statutory obligations; intending to comply with those obligations; that they will closely liaise with the native title parties; and they will negotiate a Heritage Protection Agreement prior to 'ground disturbing' activities, which activities are not defined. 

2. The grantee party also states that the proposed licence 'is situated on ground that has been the subject of previous mining tenements and historic exploration activity by other explorers over many years'.  However, I note that, these particular past activities overlapped the proposed licence by no more than 8.7 per cent for each of the dead tenements (see [21] above).

3. I infer that the grantee party will exercise the rights granted under the proposed licence to their full extent, in the absence of any particular information to the contrary (see Silver at [25]-[32]).

The Native Title Party Affidavit Evidence

1. The Kurungal and Gooniyandi native title parties rely on the affidavit of Ms Chestnut, and the Yi-Martuwarra Ngurrara native title party relies on the affidavit of Mr Cox. The affidavits are reproduced at Annexures A and B of these reasons. Reference to this evidence is outlined below, as needed.

2. Ms Chestnut states that she is a senior member of the Kurungal native title claim. Ms Chestnut also states that her mother’s parents were Gooniyandi people, and she is also a member of the Gooniyandi Combined 2 claim.  Mr Cox acknowledges that there are other people who are better placed to talk for the country covered by the proposed licence, but further states he was taught all the cultural law stories for the land around Christmas Creek, where the proposed licence is situated. He appears to predominantly speak to the Yi-Martuwarra Ngurra claim area.  On this basis, I accept that Ms Chestnut and Mr Cox have the necessary authority to give evidence on behalf of the native title parties concerned.

Considering the evidence

Community or social activities - s 237(a)

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the licence is 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 account of other factors that may have already had an impact on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith at [27]).

2. The native title parties contend that the grant of the proposed licence is likely to interfere directly with the carrying on of community or social activities which are a manifestation of claimed native title rights and interests.

3. In relation to the overlap with Kurungal and Gooniyandi, Ms Chestnut gives the following evidence regarding community or social activities carried on in and around the proposed licence area:

   ·Ngalingkadji community is ‘very close’ to the proposed licence area and people from the community use the area ‘all the time’ - the proposed licence would ‘at some points’ be less than five kilometres from Ngalingkadji (paragraph 11).

   ·Ms Chestnut goes out to the proposed licence area on a weekly basis, if not more (paragraph 12).

   ·Young people in the Ngalingkadji community go out to the proposed licence area ‘all the time’, sometimes after school and sometimes on the weekend, but would be out there ‘every weekend’ - young boys go swimming in Christmas Creek after school three or four times a week, and go hunting and fishing on weekends (paragraphs 12-13).

   ·Christmas Creek is:

   oa very important area for the Ngalingkadji community and is used as a primary source of food for the community (paragraph 14); and

   oa sensitive area for native plants and animals (paragraph 15).

   ·Members of the Ngalingkadji community:

   otake young people out to Christmas Creek to teach them about Country (paragraph 14);

   oconduct ceremony in the proposed licence area, including at Ngumpan (paragraph 14);

   osometimes go out to the proposed licence to camp for days at a time, and other times drive out from the community for the day (paragraph 16);

   ocamp along Christmas Creek, but not in one particular place (paragraph 17);

   ouse Christmas Creek for drinking and cooking water while camping (paragraph 18);

   ocollect wood from around Christmas Creek while camping (paragraph 19);

   ogo hunting for a variety of animals, including kangaroo, goanna, snake, bush turkey and emu (paragraph 20);

   ouse the proposed licence to fish for bream, perch, archerfish, catfish, barramundi and sawfish, as well as cherabun, long-necked turtles and sand frogs (paragraph 25);

   ocollect a variety of bush tucker and medicine from the proposed licence area, including conkerberry, blackberry, bush plum, fig varieties, yams, bush carrots, lily roots, tree sap and bushes (paragraphs 31-41, 44-46); and

   ocollect ochre from the proposed licence area for use in ceremony (paragraph 43). 

   ·Ms Chestnut:

   oteaches young boys and girls to collect moon grubs, grasshoppers and small frogs for bait while fishing in the proposed licence area (paragraph 23);

   otakes young girls out to the proposed licence ‘as much as [she] can’ to teach them how to catch food and to tell them stories as part of her responsibility to her culture (paragraph 24); and

   ostates that it is ‘much more difficult for us to camp, hunt and fish’ if people are out in the proposed licence area, especially with the use of guns - equipment brought in by exploration companies might damage and block roads (paragraph 29).

   ·There is a type of tree called ‘jarlaloo’ that grows in the proposed licence area, which is best around Chestnut Bore (paragraph 45).

4. Mr Cox gives the following evidence regarding community or social activities carried on in and around the proposed licence area:

   ·Wangkatjunka community is ‘right underneath’ the proposed licence area, which also overlaps Christmas Creek station and Beefwood Station (paragraph 12).

   ·The Yi-Martuwarra Ngurrara people used to live, camp and hunt all over the proposed licence area (paragraph 14).

   ·Part of the proposed licence area is covered by a pastoral lease, the holder of which does not allow people from the community to enter the proposed licence area (paragraph 14).

   ·There are Walmajarri language words for many places in and around the proposed licence area (paragraph 15).

5. In addition to the specific activities referred to in the affidavit evidence, the native title parties also make the following submissions in relation to community or social activities carried on by the native title holders:

   ·Members of the native title parties belong to the country within the proposed licence area (referring to paragraphs 1-10 of Ms Chestnut’s affidavit).

   ·The proposed licence area is on land connected to the native title parties (referring to paragraph 13 of Mr Cox’s affidavit).

   ·Members of the native title parties have ancestors and family who are buried within the proposed licence area.

   ·Members of the native title parties look after Aboriginal burial places and sites of importance and significance within the proposed licence area (referring to paragraphs 3, 6-8, 15, 43, 52 and 53 of Ms Chestnut’s affidavit).

1. The Government party accepts that many of the activities referred to in Ms Chestnut’s affidavit are actually carried on in the proposed licence area, namely that members of the community visit the area, hunt and fish, collect bush tucker and medicine, and sometimes perform ceremonies. However, the Government party (at paragraph 44) does not accept that having ancestors buried in the proposed licence area, belonging to the country and having the responsibility to look after and protect it, relying on traditional foods and products or passing on inter-generational knowledge are ‘activities’ to which s 237(a) applies. In relation to Mr Cox’s affidavit, the Government party adds that it also does not accept that the use of Walmajarri words, or the fact that a community exists close to the proposed licence area, are activities of the kind to which the Tribunal may have regard.

2. I accept the Government party’s submissions as they relate to the use of Walmajarri words and the idea of belonging to country. Section 237(a) is concerned with activities, and the Tribunal may only have regard to a concept such as belonging to country to the extent that it has a physical element that may be interfered with (see Silver). Similarly, the Tribunal may only take into account the existence of burial sites if there is evidence that activities are carried on by the native title holders in relation to those sites. In the present matter, the affidavit evidence indicates that members of one or more of the native title parties do perform social and community activities related to the ancestor’s burial sites.

3. While 'reliance' on traditional foods and other products is not an activity as such, it is relevant because it indicates the extent to which the native title parties use the land or waters concerned for activities related to the hunting and gathering of food and medicines, which in turn affects the likelihood of direct interference with their community or social activities. In the same way, the fact that the proposed licence is bordered by two communities, with another very nearby, is also relevant, as it suggests that the area is used more frequently than would otherwise be the case if there were no communities in the vicinity, or if the communities were further away from the proposed licence area than they are. In the present case, it appears that the Ngalingkadji, Ngupam and Wangkatjungka communities are all within approximately 1-10 kilometres from the proposed licence.

4. In relation to the Government party’s submission regarding the passing on of inter-generational knowledge, I do not accept that this cannot constitute an activity within the meaning of s 237(a). In the present case, Ms Chestnut states that knowledge is passed on by showing children how to do certain things and by telling them stories in certain places in relation to the proposed licence. It is clear that these are activities, and it would be artificial to exclude them from the ambit of s 237(a).

5. The Government party argues (at paragraph 45) that Mr Cox's affidavit shows that camping and living in the area are activities carried on by past ancestors, not in the present.  However, Ms Chestnut's evidence clearly points to contemporaneous camping, as well as social and community activities conducted by herself and other members of her  community. The Government party refers to the fact that Mr Cox’s evidence suggests native title holders have been excluded from the proposed licence by the holder of one of the pastoral leases that overlap the area. Although Mr Cox does not identify the pastoral lease, he refers to areas on and around the Wangkatjungka Community, to the south east of the proposed licence, and it is reasonable to infer that he is referring to the pastoral lease which covers 57.8 per cent of the proposed licence, in the eastern portion of the proposed licence.  The other pastoral lease is in the western portion of the proposed licence, the area with which Ms Chestnut appears most familiar.  As such, the attitude of that pastoral lessee is less likely to have affected the activities of native title holders residing in the Ngalingkadji Community which is to the north west of the proposed licence.

6. Though I am entitled to have regard to the fact that less than 0.1 per cent of the area is unallocated Crown land, and that the lawful exercise of the rights and interests of pastoral lessees will have interfered to some extent with the community or social activities of the native title holders (see Tarlpa at [122]), Ms Chestnut’s evidence suggests that pastoral activity has not had a significant effect on the exercise of native title holders’ rights and interests.

7. The Government party also outline that prior exploration and mineral tenements have been granted in the same area as the proposed licence in the past, however, as noted above, those overlaps were 8.7 per cent or less for each tenement, and no evidence has been lead about the nature or extent of the past activities.

8. The Government party makes much of the fact that 'there are no Aboriginal communities (in the sense of a geographically localised group of persons) in the relevant area’, which it describes as ‘a relevant and important consideration for the Tribunal' (at 41). However, the Government party do not expand on this point, and do not refer to the three communities which are very nearby the proposed licence, to the north, east and south, and already referred to in this decision.  Mr Cox speaks about the Wangkatjunka Community and he lives at Fitzroy which is 50 kilometres from the proposed licence. Ms Chestnut lives at Nagalingkadji (the community to the north).  Ms Chestnut also affirms that others from her community perform activities on the proposed licence.  As outlined in Silver (at [59]):

   As native title is communal, if evidence is adduced which is not rooted in the collective experiences of a geographically localised group of persons, then material would need to be presented to identify these individuals as a community and then to demonstrate the native title dimensions of this community of persons.

9. Looking at Ms Chestnut's affidavit, the activities she outlines relate to the culture and society of the Kurungal and Gooniyandi native title claimant communities. It is clear that she lives near the proposed licence, and that other people she considers to be members of her 'community' also use the proposed licence extensively (weekly, 'if not more').  This includes men, women, boys and girls. 

10. The native title parties submit that the mere existence of the grantee party on the proposed licence, in circumstances where there has been no negotiation or consultation between the native title party and the grantee party, could be likely to give rise to direct interference notwithstanding the absence of any direct physical interference. In support of that submission, the native title party sought to rely on the comments of Carr J in Ward (at [233]), where he stated:

    The very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting groups ten kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed at the thought of such activities.

11. As the Tribunal has noted elsewhere, Carr J’s statement is no longer applicable following the 1998 amendments which substituted the words ‘carrying on of the community or social activities’ for ‘community life’ in s 237(a) (see for example Swancove Enterprises at [22]; Kimberley Quarry at [25]; Baxter at [36]). These authorities make it clear that feelings of distress or concern will not be sufficient to trigger s 237(a). Rather, what is required is evidence that the proposed licence is likely to interfere directly with the native title holders’ community or social activities in a substantial or more than trivial way. There is evidence of that in the present case.

1. This is also consistent with the observations of Hon C J Sumner, Deputy President, in Butcher Wise, where he considered an exploration licence covering almost two-thirds of the proposed licence area. For example, (at [36]), he states:

   The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place. Usually, given the nature and extent of a native title party’s community or social activities, the Tribunal has found that, because of its relatively limited nature, exploration activity is not likely directly to interfere with these activities except in an incidental and insubstantial way. However, each case must be evaluated on its merits, taking account of the particular facts. In my view, despite the factors just referred to, the nature and intensity of the community and social activities are such that there is likely to be direct interference with them by the grant of the proposed licence and exploration activities undertaken. Importantly in this case there are two established Aboriginal communities abutting the proposed licence and a number more in the very near vicinity.

2. In the present matter, the native title parties, in particular the evidence of Ms Chestnut, detail the types of community and social activities which are carried out on and near the proposed licence, as well as who performs those activities, how often, their relationship to the local native title party communities, and why some of the activities cannot so easily be done in areas outside of the proposed licence. I have no doubt of the grantee party's intention to consult with the native title parties, however, without more information about the nature and extent of that consultation, and in the absence of a specific condition relating to heritage that would be imposed on the grant, it is difficult to draw more firm conclusions on this point. The grantee party has provided little information about the nature and extent of its proposed activities.  In conclusion, I find that the grant of the proposed licence is likely to interfere directly with the carrying on of the native title holder’s community or social activities.          

Sites of particular significance - s 237(b)

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted above at [23] – [24], extracts from the DIA Database establish the existence of nine registered sites and four ‘other heritage places’ within the proposed licence. This does not necessarily mean that these sites are of particular significance to the native title holders, and there may be other significant areas or sites in the area that have not been recorded. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters.

2. Ms Chestnut provides the following evidence in relation to areas or sites of particular significance to the native title holders:

   ·Christmas Creek and the area around it were very important to Ms Chestnut’s old people (paragraph 49).

   ·There are several ceremony sites along Christmas Creek - most ceremony takes place at Ngumpan, but there are several sites along the creek that are used for that purpose (paragraphs 52-53).

   ·Chestnut Bore is a special burial place and birth place for Ms Chestnut’s brother (paragraph 54).

   ·There are sites like Chestnut Bore throughout the proposed licence area (paragraph 54).

   ·There are places throughout the proposed licence area that the old people told them to look after (paragraph 55).

   ·There is a dreaming story about the rainbow serpent around Ngumpan Community, and there are a lot of stories for him right through Christmas Creek as well as other creeks and water holes (paragraph 56).

   ·There are artefacts throughout the proposed licence area (paragraph 57).

1. Mr Cox states the following on the issue of areas or sites of particular significance:

   ·There are places in the proposed licence area that are important to the Yi-Martuwarra Ngurrara people (paragraph 16).

   ·The Yi-Martuwarra Ngurrara people have stories for parts of the proposed licence area (paragraph 17).

   ·There is a dreaming story (Jangagana) involving fish that swim along Christmas Creek to Tukulpun, which lies south-east of the proposed licence (paragraph 18).

   ·There is a burial site in the proposed licence area along Christmas Creek called Mingin, which is located near Christmas Creek Station (paragraph 20).

   ·There are burial sites around Bruten Hill (paragraph 21).

   ·There is an important cultural story called the Baliyarra story that travels along a ‘flat old road’ within the proposed licence area (paragraph 23).

   ·There is a special story about an island in the middle of the creek which is marked inside the proposed licence area, but which he could not tell the person recording his evidence (paragraph 24).

   ·There are other special places within the proposed licence that are not listed on the Register of Aboriginal Sites (paragraph 25).

1. In response to submissions made on behalf of the Yi-Martuwarra native title party, the Government party argues that Mr Cox’s evidence is not sufficient to demonstrate that it is a site of particular significance. However, in its reply to the submissions made on behalf of the Kurungal and Gooniyandi native title parties, the Government party says it accepts that the length of Christmas Creek within the proposed licence area is a site of particular significance based on the evidence of Ms Chestnut.

2. Nevertheless, the Government party contends that interference is not likely as the grantee party is aware that Christmas Creek may be a site of particular significance to the native title holders and understands its legal obligations in respect of the site. The Government party also accepts that the identified burial sites, such as Chestnut Bore, Bruten Hill and Mingin are sites of particular significance, but does not accept the evidence establishes that the other sites referred to constitute areas or sites of particular significance.

3. In regard to the native title parties’ contention that the proposed licence is located in an area that is site rich, I refer to and adopt the principles I outlined in Daisy Lungunan (at [71]-[72]). The concept of 'site rich' is not particularly helpful in relation to s 237(b) matters, apart from perhaps alerting parties to the notion that a party considers there are numerous, significant sites in an area. What is crucial to a consideration of s 237(b) is whether there are any areas or sites of particular significance likely to be interfered with by the activities of the grantee party. So I turn to sites identified by Mr Cox and Ms Chestnut.

4. In my view, the evidence does establish that Christmas Creek is a site of particular significance to the native title parties. The evidence of Mr Cox and Ms Chestnut is that the Creek is an area where several important dreaming stories meet, and is an important place for ceremony. I also find that Christmas Creek is particularly important to members of the Kurungal native title party, who derive their name from it. In relation to burial sites, the Government party only accepts that the identified burial sites, namely Chestnut Bore, Bruten Hill and Mingin, may constitute sites of particular significance. However, I am satisfied that the burial sites referred to by Mr Cox and Ms Chestnut are also sites of particular significance (see Brockman Iron Pty Ltd at [35]; Bayform Holdings at [43]) and that there may be other burial sites of particular significance in the area. This is particularly so in areas where there is a significant history of occupation by previous generations of the native title party (see Iron Duyfken at [57]). In the present case, I find the evidence establishes such a history exists, and there is a significant likelihood that other, unidentified burial sites exist in the proposed licence area.

5. In relation to Ngumpan, Ms Chestnut’s evidence establishes that the site is associated with the story of the rainbow serpent, which is also connected to Christmas Creek. Ms Chestnut’s evidence establishes that Ngumpan is a site where ceremony is conducted. I also note that the Register of Aboriginal Sites lists Ngumpan (Site 13223) as a closed ceremonial site. As Ngumpan is listed as a closed site, the Register does not indicate its precise coordinates, and instead depicts a boundary around the site - the boundary extends approximately 6 kilometres within the south east portion of the proposed licence, and then north east outside of the proposed licence for approximately 4 kilometres.  There are a number of sites within the proposed licence which have boundaries some kilometres wide.  As Deputy President Sumner, noted in Butcher Wise, which covered a similar geographical location to the proposed licence in the present matter:

   Many of the sites on the Register are identified by reference to a buffer zone of 10 square kilometres making it important for consultation and negotiations to occur in relation to the precise dimensions of the site.

6. In the circumstances, I accept that Ngumpan (or at very least, areas associated with Ngumpan) may be located within the area of overlap between the site boundaries and the proposed licence. To the extent that the area is associated with Ngumpan and the ceremonies conducted in connection with the site, I find that it is of particular significance to the native title holders and there is a real risk of interference without meaningful consultation.

7. The Government party contends, to the extent that there are sites of particular significance within the proposed licence, the grantee party is aware of the existence of those sites and of its legal obligations in respect of those sites. In relation to the submissions made by the Government party, I accept the regulatory regime may reduce the likelihood of interference with sites that may be readily identified, such as Christmas Creek, Chestnut Bore, Bruten Hill and Mingin. Some of the sites are already recorded on the Register of Aboriginal Sites. However, the Government party’s arguments are less compelling in relation to the other sites, including burial sites. In the circumstances, there is a greater likelihood of interference with these sites in the absence of consultation between the grantee party and the native title parties, especially as the grantee party has not provided any details about its proposed exploration programme.

8. Deputy President Sumner also stated in Butcher Wise (at [56]) that:

   The Tribunal has long accepted that unless there is evidence to the contrary, the Tribunal will act on the basis of a presumption of regularity which presumes that the grantee party will act lawfully and I have done so in this case. The Tribunal further accepts that the Federal Court (Little v Western Australia [2001] FCA 1706; (2001) 6(4) AILR 67 at [75]-[77]) found on the facts of that case that the protective effect of the AHA was such as to make interference with sites of particular significance remote but does not accept that this is an inevitable finding in all objection inquiries. There are circumstances where the regulatory regime, including a grantee party acting lawfully and being bound by a RSHA and the obligation to conduct a heritage (site) survey will not be sufficient to render interference with a relevant site unlikely (Champion v Western Australia [2005] NNTTA 1; (2005) 190 FLR 362 at [29]-[35]). This is such a case.

9. For the reasons outlined in [59]-[63] above, I do not consider that the AHA and its associated processes are likely to prevent interference with all areas or site of particular significance to the native title holders. The Government party has stated that consideration will be giving to imposing a condition enabling the native title parties to ask the grantee party to enter into a heritage agreement, however, the nature and extent of that condition is not outlined. I conclude that the grant of the proposed licence is likely to interfere with sites of particular significance to a greater extent than previous exploration, mining and pastoral activity. Accordingly, I find that there is a real risk of interference with areas or sites of particular significance as a result of the grant of the proposed licence.

Major disturbance to land and waters - s 237(c)

1. The Tribunal is required to make an evaluative judgment of whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little at [41]-[57]).

2. The native title parties submit the grant of the proposed licence will create rights (including rights to drill, clear exploration tracks, construct drill pads, and extract up to 1000 tonnes of material) whose exercise is likely to involve a major disturbance. The native title party also submit sites exist within the proposed licence that are so significant to the local Aboriginal community that, in accordance with traditional law and culture, unauthorised persons may not be present at them, which will therefore place a burden on local Aboriginal people to look after strangers in their country.

3. In relation to major disturbance, Ms Chestnut gives the following evidence:

   ·Under Gooniyandi law and culture, people have to ask permission to come on to Country (paragraph 64).

   ·Under Gooniyandi law and culture there are consequences for people who are responsible for Country when explorers and miners go there without permission (paragraph 65).

   ·If strangers damage a site or disturb an artefact or burial place, members of the community get very upset (paragraph 68).

4. Mr Cox states the following in relation to the issue of major disturbance:

   ·Exploration could cause major disturbance to fresh springs sand waterways within the proposed licence, which are important for stories and culture (paragraph 28).

   ·Exploration may damage special places or disturb burial sites (paragraph 29).

   ·Under Yi-Martuwarra Ngurrara law, anyone who is not Yi-Martuwarra Ngurrara needs to ask permission before they can go out on Country (paragraph 30).

5. In reply, the Government party contends the grant of the proposed licence is unlikely to involve major disturbance, or create rights the exercise of which is likely to involve major disturbance, for the following reasons:  

   ·The grantee party has stated that exploration activities will be conducted in consultation with the native title party and in a way which will not adversely impact on heritage sites and will respect local Aboriginal cultural concerns.

   ·The exercise of rights conferred by the proposed licence will be regulated by the Government party’s regulatory regimes with respect to mining, Aboriginal heritage and the environment.

   ·Any authorised disturbance to land and waters may be mitigated pursuant to proposed conditions requiring rehabilitation of the land following the completion of exploration.

   ·The area of the proposed licence has been subject to prior mineral exploration and possibly mining activity and is largely covered by pastoral leases, and 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.

   ·It does not appear that the area of the proposed licence has any particular characteristics that would be likely to result in major disturbance given the activities proposed by the grantee party.

1. The Tribunal has typically found the grant of an exploration licence under the Mining Act 1978 (WA) will not involve a major disturbance for the purposes of s 237(c) unless there are special topographical, geological or environmental factors that would lead members of the community to think that the exploration would result in major disturbance to land or waters (see Champion at [75]-[77] and the cases cited therein). However, in determining whether such factors exist, the Tribunal must have regard to the concerns of the Aboriginal community, including the community life, customs, traditions and cultural concerns of the native title holders (see Dann). However, those concerns must relate to the proposed physical disturbance (Rosas at [84]). Consequently, concerns about unauthorised access will not support a finding that major disturbance is likely to occur (Goonack at [44]).

2. I note that part of the proposed licence area is subject to a National Heritage Listing (see [22] above). No party sought to rely on the National Heritage Listing and there is nothing to suggest that the National Heritage Listing has a significant effect on the question of whether the proposed licence will involve a major disturbance to land or waters. As the Tribunal observed in Goonack at [44], a National Heritage Listing is not determinative of whether major disturbance is likely.

3. Taking all of these considerations in to account, I do not find that the proposed licence is likely to involve, or create rights that are likely to involve, disturbance of the kind contemplated by s 237(c).

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E04/2190 to Brockman Exploration Pty Ltd, is not an act attracting the expedited procedure. 

Helen Shurven
Member
29 July 2013

ANNEXURE A
AFFIDAVIT OF MR NED COX

I, Ned Cox, pensioner, of Fitzroy Crossing, in the State of Western Australia, affirm:

1. My name is Ned Cox. My Aboriginal name in Yanpiyarri.

2. My license states I was born in 1952 but I remember World War II and others who know me think I was probable [sic] born in the late 1930s. I was born in Bililuna, Warnku.

3. My mother was Ngarrajuwal, she was born in near Lake Gregory. Her father was Kiki and mother was Miaree, they were from Lake Gregory, the blue sea.

4. My father’s name was Mayjar and his father was Odajuwal. My father was born near Bililuna.

5. After I was born, my father walked from Bililuna to Christmas Creek where I grew up. There were some main Traditional Owners and law men in Christmas Creek when we came to live there. The main law man was called Charcoal, his brothers included Lin Bin Jarmaku, Pinakuta, Kaliwog, Kirriti the next generation was Tuplip Tighe and Nyiti.

6. My sister married Pinakuta’s son Tulip Tigher. Lin Bin Jarmaku was my main teacher about the country where the exploration license area is. Lin Bin Jarmaku use to take me camping and teach me about the relevant country. I was taken out with the other young people and learnt all of the cultural law stories for the land around Christmas Creek which is where the exploration license area crosses.

7. Most of the people who learnt about this country are not around anymore and some of the younger people who are the direct descendants of Charcoal did not learn all of the stories although I acknowledge in this statement that they are the best people to talk for the country covered by the exploration license area. The grandchildren of Charcoal include Angus, Harry, Malke and Hazel Hobbs.

8. I would like to acknowledge Ronald, Simon; Madjo, Angus, Jagano, Daniel, Gordon and Harry Hobbs who are Charcoal’s tribe and family and Malcolm MT who is the grandson of the old people. Frankie Burns who is part of the stolen generation also claims part of this country and comes back every now and then.

1. I know the area where Brockman Resources, “the grantee party”, have applied for Exploration Licence Number E04/2190 “the exploration licence area”, very well, because I have been showed a map of the application area. The map I was shown is attached to this affidavit and marked “A”.

2. The area is Christmas Creek and the whole creek Martuwarra is important to the people who speak Walmajarri.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

1. I live at Fitzroy which is less than 50km from the tenement area.

2. Wangkatjunka community is right underneath the tenement area, the exploration license area also falls over the Christmas Creek station and Beefwood station.

3. The exploration licence area falls partly within Gooniyandi country and partly within Yi-Martuwarra Ngurrara country.

4. Yi-Martuwarra Ngurrara people use to live, camp and hunt all over the exploration license area. Now part of the exploration license area is covered by a pastoral lease with an aggressive leasee [sic] who will not let the community people go onto the tenement area. People came from any different places to live on Christmas Creek and many babies were born there.

5. We have Walmajarri language words for many places in and around the exploration license area. We call Mt Thorlan Jigan; the Poole Range is Ilirrji; Doores Bore is Minjin; Marrawarra is the word for any big river; Christmas Creek is called Kurungal where Cherrabin Rd crosses Christmas Creek near chestnut bore is called Kundibal; there is a special spring in the exploration license area called Jilargin; Salty Creek does from Cherrubin through the tenement and is called Warbiba; spring water is found at Wanjiba.

AREAS OR SITES OF PARTICULAR SIGNIFICANCE

1. I know the exploration licence area and the country around it very well. There are places in the tenement area that are important to the Yi-Martwarra [sic] Ngurrara people. We have stories for parts of the exploration license area some of which I cannot tell you because they are special law dreaming stories.

2. I have walked all over the exploration license area with the old people I have already talked about when they taught me about law culture and traditional ways for the exploration license area country. I walked along Martuwarra country with Bin Lin Jamaku and he taught me about these places when I was growing up.

JANGAGANA STORY

1. There is a dreaming story about fish which swim in Christmas Creek, Kurungal and further up the Creek to Tukulpun.

2. During the Big Dreamtime Flood Jumangkarni Warrampa, all of the barramundi, catfish and smaller fish travelled up from the Fitzroy River along the Christmas Creek junction, when they got to Tukulpun East, which is past the edge of the exploration license area near Teapot Bore. There is a hill in the way of the river to make sure the fish cannot swim up any further. When the flood comes the hill gets higher to stop the fish going any further and when the water goes down the hill goes down. For this reason only little fish are allowed to swim up Christmas Creek. The catfish and barramundi cannot swim down past Tukulpun where they get caught swimming the wrong way. On the map this place is outside the exploration license area but the story is connected to the whole creek.

BURIAL SITE

1. There is a burial site along the Creek on the exploration license area called Mingin which is near the horse paddock on the station.

2. There are also people buried on the exploration license area in Bruten Hill like my wife’s father.

3. Our special places are not marked on the map and whilst I have seen a map of the areas already listed with the Department of Indigenous Affairs I know these are not all the sites. An explorer needs to sign a heritage agreement and agree to have a survey done before they go out to these places as none of our special places are sign posted and only those who care for country, like Charcoal’s descendants and myself know where the special places are.

4. There is another important cultural story called the Baliyarra story along the flat old road, this is a dreamtime story which takes place along the exploration license area, on Charcoal’s family land.

5. There is another special story about an island in the middle of the creek which is clearly marked inside the exploration license area. This is a story I cannot tell to the person who is interviewing me but Traditional Owners would know this story and be able to help direct the explorer so that this place is not damaged. This place is in a special old people’s story.

6. There are other special places besides those listed on the Heritage Register annexed “B” and Companies need to talk to us to find out where these places are. I would like to call a meeting to share the stories with the young people because the stories are not getting passed down from Charcoal’s ancestors who do not come to meetings. I know these stories the best because I lived in these places and learnt the stories before the pastoralists fenced us out.

7. The best way to protect these places under our law and white law is to have an agreement with companies who want to explore the area.

MAJOR DISTURBANCE TO LAND OR WATER

1. I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted an exploration licence.

2. Their exploration could cause a major disturbance to the fresh springs and waterways within the tenement. It is important for our stories and culture that the water remains good.

3. Their exploration may damage special places or disturb burial sites of the Yi-Martuwarra Ngurrara people.

4. Under our law anyone who is not Yi-Martywarra Ngurrara needs to ask permission before they can go out on to our country. Traditional owners deemed as the best people to perform the Heritage Surveys can let the country know the explorer is coming and let the explorer know where our special places are.

5. We value communication with people who come out to our country. We wish to work with explorers in a respectful way where we can share information with each other. The place of the exploration license area is our country, the most respectful way to work on the country is to communicate with the Traditional Owners.

6. When strangers come onto country they need to show they are willing to work with us.

7. I acknowledge that Joy Nuggett sat and Tom Lawford sat with me when I made this statement.

ANNEXURE B

AFFIDAVIT OF MS TOPSY CHESTNUT

I, Topsy Chestnut, Pensioner, of Ngalingkadji community, on Christmas Creek Station, near Fitzroy Crossing in the State of Western Australia, affirm:

1. My name is Topsy Chestnut. My Aboriginal name in Ngoorloorna. I was born on Louisa Downs pastoral station which is in the Gooniyandi Combined #2 (WAD 6008/20000 [sic], WC2000/010) native title claim area. I was born in April 1949. I live in the Ngalingkadji community and spend a lot of time in Fitzroy Crossing for medical treatment.

2. I am also a senior member of the Kurungal native title claim (WAD6217/98, WC1997/010). The ‘Kurungal’ name comes from our name for Christmas Creek, Gooroongal.

3. I took my first steps at Bloodwood bore which is in the Kurungal claim area very close to the exploration licence area. That is a very important place for me and my family.

4. My father was Paddy and my mother was Renee. Both my parents were born on Gooniyandi country.

5. My mother

6. S parents were also Gooniyandi people.

7. My grandmother’s brother lived and died further to the south east in what is now part of the Kurungal native title claim area. His name was Punch.

8. My brother Billy was born at Chestnut Bore. That is how I can speak for areas in both claim areas. Billy and I are both members of the Gooniyandi Combined #2 and Kurungal claim groups.

9. I know the area where Brockman Resources Pty Ltd, “the grantee party”, have applied for Exploration Licence Number E04/2190, “the exploration licence area”, very well, because I have been shown maps of the application area. The maps I was shown are attached to the affidavit and marked “Attachment A” and “Attachment B”. Attachment B identifies the areas that fall within the Gooniyandi #2 and Kurungal claim areas respectively.

10. My father walked all through that country when he was working at Christmas Creek station (Jilagin). From Louisa Downs to Palm Springs and Old Kupitiya. My brother and I have also walked that country with our family.

INTERFERENCE WITH COMMUNITY OR SOCIAL LIFE

1. I live at Nagalingkadji community which is very close to the tenement area. People from that community use the exploration licence area all the time. From the maps attached hereto the exploration licence area would at some points be less than five kilometres from Ngalinkadji.

2. I go out to the exploration licence area on a weekly basis, if not more. The young people in the community go out there all the time. Sometimes they go out after school, sometimes on the weekend. They would be out in the exploration area every weekend.

3. The young boys like Braiden Chestnut, Zachariah Shaw, Taylor Chestnut, Jesse Davis, Azariah Davis and Tyrus Cherabin go swimming down in the Creek after school and go hunting and fishing on weekends. They went out hunting and fishing last weekend and they go swimming down there 3 or 4 times a week.

4. Christmas Creek is a very important area for our community. We use it as a primary source of food for our community. We also take young people out there to teach them about Country. We show them places, tell them stories. We also do ceremony in the exploration license area. In Ngumpan, we still do ceremony for the boys each year.

5. Christmas Creek essentially runs right through the middle of the exploration licence area. This is a very sensitive area for our native plants and animals. Wherever the explorer goes in the exploration area it will be very close to Christmas Creek. People should not be doing that sort of work so close to something that is so important to us.

6. Sometimes we go out there we go for days at a time and camp. At other times we just drive out from Ngalingkadji for the day.

7. If we camp, we just camp anywhere along Christmas Creek. There are good camping spots everywhere all along Christmas Creek. We don’t have any one spot in particular. We just decide when we get there.

8. When we go camping we use the creek for our drinking and cooking water. If anything happened to Christmas Creek and the water dried up or got polluted it would be terrible for us in many ways.

9. We use wood from the area to light our campfires. We don’t take wood with us. The best wood is goonggala. We collect that from around Christmas Creek.

10. When we go hunting we go for lots of different things. That area provides a lot of food for our community. We get mostly river kangaroo (walumba), goanna (wawanyi), snake (barranyi), bush turkey (galamooda) and emu (gaarnangyga).

11. We mostly use guns and dogs when we go hunting now. Some people might still take a spear and hunt the old way. The men still teach the boys how to use them.

12. When I was young the old people would take me out fishing along Christmas Creek. All the old girls from the station would head out together. The old girls taught us how to fish properly.

13. They taught us how to get moon grubs (jalinyi), grasshoppers (jadoo) and small frogs (nyanyboo) for bait. You have to dig those frogs from the ground with a stick. The old girls taught me that and I teach our young boys and girls the same thing when we take them fishing. This is how we pass that knowledge down and keep our culture strong.

14. Last month I took some young girls out there to teach them about catching food and telling them the stories. Those girls were Shilana Shaw, Leah Chestnut and Cianthia Bilgin. I try and take them out as much as I can. It is part of my responsibility to my culture.

15. When we go fishing we catch all sorts of good things to eat. We get bream (jambinbaroo), perch (boornda), archerfish (girrwali), catfish (goorloomangarri), barramundi and sawfish (galwanyi). We also get other things to eat like cherabun (jaliji), long-necked turtles (wilirrabi) and sand frogs (murra).

16. When we come back with meat or fish we have to share it with other people in the community. Our law and culture says you have to do that. Every weekend those boys come back with food which we use for the week until they go out again.

17. We are very reliant on the food that we catch in and around Christmas Creek and the exploration licence area. Both in the Gooniyandi and Kurungal parts of the exploration licence area.

18. Overall, we probably rely on bush meat and bush tucker for fifty per cent of our food needs. I try and go to the supermarket as little as possible. At some times of the year we are fully reliant on what we can get from the bush.

19. If people are out in the exploration licence area it makes it much more difficult for us to camp, hunt and fish the way we always have. If we have guns we have to think about where those other people might be. The equipment that exploration companies bring in damage and block our roads. We have had companies in the past try and tell us we can’t go to certain areas. This is our Country. They should not be allowed to tell us we can’t go to places.

20. I have seen what those companies do. They drill big holes and drag big trucks all over the place. Those trucks are dangerous for the kids in our community if they try and come down our roads. They also create dust as they drive down our roads.

21. We also collect bush tucker right through the exploration licence area. It is the same Country right along that river so we get the same animals to hunt and the same bush tucker to collect. I can go all along that place. I don’t know if I am in the Gooniyandi or Kurungal claim area. It is all the same Country all through there. I just go on my country.

22. Sometimes people come up to Ngalingkadj and we go in areas that would be more Gooniyandi. At other times we head down Christmas Creek in to what would be more Kurungal country.  It is all the same Country. I can go anywhere along Gooroongal.

23. When we get bush tucker we get lots of things. Some things we just use for tucker. Other things like the conkerberry (bryali) we use for ceremony and medicine as well.

24. You can eat the berry of the conkerberry tree. We use the branches for smoking. Smoking is sometimes for medicine and sometimes for ceremony. We use it to make babies’ bones strong and also as a welcome to country. We also use it to keep mosquitos away. When you smoke it is really soothing. It is a really good thing to use on people who are anxious or worried about something. You can also boil it up and make a type of ‘Vicks’ out of it. This is for colds and chest infections.

25. Another thing we use for coughs and colds is the sap of the bloodwood tree.

26. We also collect bush tucker like white berry (garngi), blackberry (ngooji) and bush plum (girndi). There are a variety of figs that we also collect. The green fig (jooloowoo), river fig (goonanggi), rocky fig (bangirndi) and sandpaper fig (yirmarli).

27. Yams are very important for us. We use them a lot. We get them all along Christmas Creek, right through the exploration licence area. We also get bush carrots (blayiwarra) in that area. You can use the seeds of the bush carrot as well.

28. We also use the roots of the water lily (garrinngarri), the small lily (warrwarri) and the wangoo bush in cooking.

29. We also use the Broome bush (joomboowa) for making bread. We collect the seed and grind it into flour. Then we make bread. My old people taught me to do this and I teach the young people. This is the way my old people made bread.

30. You can get a sugar king of thing from the River Red gums that grow along Christmas Creek. We call that boorrngoondoo.

31. My old people taught me everything about collecting bush tucker. When to get it. How much to get so you don’t kill it off. These are the things we have to teach our young people. We use that exploration licence area all the time to do that because it is so rich with the things we need and it is so close to Ngalingkadji.

32. My community is very reliant on the bush tucker and medicine that we collect. We use bush tucker all the time. I would eat something collected from the bush around the exploration licence area every day when I am in Ngalingkadji.

33. We also collect ochre from the exploration licence area. We collect white, yellow and red and use it in ceremony. We rub it onto the boys for junbu (dancing). We call white ochre galardi. My sister Louise uses galardi all the time to paint boys and herself.

34. There is also the jarlaloo tree that grows in the exploration licence area. It is best around Chestnut Bore.

35. We also [sic] a tree called woolooloorndoo. We use that mainly in smoking. It has a soothing effect.

36. If we get sores or cuts, things like that, we can use the roots from a small bush called lambi lambi. You boil and crush up the roots and put that on. It dries up and heals the cut.

37. Our use of the exploration licence area is part of everyday life whether it be for collecting food or conducting ceremony or allowing us to stay connect to our culture.

INTERFERENCE WITH SITES OF PARTICULAR SIGNIFICANCE

1. The maps hereto attached to this affidavit show the exploration licence area largely following the Christmas Creek.

2. Christmas Creek and the area around was very important to my old people. That area sustained them and it does the same for us.

3. My old people spent a lot of time on that Country and there are many places that are special because of that.

4. I know from information shown to me by KLC legal staff that there are a number of DIA registered sites within the exploration licence area but that is not all the places that are significant to me and my mob.

5. There are several ceremony sites along Gooroongal (Christmas Creek). Gooroongal is a place where we still have ceremony today.

6. Mostly the ceremony takes places at Ngumpan because it is close to the community but there are several sites along the river where we can go. We use all those places to take our kids and tell them the stories even if we haven’t had ceremony there for a while.

7. Chestnut Bore is a special burial place and birth place for my brother but that is not the only place where my old people are buried. There are sites like Chestnut Bore all through the exploration licence area. We don’t want people disturbing, disrespecting or ruining any of those places.

8. There are places right through the exploration licence area that our old people told us to look after.

9. The dreaming story of the rainbow serpent is around Ngumpan community. That was his original living place so there are a lot of stories for him right through all those waters, Gooroongal and the creeks and water holes. He travelled right through the exploration licence area as well as outside it.

10. Because our people spent so much time around that country there are artefacts all over the place. They are not just in one spot. They could be anywhere. We don’t want people touching them. Some people even pick those things up and take them away. You could walk or drive over these things without even knowing unless you are careful. That is why when mining and exploration companies come out here they have to check with us first. They shouldn’t be allowed to disrespect our heritage. They should work with us to make sure nothing is damaged for our kids.

11. Mining and exploration companies should ask our permission and show us respect as the Traditional Owners of the exploration licence area. How would they feel if we came into their backyard and treated it like our own, ignoring the people that live there?

12. Those companies don’t know this Country, they don’t know this community and they don’t know how we live. They don’t understand how their work could be disturbing and interrupting to us. They don’t understand how they can damage places. That is why they have to come and sit with us and talk.

13. We know that if companies do not sign those agreements with us then they will come and work without talking to us. Some of those people are very sneaky. Right now there is a drill less than one kilometre from Ngalingkadji. Thos people never signed an agreement with us to make sure they don’t do any bad things. They never talked to us. They just turned up, drive past our community all the time, do their work and never come to see us. We don’t like being treated like that.

1. We don’t want our places to be finished. We want them for our kids so Gooniyandi culture can live on. If those old people get finished our old people will get very upset and take it out on us.

MAJOR DISTURBANCE TO LAND OR WATER

1. I am aware of the activities which the grantee party could do on the exploration licence area under the Mining Act if they are granted the exploration licence.

2. I have seen the damage that bad companies do. They are always the ones that don’t talk to us. I have also worked with good companies that do things the right way. We have agreements with those companies and we help them look after our heritage. The good companies talk to us and make sure they clean up after.

3. Under Gooniyandi law and culture people have to ask permission to come on to country. Tell us what they want to do. Sit down and talk.

4. Under Gooniyandi law and culture there are consequences for people who are responsible for Country when explorers and miners go there without permission. It is also just a simple respect thing. You are using my country so you come and talk to me.

5. We know strangers to our Country don’t have to follow blackfella law when they come here and that is why we have to sit down first to make sure their work is down in a way where we can all be happy.

6. If other aboriginal people come here they know they have to talk to the right people. Some whitefellas don’t seem to want to understand that. Some do. We don’t want those ones that don’t understand coming here. They can go somewhere else.

7. If strangers damage a site, disturb an artefact or burial place, things like that, we get very upset. It is like someone has died. It feels like you have let your old people, and the whole mob, down. Why would whitefella’s [sic] want to make us feel like that when you can come and talk and stop those things happening?

8. If those mining and exploration companies make an agreement with us we will show them where they can and can’t go so they don’t harm our places and our culture.